Cite as 2016 Ark. 402 

No. CR-16-714

RENE GARCIA

APPELLEE

V.

STATE OF ARKANSAS

APPELLEE

Opinion Delivered November 17, 2016

PRO SE MOTION FOR 

ENLARGEMENT OF TIME TO FILE 

APPEAL BRIEF; MOTION TO FILE 

BELATED APPEAL

[APPEAL FROM THE 

WASHINGTON COUNTY CIRCUIT 

COURT, NO. 72CR-12-1865]

APPEAL DISMISSED; MOTIONS

MOOT.

PER CURIAM 

 In October 2013, appellant Rene Garcia was convicted of two counts of rape 

involving a thirteen-year-old girl and was sentenced to an aggregate term of 600 months’ 

imprisonment with 120 months’ suspended. His convictions and sentences were affirmed 

on direct appeal by the Arkansas Court of Appeals. Garcia v. State, 2015 Ark. App. 673. 

Garcia filed a timely petition for postconviction relief pursuant to Rule 37.1 of the 

Arkansas Rules of Criminal Procedure (2015). He alleged that he had been denied effective 

assistance of appellate counsel and that the trial court had violated his right to due process 

by allowing an amendment of the nature and degree of the charges and by excluding a video 

“proving that the suspect on the video was not the accused standing trial.” The trial court 

denied the petition without conducting an evidentiary hearing, and Garcia filed a timely 

notice of appeal. Now pending before this court is Garcia’s motion for an extension of time 

SUPREME COURT OF ARKANSAS.
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2

to file his brief, and a second motion styled “Motion to File a Belated Appeal,” which 

requests permission to file a belated brief. 

When it is clear from the record that the appellant cannot prevail on appeal of an 

order that denied postconviction relief, we dismiss the appeal. Wheeler v. State, 2015 Ark. 

233, 463 S.W.3d 678 (per curiam). As it can be determined from the record that Garcia 

could not prevail, the appeal is dismissed, which renders the motions moot. 

Garcia’s claims for relief focused on allegations that appellate counsel failed to timely 

file an appellate brief. However, Garcia could not demonstrate prejudice because, due to 

the dilatory conduct cited in his Rule 37.1 petition, Garcia’s original appellate counsel had 

been replaced and new appellate counsel was appointed. Garcia’s remaining allegations were 

conclusory and lacked sufficient facts to establish a basis for postconviction relief. See

Henington v. State, 2012 Ark. 181, at 6, 403 S.W.3d 55, 60 (Conclusory allegations that are 

unsupported by facts do not provide a basis for either an evidentiary hearing or 

postconviction relief.). Moreover, Garcia’s conclusory allegations were based on claims of 

trial-court error which are generally not cognizable in Rule 37.1 proceedings. See Green v. 

State, 2013 Ark. 455, at 9 (per curiam) (Assertions of trial error, even those of constitutional 

dimension, must be raised at trial and on direct appeal.). 

Furthermore, while Garcia filed a timely Rule 37.1 petition, which was signed and 

notarized, he failed to verify his petition as required by Rule 37.1(c). Randle v. State, 2016 

Ark. 228, at 2, 493 S.W.3d 309 (per curiam). In 2006, Rule 37.1 was amended to more 

clearly require that a Rule 37.1 petition be verified. Id. That amendment also required that 

a form affidavit be attached to the petition, which Garcia did not attach to his petition. Id. 
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3

Under Rule 37.1(c)(2015), Garcia was required to complete this form and to swear that he 

had read the petition and that the facts stated in the petition are true, correct, and complete 

to the best of the his knowledge and belief. Randle, 2016 Ark. 228, at 3, 493 S.W.3d 309, 

310. Moreover, the affidavit must be executed before a notary or other officer authorized 

by law to administer oaths, in substantially the following form: 

AFFIDAVIT

The petitioner states under oath that (he) (she) has read the foregoing petition for 

postconviction relief and that the facts stated in the petition are true, correct, and complete 

to the best of petitioner's knowledge and belief. 

 __________________________ 

Petitioner’s signature 

Subscribed and sworn to before me the undersigned officer this ____ day of 

__________, 20___. 

 ___________________________ 

Notary or other officer 

This court has held that the verification requirement for postconviction petitions is 

of substantive importance to prevent perjury. Id. at 3, 493 S.W.3d at 310; see also Bradley 

v. State, 2015 Ark. 144, at 3, 459 S.W.3d 302, 304-05; Boyle v. State, 362 Ark. 248, 250, 

208 S.W.3d 134, 136 (2005). Accordingly, pursuant to Rule 37.1(d) (2015) “the circuit 

court or any appellate court shall dismiss any petition that fails to comply with subsection 

(c) of this rule.” Bradley, 2015 Ark. 144, at 4, 459 S.W.3d at 305. Because Garcia failed to 

comply with this substantive requirement of Rule 37.1(c), this appeal would be subject to 
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4

summary dismissal even if Garcia’s Rule 37.1 petition had not consisted of conclusory claims 

and allegations that were not cognizable under the Rule. 

 Appeal dismissed; motions moot.