Stanley Isaac Nelson v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 04-732

NOT DESIGNATED FOR PUBLICATION

STANLEY ISAAC NELSON

Appellant

v.

STATE OF ARKANSAS

Appellee

Opinion Delivered November 17, 2005

PETITION FOR REHEARING [APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY, CR 2001-936, HON TIMOTHY DAVIS FOX, JUDGE]

PETITION FOR REHEARING DENIED

PER CURIAM

In a bench trial, Stanley Isaac Nelson was found guilty of one count of unlawful discharge of a firearm and sentenced to 360 months' imprisonment in the Arkansas Department of Correction. Nelson appealed, and the court of appeals affirmed in an unpublished decision. Nelson v. State, CACR 02-867 (Ark. App. May 7, 2003). Nelson filed a timely petition for postconviction relief under Ark. R. Crim. P. 37.1, which was denied. Nelson appealed the order and, in an unpublished opinion, this court dismissed the appeal because appellant's petition was not properly verified, in that the petitioner had not personally signed the verification. Nelson v. State, CR 04-732 (Ark. Sept. 22, 2005). Appellant now brings this petition for rehearing, requesting this court to vacate our opinion and reach the merits of the appeal.

Rule 2-3(g) of the Rules of the Arkansas Supreme Court provides that a petition for rehearing should be used to call attention to specific errors of law or fact which the opinion is thought to contain and not to repeat arguments already considered and rejected by this court. Appellant contends this court erred in dismissing the appeal because the decision in Boyle v. State, Ark. , S.W.3d (May 5, 2005) (per curiam) had not been issued at the time appellant's petition was filed. Appellant asserts application of Boyle retroactively would violate due process in that appellant's counsel should have been permitted to verify the petition on behalf of the petitioner until that decision provided notice of the requirement. We do not agree.

Appellant argues that there has been a practice to allow counsel to verify pleadings on behalf of the client, citing a civil case in support. He further cites Ark. R. Civ. P. 11 for the proposition that an attorney's signature is a veritable verification. This court has recognized that postconviction relief proceedings are civil in nature and applied the Rules of Appellate Procedure-Civil when necessary. Sanders v. State, 352 Ark. 16, 98 S.W.3d 35 (2003). In Sanders, however, we declined to apply a rule of civil procedure, Ark. R. Civ. P. 56, to criminal cases. Id. at 25, 98 S.W.3d at 41. We do not apply Ark. R. Civ. P. 11 here, as Ark. R. Crim. P. 37.1(d) very clearly requires that the petition must be verified.

The basis for permitting an attorney to simply sign pleadings in civil cases, and not cause the pleading to be verified, is not applicable to postconviction proceedings, and our case law has provided ample notice to that effect, well before Boyle. As the State points out in its brief, the concern with the potential for perjury is heightened in a postconviction proceeding where the attorney's client has already been convicted and is incarcerated. Moreover, the attorney representing the petitioner under Ark. R. Crim. P. 37.1 almost certainly did not represent that petitioner at trial; the trial attorney's conduct must be throughly examined and questioned by counsel for a petitioner under Ark. R. Crim. P. 37.1. The attorney in a postconviction proceeding would have no personal knowledge of many of the facts in the petition to be verified.

It is well settled that the verification requirement for a postconviction-relief petition is of substantive importance to prevent perjury. Shaw v. State, ___ Ark. ___, ___S.W.3d ___ (June 30, 2005) (per curiam) (citing Bolye and Knappenberger v. State, 278 Ark. 382, 647 S.W.2d 417 (1983)); Worthem v. State, 347 Ark. 809, 66 S.W.3d 665 (2002) (per curiam); Carey v. State, 268 Ark. 332, 596 S.W.2d 688 (1980). That purpose is not served where counsel verifies the petition on behalf of his client. Appellant urges that this requirement that the petitioner personally verify his petition was a new and unforeseeable rule of law, but, prior to Boyle, this court stated that postconviction relief as sought through a petition under Rule 37.1 "requires that the petitioner be in custody and that the petition be verified by the petitioner." Westbrook v. State, 286 Ark. 192, 691 S.W.2d 123 (1985) (emphasis added). Boyle merely confirmed a position already announced by this court, one that should not have been unexpected. As there was no error of law or fact in the opinion, we must deny appellant's petition for rehearing.

Petition for rehearing denied.