PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT TO
CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS; PRO SE
MOTION FOR APPOINTMENT OF COUNSEL [PULASKI COUNTY CIRCUIT
COURT, NO. 60CR-08-983 ]
Dennis Hutchinson, was convicted by a jury of second-degree
murder and was sentenced under a firearm-enhancement
provision to an aggregate term of 540 months'
imprisonment. His conviction and sentence were affirmed by
the Arkansas Court of Appeals. Hutchinson v. State,
2010 Ark.App. 235.
before this court are Hutchinson's pro se application to
reinvest jurisdiction in the trial court to consider a
petition for writ of error coram nobis and a motion for
appointment of counsel. For the reasons set forth below, we
deny the petition, and the motion for appointment of counsel
is therefore moot.
first note that a petition filed in this court for leave to
proceed in the trial court where the judgment was entered is
necessary because the trial court can entertain a petition
for writ of error coram nobis after a judgment has been
affirmed on appeal only after we grant permission.
Roberts v. State, 2013 Ark. 56, at 11, 425 S.W.3d
function of the writ of error coram nobis is to secure relief
from a judgment rendered while there existed some fact that
would have prevented the rendition of the judgment had it
been known to the trial court and which, through no fault of
the defendant, was not brought forward before rendition of
the judgment. Newman v. State, 2009 Ark. 56, at 5,
354 S.W.3d 61, 65. A writ of error coram nobis is an
extraordinarily rare remedy more known for its denial than
its approval. Howard v. State, 2012 Ark. 177, at 4,
403 S.W.3d 38, 42-43. Coram nobis proceedings are attended by
a strong presumption that the judgment of conviction is
valid. Id. The petitioner has the burden of
demonstrating a fundamental error of fact extrinsic to the
record. Id. We have held that 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.
addressing the merits of Hutchinson's claim for relief,
it is necessary to review the evidence presented at trial in
support of his conviction for the murder of Richard Ivey, who
was the husband of Hutchinson's codefendant, Brenda Ivey.
A review of the trial transcript reveals that at the time of
the murder, Brenda had been living with Hutchinson for
several months. Brenda testified at trial that Hutchinson had
encouraged her to lure Richard to Hutchinson's home,
claim that Richard had broken into the home with the intent
to harm her, and assert that she had acted in self-defense
when Richard was killed. Evidence introduced at trial
demonstrated that Brenda and Richard had exchanged several
text messages prior to the murder, wherein Brenda informed
Richard that she intended to reconcile with him and, to that
end, had asked Richard to come to Hutchinson's home to
help move her belongings. According to Brenda, when Richard
walked into the house, she shot and wounded him, and
Hutchinson prevented Richard from escaping and delivered the
fatal gunshot. Brenda's testimony was corroborated by
Richard's two co-workers, Saul DeLeon and Johnathon
Mahoney, who, at Richard's request, had followed him in a
separate vehicle to Hutchinson's home to help with the
move. DeLeon and Mahoney testified that they watched as
Richard readily entered the house, and, as they waited for
Richard to come back outside, they heard a popping noise and
then observed Hutchinson step out of the front door, pick up
a shovel and break a window. The crux of Hutchinson's
defense at trial and on appeal was that Hutchinson had acted
in self-defense. See Hutchinson, 2010 Ark.App. 235,
at 3 (rejecting Hutchinson's argument that the jury
should have been instructed on the existence of a presumption
that a person may use force to defend himself in his home
unless that presumption was overcome by clear and convincing
support of his claim for coram-nobis relief, Hutchinson now
contends that he was incompetent at the time of trial and
recounts a history of child abuse and posttraumatic stress
disorder (PTSD) stemming from his military service in the
Vietnam War. According to Hutchinson, physicians with the
Veterans Administration diagnosed him with PTSD, placed him
in a mental ward, and determined that he was totally disabled
as a result of the diagnosis. Hutchinson further contends
that preceding the murder, he began to experience flashbacks
and bouts of paranoia, which he attempted to alleviate with
the use of methamphetamine. Rather than alleviate his
symptoms, Hutchinson contends that his drug use exacerbated
his PTSD, making the flashbacks more frequent and prolonged.
Finally, Hutchinson states that in the months leading up to
his trial, he suffered from severe depression, difficulty
concentrating, suicidal ideation, and paranoia, and he was
placed in the medical ward of the county jail as a result of
his mental impairment.
claiming insanity as a ground for the writ, the burden is on
the petitioner who claims mental illness to overcome the
strong presumption that the judgment was valid. Noble v.
State, 2015 Ark. 215, at 3, 462 S.W.3d 341, 344 (per
curiam). Information that a petitioner either could have
known, or did know, at the time of trial does not provide
grounds for issuance of a writ of error coram nobis.
Rodgers v. State, 2013 Ark. 294, at 3 (per curiam).
trial record demonstrates that Hutchinson did not request a
mental evaluation or raise the issue of mental competence at
the time of his trial. The record further reveals that during
the sentencing phase, mitigation testimony was provided that
Hutchinson suffered from PTSD and had been found to be 100
percent disabled as a result of that diagnosis. Clearly,
Hutchinson and his trial counsel were aware of
Hutchinson's mental history at the time of trial;
therefore, Hutchinson does not present facts sufficient to
demonstrate that there was information not known at the time
of trial, or which could not have been known at the time of
trial, to establish that he was insane and incompetent to
proceed. Williams v. State, 2016 Ark. 92, at 3, 485
S.W.3d 254, 256.
we are not required to accept the allegations in a petition
for writ of error coram nobis at face value. Goff v.
State, 2012 Ark. 68, at 3, 398 S.W.3d 896, 898 (per
curiam). Hutchison's allegations are conclusory, and he
fails to set forth sufficient facts demonstrating that his
alleged mental impairment rendered him incompetent to stand
trial. A criminal defendant is presumed to be competent to
stand trial and has the burden of proving otherwise.
Thessing v. State, 365 Ark. 384, 390, 230 S.W.3d
526, 532 (2006). A circuit court is not required to hold a
hearing on a criminal defendant's competency sua sponte
unless there is reasonable doubt about the defendant's
competency. Whitham v. State, 2011 Ark. 28, at 3-4;
Davis v. State, 375 Ark. 368, 291 S.W.3d 164 (2009).
Conclusory statements fall far short of meeting a
petitioner's burden of showing that he was not competent
to stand trial. Webb v. State, 2009 Ark. 550, at 6
(per curiam). Hutchinson does not point to evidence presented
to the court that he was not fit to proceed. Id.
Hutchinson failed to sufficiently demonstrate that he acted
with diligence in pursuing his claim. Echols v.
State, 354 Ark. 414, 419, 125 S.W.3d 153, 157, (2003).
Although there is no specific time limit for seeking a writ
of error coram nobis, due diligence is required in making an
application for relief. Id. In the absence of a
valid excuse for delay, the petition will be denied.
Id. This court has held that due diligence requires
that (1) the defendant be unaware of the fact at the time of
trial; (2) he could not have, in the exercise of due
diligence, presented the fact at trial; or (3) upon
discovering the fact, did not delay bringing the petition.
Id. As stated, Hutchinson was aware of the facts he
now alleges as a basis for his claim of incompetence, he
failed to raise a competency issue at the time of trial, and
he waited six years after his conviction had been affirmed on
appeal to bring this petition. In view of the above,
Hutchinson's allegations of incompetence fail to