Dewayne Van Tilmon v. State of Arkansas

2025 Ark. App. 88

• Court: Court of Appeals of Arkansas
• Decided: February 12, 2025
• Status: Published

Opinion

Cite as 2025 Ark. App. 88 ARKANSAS COURT OF APPEALS DIVISION II No. CR-23-698

Opinion Delivered February 12, 2025

DEWAYNE VAN TILMON APPEAL FROM THE GARLAND APPELLANT COUNTY CIRCUIT COURT [NO. 26CR-19-701] V. HONORABLE MARCIA R. HEARNSBERGER, JUDGE STATE OF ARKANSAS APPELLEE DISMISSED

KENNETH S. HIXSON, Judge

Appellant Dewayne Van Tilmon filed his pro se appeal after the Garland County

Circuit Court entered an order denying his amended petition for postconviction relief filed

pursuant to Arkansas Rule of Criminal Procedure 37.1.1 Appellant argues on appeal that

the circuit court erred in denying his amended petition for postconviction relief because (1)

his trial counsel was ineffective for failing to properly move for a directed verdict; (2) his trial

counsel was ineffective for failing to impeach the victim and witnesses with inconsistent

statements; (3) his trial counsel was ineffective for failing to adequately prepare for trial; (4)

his trial counsel was ineffective for failing to investigate a Brady violation; (5) his trial counsel

was ineffective for failing to investigate his mental state; (6) his trial counsel was ineffective

1 This court granted appellant’s motion to file his belated appeal on January 31, 2024. Van Tilmon v. State, 2024 Ark. App. 71. for failing to object to prosecutorial misconduct; (7) his trial counsel was ineffective for

failing to investigate the facts of the case and the State’s witnesses; (8) his trial counsel was

ineffective for failing to request a rape-shield hearing; (9) his trial counsel was ineffective for

failing to request a continuance; (10) his trial counsel was ineffective for failing to investigate

and introduce mitigating evidence; (11) his trial counsel was ineffective for failing to advise

him of possible defenses and his right to testify; (12) the trial court abused its discretion by

not allowing him to “petition” for documents and subpoena trial witnesses for his

postconviction proceedings; and (13) there was insufficient evidence to convict him of rape.

We dismiss appellant’s appeal for lack of jurisdiction.

Appellant was convicted by a Garland County Circuit Court jury of two counts of

rape. The charges arose from his acts involving his girlfriend’s daughter, Minor Child 1

(MC1). MC1 told her mother that appellant had been raping her, and MC1’s counselor

reported it to the child-abuse hotline. After an investigation, appellant was arrested. He was

sentenced to serve a total of 1,200 months’ imprisonment as a habitual offender in the

Arkansas Division of Correction. He appealed his conviction, and we affirmed. Tilmon v.

State, 2022 Ark. App. 291, 646 S.W.3d 286. The mandate issued July 1, 2022.

Appellant timely filed his initial petition for postconviction relief on August 29, 2022.

After first receiving permission from the circuit court, appellant filed an amended petition

for postconviction relief on December 27, 2022. The circuit court held an evidentiary

hearing on May 23, 2023. At the beginning of the hearing, appellant clarified that he wished

to proceed regarding the allegations he made in his amended petition for postconviction

2 relief filed on December 27, 2022. The circuit court filed an order denying appellant’s

amended petition for postconviction relief on June 28, 2023, after addressing the merits.

However, because the amended petition was not verified, it should have been dismissed

under Rule 37.1(d) for lack of jurisdiction. Moytoy v. State, 2021 Ark. App. 170.

The December 27, 2022, amended petition now before us was not in compliance

with Rule 37.1 since it was not verified in accordance with Rule 37.1(c). 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 must dismiss a

petition that fails to comply with Rule 37.1(c). See Branning v. State, 2014 Ark. 256.

Here, there was no verification that the facts stated in the amended petition were

true, correct, and complete as required by the Rule. The verification requirement for a

petition for postconviction relief is of substantive importance to prevent perjury. Bradley v.

State, 2015 Ark. 144, 459 S.W.3d 302. For that purpose to be served, the petitioner must

sign the petition and execute the requisite affidavit or verification. Id. A circuit court lacks

jurisdiction to consider arguments raised in an unverified amended petition. Moytoy, supra.

When the circuit court lacks jurisdiction, the appellate court also lacks jurisdiction. Id.

Accordingly, we must dismiss this appeal.

Dismissed.

3 BARRETT and MURPHY, JJ., agree.

Dewayne Van Tilmon, pro se appellant

Tim Griffin, Att’y Gen., by: A. Evangeline Bacon, Ass’t Att’y Gen., for appellee.