Ian Baylee Moytoy v. State of Arkansas

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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