RICHARD W. GREEN APPELLANT
STATE OF ARKANSAS APPELLEE
MOTION FOR USE OF COPY OF RECORD AND TRANSCRIPT AND FOR
EXTENSION OF TIME TO FILE BRIEF [HOT SPRING COUNTY CIRCUIT
COURT, NO. 30CR-79-2]
DISMISSED; MOTION MOOT.
Richard W. Green, pro se appellant.
Rutledge, Att'y Gen., by: David R. Raupp, Ass't
Att'y Gen., for appellee.
R. BAKER, Associate Justice.
April 4, 1979, Richard W. Green pleaded guilty to murder in
the first degree and was sentenced to imprisonment for the
rest of his "natural life." Green thereafter sought
postconviction relief pursuant to Arkansas Rule of Criminal
Procedure 37.1 (1979), claiming his plea of guilty in 1979
was not voluntary because he thought he would serve a
seven-year sentence. This court affirmed the denial of
relief, finding that Green knew he could be sentenced to life
imprisonment at the time of his plea and that, other than the
agreement to reduce the charge against him from capital to
first-degree murder, no promises had been made to him in
exchange for his plea. Green v. State, 297 Ark. 49,
50-51, 759 S.W.2d 211, 211-12 (1988). On June 19, 2014, Green
filed in the trial court a petition for writ of error coram
nobis or motion to correct clerical error or mistake in
judgment-and-commitment order. The trial court denied relief,
and Green has lodged an appeal in this court from that
denial. Now before this court is Green's pro se motion
for use of record and transcript and for extension of brief
is clear from the record that the appellant cannot prevail if
an appeal of an order that denied postconviction relief were
permitted to go forward, we dismiss the appeal. Wheeler
v. State, 2015 Ark. 233, 463 S.W.3d 678 (per curiam);
see also Justus v. State, 2012 Ark. 91. As it is
clear from the record that Green could not prevail on appeal,
the appeal is dismissed. The dismissal of the appeal renders
the motion moot.
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.
raised the following claims below in his petition for writ of
error coram nobis: that the trial court made false statements
regarding his sentence during the plea hearing which made his
sentence illegal; that trial counsel was ineffective for
allowing the trial court to falsely apprise him in this
manner; that the penitentiary commitment order was invalid
for lack of the judge's signature and the clerk's
seal; that the commitment order did not state certain
language Green deemed pertinent; that the court's failure
to state a minimum sentencing range during his plea hearing
entitled him to issuance of the writ; that his plea was
either coerced because he was not paroled after seven
years' imprisonment or trial counsel was ineffective for
their failure to ensure he was paroled after serving seven
year's imprisonment on his life sentence; and that he
found out in 2011 that fingerprints on the murder weapon
belonged to Glen Briner. In his petition, Green stated that
he did not bring his claims earlier because he has "had
at least 20 major surgeries since 2009" and that he was
"unaware of the illegal judgment order until
1996[.]" Citing Newman, 2009 Ark. 539, 354
S.W.3d 61, he claimed "this [wa]s the first opportunity
he has had to present his case."
there is no specific time limit for seeking a writ of error
coram nobis, due diligence is required in making an
application for relief. Philyaw v. State, 2014 Ark.
130, at 6 (per curiam). Due diligence requires that (1) the
defendant be unaware of the fact at the time of trial; (2)
the defendant could not have, in the exercise of due
diligence, presented the fact at trial; and (3) the defendant
after discovering the fact, did not delaying in bringing the
petition. Id. at 6-7 (citing McClure v.
State, 2013 Ark. 306 (per curiam)). The requirements are
a sequence of events, each of which a petitioner much show to
prove due diligence. Id.
been over thirty years since Green's guilty plea. Even if
Green were unaware of any alleged illegality until 1996, that
is a period of over twenty years after his conviction, and,
even presuming any merit to his assertion that he could not
raise the claims until after 2009, it purportedly took Green
over five years to raise his claims. However, Green's own
claims are belied by the fact that in 1995 Green filed a
petition for writ of habeas corpus seeking to have his
judgment vacated on the ground that the statute governing the
possible sentences for murder in the first degree provided
for "life imprisonment" but not imprisonment for
the rest of one's "natural life"-a claim he
argued he was unaware of until 1996. Moreover, the majority of
his claims regarding any alleged illegality with his guilty
plea, plea hearing, or commitment order could have been
raised long before now. Green has not established that he
exercised due diligence in bringing forth his claims, and his
petition would be subject to denial on that basis alone.
Philyaw, 2014 Ark. 130, at 7.
assuming Green had been diligent in bringing his claims,
while Green attempted to couch many of his claims in terms of
a coerced guilty plea, which would provide a basis for relief
in a coram-nobis proceeding, the actual bases for these
claims are ineffective assistance of counsel and trial error.
See Biggs v. State, 2016 Ark. 125, at 3, 487 S.W.3d
363, at 365-66 (per curiam); see also Wilburn v.
State, 2014 Ark. 394, 441 S.W.3d 29 (per curiam)
(Appellant did not contend the plea was given as the result
of fear, duress, or threats of mob violence, but rather, the
crux of his claim was that it was involuntarily given due to
ineffective assistance of counsel and failure of the trial
court to properly advise him of the charges and his rights.).
This court has repeatedly held that
ineffective-assistance-of-counsel and trial-error claims are
not cognizable in error-coram-nobis proceedings. White v.
State, 2015 Ark. 151, at 4, 460 S.W.3d 285, 288.
Error-coram-nobis proceedings are not a substitute for
proceedings under Rule 37.1 to challenge the validity of a
guilty plea-which encompasses most of Green's allegations
in his petition for writ of error coram nobis-nor are the two
proceedings interchangeable. Wilburn, 2014 Ark. 394,
at 4, 441 S.W.3d at 32. Green had already sought and appealed
the denial of Rule 37.1 relief, see Green, 297 Ark.
49, 459 S.W.2d 11, and any attempt to file a subsequent
petition would have been dismissed in accordance with Rule
37.2(b), which precludes the filing of a subsequent petition.
See Williams v. State, 273 Ark. 315, 316, 619 S.W.2d
628, 629 (1981) (per curiam) (Where allegations of the
original petition were conclusory, subsequent Rule 37
petitions were allowed and decided on their merits; however,
the practice resulted in inconsistency in the treatment of
subsequent petitions, so the court no longer considered
subsequent petitions unless the original was dismissed
specifically without prejudice.).
claimed that the term for the "rest of his natural
life" was a sentence outside the sentencing range
granted by the statute for his offense, which was
life. There is a provision in Arkansas Code
Annotated section 16-90-111 (Repl. 2006) that allows the
trial court to correct an illegal sentence at any time
because a claim that a sentence is illegal presents an issue
of subject-matter jurisdiction. Burgie v. State,
2016 Ark. 144, at 1-2 (per curiam), reh'g denied
(May 5, 2016). While the time limitations on filing a
petition under section 16-90-111(b)(1) on the grounds that
the sentence was imposed in an illegal manner were superseded
by Arkansas Rules of Criminal Procedure 37.2(c), the portion
of section 16-90-111 that provides a means to challenge a
sentence at any time on the ground that the sentence is
illegal on its face remains in effect. Halfacre v.
State, 2015 ...