Cite as 2026 Ark. App. 455
ARKANSAS COURT OF APPEALS
DIVISION II
No. CR-25-551
Opinion Delivered September 30, 2026
BRIAN KEITH RAYBORN APPEAL FROM THE LONOKE
COUNTY CIRCUIT COURT
APPELLANT [NO. 43CR-15-634]
V. HONORABLE SANDY HUCKABEE,
JUDGE
STATE OF ARKANSAS
APPELLEE REVERSED AND REMANDED
KENNETH S. HIXSON, Judge
This is the second time this Rule 37 appeal has been before this court. In the first
appeal, appellant Brian Keith Rayborn argued that the circuit court’s order denying his
petition for postconviction relief did not comply with the rule’s mandatory requirement of
written findings of fact and conclusions of law following a postconviction hearing. See Ark.
R. Crim. P. 37.3(c). We agreed, and we reversed and remanded for findings that comply
with the rule. See Rayborn v. State, 2025 Ark. App. 293.
After our remand, the circuit court entered a supplemental order denying Rayborn’s
petition, and Rayborn now appeals from that order.1 In this appeal, Rayborn argues that the
1
After the record was filed but before submission of the case, Rayborn’s counsel filed a motion seeking recusal or disqualification of Judge Stephanie Potter Barrett. The motion was passed to the panel for consideration with the submission of the case. Because Judge Barrett is not on this panel, the motion is moot.
circuit court again failed to make written findings of fact and conclusions of law as required
by Rule 37.3(c), and he asks that we reverse and remand for the circuit court to make such
findings. We agree that the supplemental order does not comply with Rule 37.3(c);
therefore, we must again reverse and remand for findings that comply with the rule.
A jury convicted Rayborn 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. Rayborn appealed the convictions, and we affirmed the convictions on direct appeal.
See Rayborn v. State, 2020 Ark. App. 358.
After we affirmed on direct appeal, 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 finding that “there was a preponderance of the evidence that this did occur at
the hands of Mr. Rayborn”; (2) trial counsel failed to lodge a proper Confrontation Clause
objection to his girlfriend’s statement that “he killed [her] baby”; (3) trial counsel failed to
properly object to the State’s impeachment of Rayborn with a statement he made in a courtordered mental examination concerning his prior commission of domestic abuse; and (4)
trial counsel failed to object to evidence that Rayborn had declined consent to a blood draw
during his custodial interview. 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.
2
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, and the parties made extensive arguments to the circuit court on each
point.
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.
In the first appeal from the order denying Rayborn’s Rule 37 petition, we held that the
circuit court’s order was insufficient and we wrote:
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. 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.
Rayborn, 2025 Ark. App. 293, at 5 (citations omitted).
3
After our remand, the circuit court entered the following supplemental 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, the decision of the Arkansas Court of Appeals (43CR24-241) regarding the subject case, and all other matters and things before the Court,
the Court hereby supplements the prior Rule 37 Order entered in this case and finds
and orders as follows:
1. First, the Court finds that Defendant’s Trial Counsel (hereinafter “Trial
Counsel”) did not fail to timely object to wholly improper testimony concerning
an investigator's findings, as alleged by Defendant.
2. Second, the Court finds that Trial Counsel was not ineffective in failing to lodge
a proper confrontation clause objection to the quotation of an absent person that
“He killed my baby,” as alleged by Defendant.
3. Third, the Court finds that Trial Counsel was not ineffective in failing to properly
object to the State’s impeachment of the Defendant with a statement made in a
Court-ordered mental examination, as alleged by Defendant.
4. Fourth, the Court finds that Trial Counsel was not ineffective in failing to object
to evidence that the Defendant had declined consent to a blood draw, as alleged
by Defendant.
5. Furthermore, the Court finds that Trial Counsel’s performance was a matter of
trial tactics and strategy and not grounds for postconviction relief. Neal v. State,
270 Ark. 442 (1980).
6. Accordingly, the Court hereby finds that the Defendant has failed to show that
his Trial Counsel’s performance was deficient, and Defendant has failed to show
there is a reasonable probability that, but for Trial Counsel’s performance, the
result of the subject criminal trial would have been different.
7. Therefore, the Court hereby denies the Defendant’s subject Petition for Relief
under Rule 37 of the Arkansas Rules of Criminal Procedure.
Rayborn’s appeal from this supplemental order followed.
4
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. Id.
Rayborn argues that, because the circuit court failed to make written findings and
conclusions of law on any of the points he raised below claiming ineffective assistance of
counsel and instead issued only conclusory findings, we should reverse and remand.
Rayborn asserts that the supplemental order merely overlays a rote denial of his four claims
of ineffective assistance of counsel on top of the conclusory paragraphs in the circuit court’s
initial order. 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 upon which a Rule 37 hearing is
held. Bumgarner v. State, 288 Ark. 315, 705 S.W.2d 10 (1986). In Dulaney v. State, 338 Ark.
548, 549, 999 S.W.2d 181, 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
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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.”
The present case is similar to Coleman v. State, 338 Ark. 545, 998 S.W.2d 748 (1999),
where the supreme court reversed and remanded a second time because the circuit court,
after the first remand, again failed to make the findings required by the rule. In Coleman,
the circuit court made these findings on remand:
1. The defendant-petitioner was adequately and effectively represented by the
Crittenden County Public Defender’s Office.
2. That the defendant-petitioner discussed the presentation of his case and
participated in the development of his case.
3. The defendant-petitioner has not demonstrated any factual basis to warrant a new
trial or postconviction relief.
Motion denied.
The supreme court held these findings insufficient and explained:
While the Circuit Court’s order contains the “finding of facts” as set out
above, they are conclusory. Specifically, they 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),[2] to the allegations that were raised in Coleman’s
petition and that were addressed during the postconviction hearing. Accordingly, we
must once again reverse and remand the case for findings that comply with the rule.
Coleman, 338 Ark. at 547, 998 S.W.2d 749.
2
The Strickland standard for ineffective-assistance-of-counsel claims is a two-prong analysis. Under the Strickland standard, to prevail on a claim of ineffective assistance of counsel, the petitioner must show that (1) counsel’s performance was deficient, and (2) the deficient performance prejudiced petitioner’s defense. See Neal v. State, 2025 Ark. 151, 720 S.W.3d 858.
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In the present case, the circuit court’s “findings” in the supplemental order are
insufficient because, although the court mechanically denied each of Rayborn’s four claims
in single-sentence conclusory fashion, the court offered no reasoning or explanation
whatsoever in support of its decisions. As in Coleman, the circuit court’s “findings” do not
reflect how the court applied the standard for ineffective-assistance-of-counsel claims, as set
forth in Strickland v. Washington, to the allegations that were raised in Rayborn’s petition and
that were argued during the postconviction hearing. And, as in Dulaney, because the circuit
court failed to make written findings of fact and conclusions of law with respect to Rayborn’s
specific claims, we are unable to effectively review the evidence and the court’s reasoning to
determine whether the court’s conclusions were clearly against the preponderance of the
evidence. Accordingly, we must once again reverse and remand the case for findings that
comply with Rule 37.3(c).
Reversed and remanded.
TUCKER and WOOD, JJ., agree.
Jeff Rosenzweig, for appellant.
Tim Griffin, Att’y Gen., by: Brooke Jackson Gasaway, Ass’t Att’y Gen., for appellee.
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