Carl Tice v. State of Arkansas
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ARKANSAS SUPREME COURT
No. CR 07731
Opinion Delivered
CARL TICE
Appellant
January 31, 2008
v.
APPEAL FROM THE CIRCUIT COURT
OF POPE COUNTY, CR 2003180,
HON. DENNIS SUTTERFIELD,
JUDGE; MOTION TO WITHDRAW AS
COUNSEL
STATE OF ARKANSAS
Appellee
AFFIRMED; MOTION GRANTED.
PER CURIAM
A jury convicted appellant Carl Tice of three counts of raping his daughter. Appellant
appealed the judgment and the Arkansas Court of Appeals affirmed. Tice v. State, CACR 031314
(Ark. App. Dec. 15, 2004). Appellant timely filed in the trial court a pro se petition for
postconviction relief under Ark. R. Crim. P. 37.1. The trial court appointed counsel to represent
appellant in the Rule 37.1 proceeding, and, following a hearing, the petition was denied. On appeal,
this court reversed and remanded for findings as to instructions to counsel, compliance with those
instructions, and an order in compliance with Ark. R. Crim. P. 37.3(c). Tice v. State, CR 06114
(Ark. Nov. 16, 2006) (per curiam). On remand, counsel filed an amended petition and the petition,
as amended, was again denied.
Counsel appointed to represent appellant in his Rule 37.1 proceeding, Mr. J. Michael Helms,
has now filed in this court a brief asserting that appellant’s appeal of the order denying postconviction
relief has no merit, and a motion requesting that he be granted permission to withdraw as counsel.
While a “nomerit” brief is typically filed in a direct appeal from a judgment, this court has allowed
the filing of nomerit briefs in postconviction appeals. See Hewitt v. State, 362 Ark. 369, 208 S.W.3d
185 (2005) (per curiam); Brady v. State, 346 Ark. 298, 57 S.W.3d 691 (2001) (per curiam). Anders
v. California, 386 U.S. 738 (1967) and Arkansas Supreme Court Rule 43(j)(1) set requirements for
the withdrawal of counsel for a defendant in a criminal case after a notice of appeal has been filed on
the basis that an appeal is without merit.
Under Rule 43, an attorney who wishes to withdraw from an appeal must abstract and brief
all of the rulings that were adverse to his client, listing those rulings in his argument. Mr. Helms
indicates in his brief that there were six adverse rulings, although he also contends, without further
elaboration, that there was no issue preserved for appeal. He nevertheless addressed in his brief six
grounds for relief from the amended petition.
On review of an order entered in a Rule 37.1 proceeding, we need only consider preliminary
procedural matters, any denial of an evidentiary hearing, and those rulings contained within the order
denying postconviction relief, as an appellant has an obligation to obtain a ruling on any issue to be
preserved for appeal. See Howard v. State, 367 Ark. 18, ___ S.W.3d ___ (2006); Beshears v. State,
340 Ark. 70, 8 S.W.3d 32 (2000). The trial court’s order addressed only six grounds for relief from
the amended petition, finding that the petition was inadequate as to each claim in failing to state facts
for a showing that appellant was entitled to relief. Those six issues were not fully addressed by the
trial court because the amended petition was not properly verified, and we accordingly affirm the
denial of postconviction relief and grant the motion to be relieved.
Our instructions to the trial court on remand required clarification as to whether appellant was
to be permitted to amend the petition, with assistance from Mr. Helms. Mr. Helms did file an
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amended petition and the trial court accepted it; the order clearly addressed only those grounds
presented in the amended petition and did not refer to the previous petition. While the trial court
granted permission to amend the petition, the amended petition did not comply with the verification
requirements under Rule 37.1(d), and the trial court could not consider the grounds presented in the
amended petition.
Rule 37.1(d) provides the form of affidavit, to be sworn before a notary or other official
authorized to administer oaths, required to appear on the petition. Here, appellant signed the
amended petition and his signature was notarized, but without any affidavit confirming the oath that
was sworn. As no affidavit in substantially the form provided in Rule 37.1(d) appeared on the
amended petition, the verification and the amended petition were deficient. See Bunch v. State, 370
Ark. 113, ___ S.W.3d ___ (2007) (per curiam). The trial court could not consider the issues in the
amended petition. Id. The trial court therefore correctly denied postconviction relief on all grounds
set out in the amended petition.
In accordance with Anders and Rule 43(j)(2), appellant was provided with a copy of the brief
and motion to be relieved and has submitted pro se points for reversal. We need not address the
merits of the pro se points. To the extent that the points do not simply overlap with and reassert the
issues raised in the brief, appellant’s arguments fail for the same reason as those made by Mr. Helms
in the brief. Because the amended petition was not properly verified, the trial court could not grant
postconviction relief under Rule 37.
Affirmed; motion granted.
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