FROM THE DREW COUNTY CIRCUIT COURT. NO. 22CV-15-48. HONORABLE
TED C. CAPEHEART, JUDGE.
Jefferson Gonder, Pro se, appellant.
Duane Jefferson Gonder, was charged with capital murder,
aggravated assault, aggravated residential burglary,
kidnapping, and furnishing prohibited articles. Pursuant to a
plea agreement, the capital-murder charge was reduced to
first-degree murder, the kidnapping and burglary charges were
dropped, and Gonder pleaded guilty to one count of
first-degree murder, one count of aggravated assault, and one
count of attempting to furnish a prohibited article. Gonder
was sentenced to an aggregate term of 552 months'
imprisonment, which was the sentence agreed upon in the plea
agreement. Gonder filed a petition for postconviction relief,
which was denied by the trial court, and we dismissed the
appeal because the allegations contained in the
postconviction petition were such that it was conclusive on
its face that no relief was warranted. Gonder v.
State, 2011 Ark. 248, 382 S.W.3d 674, (per curiam).
before this court is Gonder's appeal from the denial of a
civil complaint and an amended civil complaint filed against
the Drew County deputy prosecutor, Franklin
Spain, alleging that Spain had misstated
facts during Gonder's plea hearing and withheld
victim-impact statements. In the original complaint, Gonder
asked for compensatory and punitive damages. Spain filed a
motion to dismiss asserting that the complaint is barred by
prosecutorial immunity, sovereign immunity, and the statute
of limitations. Gonder then filed an amended complaint
requesting injunctive relief rather than monetary damages. A
motion to dismiss the amended complaint was filed on the
basis that the amended complaint constituted an untimely
petition for postconviction relief. The trial court granted
the motions and dismissed both pleadings, finding that the
complaint was barred by absolute prosecutorial immunity,
sovereign immunity, and the statute of limitations, and
further concluded that the action was governed by Rule 37.1
of the Arkansas Rules of Criminal Procedure. Gonder did not
incorporate the original complaint into the amended complaint
by reference; therefore, the original complaint is
superseded, and we are limited in our analysis to the amended
complaint. James v. Williams, 372 Ark. 82, 87, 270
S.W.3d 855, 860 (2008).
amended complaint sought injunctive relief in the form of
modifying or setting aside Gonder's sentence. Even though
Gonder's amended complaint sought injunctive relief, it
represented a collateral attack on the judgment of
conviction, and such actions are governed solely by Rule 37.1
of the Arkansas Rules of Criminal Procedure. Rule 37.1 states
in pertinent part that " a petitioner who is in custody
under sentence of a circuit court claiming a right . . . to
have his sentence modified" or claims that his sentence
is otherwise subject to " collateral attack" may
file a Rule 37.1 petition " praying that the sentence be
vacated or modified." Ark. R. Crim. P. 37.1(a)(i), (iv)
(2011). Thus, Rule 37.1 encompasses and therefore governs an
action that collaterally attacks a sentence. Moreover, Rule
37.2 mandates that " all grounds for postconviction
relief from a sentence imposed by a circuit court must be
raised in a petition under this rule." Ark. R. Crim. P.
37.2(b) (2011). Likewise, this court has made clear that
regardless of its label, a pleading that mounts a collateral
attack on a judgment is governed by the provisions of our
postconviction rule. See Bailey v. State,
312 Ark. 180, 182, 848 S.W.2d 391, 392 (1993) (per curiam)
(motion for declaratory relief constituted a collateral
attack on a judgment and sentence and was therefore governed
by Rule 37); see also Holliday v. State,
2013 Ark. 47, at 2 (per curiam) (collecting cases).
Gonder's original Rule 37.1 petition was denied with
prejudice by the trial court and dismissed by this court on
appeal. Gonder, 2011 Ark. 248, 382 S.W.3d 674. In
this instance, Gonder again collaterally attacks his sentence
as his request for injunctive relief seeks to modify or set
it aside. Thus, regardless of its label, this complaint was
also a postconviction petition. Postconviction pleadings that
raise grounds for relief cognizable under Rule 37.1 are
considered petitions to proceed under Rule 37.1 and are
subject to its procedural requirements. Walker v.
State, 283 Ark. 339, 340, 676 S.W.2d 460, 461 (1984)
(per curiam). Gonder's civil complaint for injunctive
relief is, therefore, subject to the timeliness requirements
for filing requests for postconviction relief. See
Ark. R. Crim. P. 37.2(c) (if a conviction is obtained by a
guilty plea, a petition claiming relief under this Rule must
be filed 90 days of the date of entry of the judgment). Given
that Gonder's amended complaint raises grounds cognizable
under Rule 37.1 and is subject to its procedural
requirements, it is untimely as it was filed well beyond the
90-day time limit prescribed by Rule 37.2(c).
this court has consistently upheld the rule that a petitioner
is limited to one petition for postconviction relief unless
the first petition was specifically denied without prejudice
to allow the filing of a second petition. Kemp v.
State, 2009 Ark. 631, at 4 (citing McCuen v.
State, 328 Ark. 46, 941 S.W.2d 397 (1997)); see
also Ark. R. Crim. P. 37.2(b) (stating in pertinent part
that all grounds for relief must be raised in the original
petition, unless the petition was denied without prejudice).
Furthermore, Gonder's allegations that the prosecutor
misstated the facts surrounding his plea and conviction for
attempt to furnish a prohibited article is an issue that
could have been raised at the time of the plea, and is,
therefore, not a claim that may be raised for the first time
in a Rule 37 petition. See Howard v. State,
367 Ark. 18, 27, 238 S.W.3d 24, 33 (2006) (rejecting a
postconviction allegation that the prosecutor had knowingly
introduced false testimony during the trial, because the
petitioner could have raised the issue at trial or on direct
appeal and was precluded from raising the issue for the first
time in a Rule 37.1 petition).
reasons set forth above, the circuit court correctly
dismissed Gonder's amended complaint because it was
governed by the requirements of Rule 37, and as such
represented an untimely, successive petition for
postconviction relief that raised claims that are