holding that circuit court’s order denying untimely motion to withdraw guilty plea after a decision on merits should have been treated as petition for postconviction relief and dismissed because it had not been verified
How later courts described this case
- holding that circuit court’s order denying untimely motion to withdraw guilty plea after a decision on merits should have been treated as petition for postconviction relief and dismissed because it had not been verified
Written by the judges who cited it.
The opinion
Cite as 2021 Ark. App. 170
Elizabeth Perry
ARKANSAS COURT OF APPEALS
I attest to the accuracy and
DIVISION II
integrity of this document
No. CR-20-380
2023.06.26 15:20:49 -05'00'
2023.001.20174
Opinion Delivered: April 14, 2021
IAN BAYLEE MOYTOY
APPELLANT APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
V. SEVENTH DIVISION
[NO. 60CR-19-4180]
STATE OF ARKANSAS
APPELLEE HONORABLE BARRY SIMS, JUDGE
DISMISSED
MIKE MURPHY, Judge
With the assistance of counsel, appellant Ian Moytoy pleaded guilty to one count of
theft of property, a Class B felony. Moytoy received a five-year sentence in the Arkansas
Department of Correction (ADC) to run concurrently with the “federal time” that he was
currently serving. On appeal, he argues that the circuit court erred in denying his motion
to withdraw his plea. We dismiss Moytoy’s appeal for lack of jurisdiction.
On March 11, 2020, the circuit court entered the sentencing order that reflected
Moytoy’s plea. On April 8, Moytoy filed a pro se “motion to withdraw plea pursuant to
Arkansas Rule of Criminal Procedure 26(b), motion to correct illegal sentence pursuant to
A.C.A sec. 16-90-11; or in alternative rule 37.” The motion alleged that he did not receive
the benefit he bargained for in his plea deal. Specifically, Moytoy contended that he agreed
to plead guilty to a sentence of five years’ imprisonment to run concurrently with a federal
prison sentence that he was already serving and that he serve his time in federal prison—not
in the ADC. At the time of the motion, Moytoy alleged he was serving his time at an ADC
unit. Because it was filed after the first sentencing order, it is treated as a petition under Rule
37, and not a plea withdrawal. See Webb v. State, 365 Ark. 22, 24, 223 S.W.3d 796, 798
(2006) (holding that when a motion to withdraw a guilty plea is filed after the sentencing
order, we review it on appeal as a motion for postconviction relief under Rule 37). The
court denied the petition in an order entered on May 26, 2020, after addressing the merits.
However, because the petition was not verified, it should have been dismissed under Rule
37.1(d) for lack of jurisdiction:
Rule 37.1(c) requires that the petition be accompanied by an affidavit
that is sworn before a notary or other officer authorized to administer oaths;
in substantially the form noted in that provision; and attesting that the facts
stated in the petition are true, correct, and complete to the best of petitioner’s
knowledge and belief. Rule 37.1(d) requires that the circuit court reject an
unverified petition and that the circuit court or the appellate court dismiss a
petition that fails to comply with Rule 37.1(c).
Brown v. State, 2015 Ark. 97, at 2.
The verification requirement for a postconviction petition is of substantive
importance to prevent perjury. Id. A circuit court lacks jurisdiction to consider arguments
raised in an unverified Rule 37.1 petition. Id. When the circuit court lacks jurisdiction, the
appellate court also lacks jurisdiction. Id.
Dismissed.
KLAPPENBACH and GRUBER, JJ., agree.
William R. Simpson, Jr., Public Defender, by: Clint Miller, Deputy Public Defender,
for appellant.
Leslie Rutledge, Att’y Gen., by: Michael L. Yarbrough, Ass’t Att’y Gen., for appellee.
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