Cite as 2023 Ark. App. 502

ARKANSAS COURT OF APPEALS

DIVISION I

No. CR-23-82

RICKY ROBERTS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

Opinion Delivered November 1, 2023

APPEAL FROM THE POPE

COUNTY CIRCUIT COURT

[NO. 58CR-22-193]

HONORABLE JAMES DUNHAM, 

JUDGE

REVERSED AND REMANDED

MIKE MURPHY, Judge

Ricky Roberts appeals the trial court’s dismissal of his petition for postconviction 

relief filed pursuant to Rule 37.1 of the Arkansas Rules of Criminal Procedure (2021). On 

appeal, Roberts contends the trial court erred in concluding it did not have jurisdiction due 

to a lack of an explicit assertion in the petition that he was in custody. We agree with Roberts 

and reverse and remand for the trial court to consider the petition on the merits. 

On August 1, 2022, appellant Ricky Roberts pleaded guilty as a habitual offender to 

one count of negligent homicide, one count of unauthorized use of a vehicle, and one count 

of driving while intoxicated. The circuit court sentenced Roberts to thirty years’ 

incarceration in the Arkansas Division of Correction on the charge of negligent homicide, 

one year in county jail on the charge of unauthorized use of a motor vehicle, and one day in 
2

county jail for the charge of driving while intoxicated. The sentencing order was entered on 

August 3, 2022. 

On September 9, 2022, Roberts filed a petition for postconviction relief under 

Arkansas Rule of Criminal Procedure 37 claiming his trial counsel was ineffective for 

negotiating a plea deal in which he received the maximum possible sentence. The circuit 

court dismissed Roberts’s petition, finding that Roberts failed to plead in his petition that 

he was currently in custody. As a result, the circuit court concluded it did not have 

jurisdiction to consider the merits of Roberts’s claim. On appeal, Roberts argues the circuit 

court erred in dismissing his petition. 

The very narrow issue before this court today is whether the circuit court erred in 

dismissing Roberts’s Rule 37 petition for failure to assert in the pleading that he was, in fact,

in custody. We hold that it did. Rule 37 provides that “a petitioner in custody under sentence 

of a circuit court claiming a right to be released, or to have a new trial, or to have the original

sentence modified” on four enumerated grounds “may file a petition in the court that 

imposed the sentence, praying that the sentence be vacated or corrected.” Ark. R. Crim. P. 

37(a). And it is true that if a petitioner is not in custody, the circuit court lacks jurisdiction 

to consider the merits of his Rule 37 petition. Chandler v. State, 2021 Ark. App. 103, at 7–8, 

618 S.W.3d 454, 458. Rule 37, however, does not require that the petitioner assert he is in 

custody. It just requires him to be in custody. 

The first paragraph of Roberts’s petition states, “Roberts pleaded guilty to all counts 

as charged in exchange for the maximum possible sentence on each count for an aggregate 
3

sentence of 30 years imprisonment.” Later in the petition, it further provides, “On August 

1, 2022, Roberts entered a negotiated guilty plea to all three counts as charged in exchange 

for maximum sentences on each count. A sentencing order was entered on August 3, 2022 

sentencing him to an aggregate term of 30 years imprisonment.” Could the petition have 

been more explicit? Yes. However, there was nothing in the record to indicate that Roberts 

was not in custody. 

Citing Coplen v. State, 298 Ark. 272, 766 S.W.2d 612 (1989); Williamson v. State, 2012 

Ark.170; and Branning v. State, 2014 Ark. 256, the court dismissed Roberts’s petition with 

prejudice, reasoning that Roberts was “required to state he is a ‘Petitioner in custody’ for the 

Court to have jurisdiction[.]” However, neither this court nor our supreme court has ever 

interpreted Rule 37 this way. Even in Coplen, the supreme court states simply that “Coplen 

was not in custody.” It made no mention of what was pleaded. (Williamson and Branning both 

pertain to unverified petitions.) 

Instead, we find Branning v. State, 2010 Ark. 401 (the predecessor to Branning, supra) 

more persuasive. In Branning, the circuit court had dismissed Branning’s petition for 

postconviction relief because Branning was on parole when he filed the petition, and

Branning was not in custody at the time of the hearing on the petition. The written order 

denying the petition, however, was not entered until almost six months later—after 

Branning’s parole had been revoked and Branning was in custody. Branning, accordingly, 

suggests that the trial court must determine the actual state of the defendant at the entry of 

the order before a petition is dismissed entirely for lack of jurisdiction on the basis of custody. 
4

This interpretation further conforms to the directive in Arkansas Rule of Criminal 

Procedure 1.3 that our rules shall be construed to secure simplicity in procedure, protect the 

fundamental rights of the individual, and preserve the public interest. There is nothing in 

this record to affirmatively indicate that Roberts was not in custody at the entry of the order 

disposing of his petition. Accordingly, we hold that the trial court erred in finding that it 

was without jurisdiction solely on the basis of the pleadings. 

Reversed and remanded. 

WOOD and BROWN, JJ., agree.

Lassiter & Cassinelli, by: Michael Kiel Kaiser, for appellant.

Tim Griffin, Att’y Gen., by: Walker K. Hawkins, Ass’t Att’y Gen., for appellee.