Brian Keith Rayborn v. State of Arkansas

2025 Ark. App. 293

• Court: Court of Appeals of Arkansas
• Decided: May 7, 2025
• Status: Published

Opinion

Cite as 2025 Ark. App. 293 ARKANSAS COURT OF APPEALS DIVISION IV No. CR-24-241

Opinion Delivered May 7, 2025

BRIAN KEITH RAYBORN APPEAL FROM THE LONOKE COUNTY APPELLANT CIRCUIT COURT [NO. 43CR-15-634] V. HONORABLE SANDY HUCKABEE, JUDGE STATE OF ARKANSAS APPELLEE REVERSED AND REMANDED

KENNETH S. HIXSON, Judge

Appellant Brian Keith Rayborn appeals from an order denying his petition for

postconviction relief filed pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure.

Rayborn argues on appeal that, because the circuit court failed to make written findings on

any of the four points he raised below claiming ineffective assistance of counsel as required

by Rule 37.3(c), we should reverse and remand for the circuit court to make such findings.

Rayborn argues in the alternative that, if we do not remand for findings and we instead reach

the merits of his claims of ineffective assistance of counsel, we should reverse because each

of his four claims has merit. We agree with Rayborn’s first point, and we reverse and remand

for written findings of fact.

Rayborn was convicted in a jury trial of second-degree murder committed against his

girlfriend’s one-year-old son and second-degree domestic battering committed against her three-year-old son. For these offenses, Rayborn was sentenced as a habitual offender to

ninety years in prison, which included sentence enhancements for the offenses having been

committed in the presence of a child. After Rayborn’s convictions, he appealed to this court,

and we affirmed his convictions on direct appeal. Rayborn v. State, 2020 Ark. App. 358

(Rayborn I).

After we affirmed on direct appeal and our mandate was issued in Rayborn I, Rayborn

filed a timely petition for postconviction relief. In his petition, Rayborn raised these four

points arguing ineffective assistance of counsel: (1) trial counsel failed to timely object to

wholly improper testimony concerning an investigator’s findings; (2) trial counsel failed to

lodge a proper Confrontation Clause objection to his girlfriend’s statement that “he killed

my baby”; (3) trial counsel failed to properly object to the State’s impeachment of Rayborn

with a statement he made in a court-ordered mental examination; and (4) trial counsel failed

to object to evidence that Rayborn had declined consent to a blood draw. In his petition,

Rayborn also requested a hearing. The State filed a response to Rayborn’s petition, arguing

that none of the four points raised in the petition afforded Rayborn any relief and that the

petition should be denied.

The circuit court held a hearing on Rayborn’s petition for postconviction relief. At

the hearing, Rayborn’s trial counsel testified regarding each of the four claims raised in

Rayborn’s petition. At the conclusion of the hearing, the circuit court invited each party to

submit proposed findings of fact and conclusions of law, and the court took the matter under

2 advisement. Both Rayborn and the State subsequently filed proposed findings of fact and

conclusions of law.

After the hearing, the circuit court entered the following order:

Comes the Court, and upon consideration of the Defendant’s Petition for Relief for ineffective assistance of counsel under Rule 37 of the Arkansas Rules of Criminal Procedure, the State’s Response, the pleadings, the testimony, the evidence, the arguments of counsel, the Briefings, the proposed findings of fact and conclusions of law submitted by counsel, and all other matters and things before the Court, the Court hereby finds and orders as follows:

1. The Defendant has failed to show that his trial counsel’s performance was deficient.

2. The Defendant has failed to show that there is a reasonable probability that, but for trial counsel’s performance, the result of the subject criminal trial would have been different.

3. Therefore, the Court hereby denies the Defendant’s subject Petition for Relief under Rule 37 of the Arkansas Rules of Criminal Procedure.

This appeal followed.

Our standard of review in Rule 37 cases is well settled. The appellate court does not

reverse the denial of postconviction relief unless the circuit court’s findings are clearly

erroneous or clearly against the preponderance of the evidence. Ali v. State, 2021 Ark. App.

482. A finding is clearly erroneous when, although there is evidence to support it, after

reviewing the totality of the evidence, the appellate court is left with the definite and firm

conviction that a mistake has been made.

3 Rayborn argues that because the circuit court failed to make written findings on any

of the points he raised below claiming ineffective assistance of counsel and instead issued

only conclusory findings, we should reverse and remand. We agree.

In pertinent part, Rule 37.3(c) of the Arkansas Rules of Criminal Procedure provides

that after a hearing, “[t]he court shall determine the issues and make written findings of fact

and conclusions of law with respect thereto.” (Emphasis added.) The supreme court has,

without exception, held that this rule is mandatory and requires written findings. Scott v.

State, 351 Ark. 619, 96 S.W.3d 732 (2003). The supreme court has made it clear that the

requirement of written findings of fact applies to any issue on which a Rule 37 hearing is

held. Coleman v. State, 338 Ark. 545, 998 S.W.2d 748 (1999).

In Dulaney v. State, 338 Ark. 548, 999 S.W.2d 181 (1999), the supreme court noted

that without the circuit court’s sufficient written findings on the points raised in the

appellant’s petition for postconviction relief, the appellate court is “unable to effectively

review the evidence and the court’s reasoning to determine if the court’s conclusions were

clearly against the preponderance of the evidence.” Id. at 549, 999 S.W.2d at 182. In

Dulaney, the supreme court remanded to the circuit court for fact-finding on the arguments

raised in the appellant’s Rule 37 petition.

In Coleman, supra, the supreme court held that the circuit court’s “findings of facts”

were conclusory. The supreme court stated:

Specifically, [the findings of fact] do not reflect how the trial court applied the standard for ineffective assistance of counsel claims, as set forth in Strickland v. Washington, 466 U.S. 668 (1984), to the allegations that were raised in Coleman’s

4 petition and that were addressed during the postconviction hearing. Accordingly, we must . . . reverse and remand the case for findings that comply with the rule.

Coleman, 338 Ark. at 547, 998 S.W.2d at 749.

In the present case, the circuit court’s “findings” in its order as set out above are

merely conclusory, and the circuit court failed to address the specific allegations made in

Rayborn’s petition. Because the circuit court failed to make sufficient written findings, this

court cannot effectively review the evidence and the circuit court’s reasoning to determine if

the circuit court’s conclusions were clearly against the preponderance of the evidence. See

Dulaney, supra; Coleman, supra. Accordingly, we reverse and remand this case in accordance

with Rule 37.3(c) for findings on the arguments raised in Rayborn’s petition that comply

with the rule.

Reversed and remanded.

VIRDEN and BROWN, JJ., agree.

Jeff Rosenzweig, for appellant.

Tim Griffin, Att’y Gen., by: Joseph Karl Luebke, Ass’t Att’y Gen., for appellee.