22CR-09-99. HONORABLE DON GLOVER, JUDGE.
Gonder, appellant, Pro se.
Rutledge, Att'y Gen., by: Vada Berger, Ass't
Att'y Gen., for appellee.
PRO SE APPEAL FROM THE DREW COUNTY CIRCUIT COURT AND
MOTIONS TO SUPPLEMENT RECORD, TO FILE A SUPPLEMENTAL
ARGUMENT, AND FOR APPOINTMENT OF COUNSEL
2010, appellant Duane Gonder entered a plea of guilty in the
Drew County Circuit Court to first-degree murder and
aggravated assault in case no. 22CR-09-99 for which he was
sentenced to 360 and 72 months' imprisonment,
respectively. He also entered a guilty plea on the same day
to furnishing prohibited articles into a correctional
facility in case no. 22CR-10-53 for which he was sentenced to
120 months' imprisonment. The sentences in both cases
were ordered served consecutively for an aggregate term of
552 months' imprisonment.
20, 2015, Gonder filed in the trial court a pro se petition
to reinvest jurisdiction in the trial court to consider a
petition for writ of error coram nobis in 22CR-09-99. While
the petition was filed only in 22CR-09-99, it raised issues
pertaining to 22CR-10-53 as well as 22CR-09-99. Gonder later
filed an amended petition in 22CR-09-99 in which he again
raised arguments in both cases. In its order, the trial court
addressed the claims raised with respect to both cases and
declined to issue the writ. Gonder brings this appeal. Gonder
filed motions seeking to supplement the record, to file a
supplemental argument in this appeal, and for appointment of
counsel. Because the appeal is clearly without merit, those
motions are moot.
standard of review of an order entered by the trial court on
a petition for writ of error coram nobis is whether the trial
court abused its discretion in granting or denying the writ.
Newman v. State, 2014 Ark. 7. An abuse of discretion
occurs when the court acts arbitrarily or groundlessly.
Nelson v. State, 2014 Ark. 91, 431 S.W.3d 852. The
trial court's findings of fact, on which it bases its
decision to grant or deny the petition for writ of error
coram nobis, will not be reversed on appeal unless they are
clearly erroneous or clearly against the preponderance of the
evidence. Newman, 2014 Ark. 7. There is no abuse of
discretion in the denial of error-coram-nobis relief when the
claims in the petition were groundless. Nelson, 2014
Ark. 91, 431 S.W.3d 852.
of error coram nobis is an extraordinarily rare remedy.
State v. Larimore, 341 Ark. 397, 17 S.W.3d 87
(2000). Coram-nobis proceedings are attended by a strong
presumption that the judgment of conviction is valid.
Id. The function of the writ is to secure relief
from a judgment rendered while there existed some fact that
would have prevented its rendition if it had been known to
the trial court and which, through no negligence or fault of
the defendant, was not brought forward before rendition of
the judgment. Newman v. State, 2009 Ark. 539, 354
S.W.3d 61. The petitioner has the burden of demonstrating a
fundamental error of fact extrinsic to the record.
Roberts v. State, 2013 Ark. 56, 425 S.W.3d 771.
writ is allowed only under compelling circumstances to
achieve justice and to address errors of the most fundamental
nature. Id. A writ of error coram nobis is available
for addressing certain errors that are found in one of four
categories: (1) insanity at the time of trial, (2) a coerced
guilty plea, (3) material evidence withheld by the
prosecutor, or (4) a third-party confession to the crime
during the time between conviction and appeal. Howard v.
State, 2012 Ark. 177, 403 S.W.3d 38.
first point for reversal of the order is that the trial court
abused its discretion by accepting his guilty plea because
the plea was coerced by " overcharging" by the
State. He bases the claim on the fact that he was originally
charged with kidnapping and aggravated residential burglary
and that those charges were dropped in exchange for his plea
of guilty. He contends that those charges, as well as the
furnishing-a-prohibited-articles charge and the
capital-murder charge that was reduced to first-degree
murder, were not supported by the evidence.
concedes that this court has held that a petitioner's
fear of a more severe sentence, if he opts to stand trial
rather than enter a plea of guilty, is not coercion which
warrants granting a writ of error coram nobis. Nevertheless,
he argues that the circumstances of his case are such that
the writ is warranted because there was no " report,
prosecution cover sheet or a primary victim information sheet
concerning the kidnapping and aggravated-residential burglary
charges, which the State used to enhance the murder charge to
capital murder." He also argues that the State withheld
evidence from the defense in the form of victim-impact
statements and " the classification of the punishment
and statute on the charge of furnishing a prohibited
article," a crime of which he is actually innocent.
trial court held that Gonder's claims did not justify
granting coram-nobis relief, and we agree. With respect to
Gonder's contention that his guilty plea was coerced by
overcharging, his argument primarily rested on the strength
of the evidence against him. In his petition, he asserted at
length that the facts that supported the original charges
were insufficient to sustain the charges. Issues concerning
the sufficiency of the evidence or the credibility of
witnesses, however, are not cognizable in coram-nobis
proceedings. McArthur v. State, 2014 Ark. 367, at 7,
439 S.W.3d 681, 685, cert. denied, ___ U.S. ___, 135
S.Ct. 1432, 191 L.Ed.2d 391 (2015). Gonder did not
demonstrate that his plea was obtained through intimidation,
coercion, or threats inasmuch as the petition did not allege
that the plea was the result of fear, duress, or threats of
mob violence as previously recognized by this court as
cognizable for coram-nobis relief. Noble v. State,
2015 Ark. 141, 460 S.W.3d 774. The mere fact that Gonder was
aware that he could receive a more severe penalty if he went
to trial did not rise to the level of coercion within the
purview of a coram-nobis proceeding. Nelson, 2014
Ark. 91, 431 S.W.3d 852.
second ground for reversal of the trial court's order,
Gonder argues that the State withheld material evidence
pertaining to the charge of furnishing a prohibited article
into a correctional facility. If the claim were proven, it
would be ground for the writ because the State's
withholding of material evidence is cause to grant the ...