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Gonder v. Kelley

Supreme Court of Arkansas

August 3, 2017

DUANE GONDER APPELLANT
v.
WENDY KELLEY, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION APPELLEE

         PRO SE APPEAL FROM THE LINCOLN COUNTY CIRCUIT COURT AND MOTIONS FOR MANDATORY REVIEW OF JUDICIAL NOTICE OF ADJUDICATIVE FACTS PURSUANT TO RULE 201 OF THE ARKANSAS RULES OF EVIDENCE, FOR APPOINTMENT OF COUNSEL, AND TO STRIKE GRANT OF APPELLEE'S MOTION FOR EXTENSION OF BRIEF TIME [NO. 40CV-16-136] HONORABLE JODI RAINES DENNIS, JUDGE

          Duane Gonder, pro se appellant.

          Leslie Rutledge, Att'y Gen., by: Kathryn Henry, Ass't Att'y Gen., for appellee.

          SHAWN A. WOMACK, ASSOCIATE JUSTICE.

         Appellant Duane Gonder brings this appeal from the denial by the Lincoln County Circuit Court on March 10, 2017, of his pro se motion pursuant to Rule 60 of the Arkansas Rules of Civil Procedure (2016) and the denial of his pro se motion for judicial notice of adjudicative facts under Rule 201 of the Arkansas Rules of Evidence. Both motions sought reconsideration of Gonder's petition for writ of habeas corpus that had been dismissed by the circuit court on January 19, 2017.[1] Pending our review of his case, Gonder additionally filed a motion to have counsel appointed as well as another motion for judicial notice of adjudicative facts in this court. We affirm the circuit court order. Accordingly, Gonder's motions filed in this appeal are moot.

         The habeas petition and motions pertained to Gonder's guilty plea in 2010 to the offense of attempting to furnish prohibited articles into a correctional facility. Gonder argues on appeal that his habeas petition should have been granted because the judgment-and-commitment order states that he had been convicted of attempted furnishing of a prohibited article but the trial court pronounced at sentencing that he was guilty of furnishing a prohibited article rather than attempting to do so, that he was not guilty of the offense, and that he was denied a hearing on the habeas petition. He further argues, without reference to either Rule 60 or Rule 201, that the circuit court erred by not granting his habeas petition.

         A circuit court's decision in a habeas proceeding will be upheld unless it is clearly erroneous. See Hobbs v. Gordon, 2014 Ark. 225, at 5, 434 S.W.3d 364, 367. A decision is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been made. Id.

         1. Conflict between sentence pronounced and judgment entered

         The judgment that is entered governs the sentenced imposed on the defendant. See Bradford v. State, 351 Ark. 394, 94 S.W.3d 904 (2003). To the extent that Gonder argued in the Rule 60 motion, as he did in his habeas petition and does in this appeal, that the judgment in h is case was facially illegal because it did not reflect that he had entered a plea of guilty to attempted furnishing of a prohibited article, the copy of the judgment in the record reflects that Gonder was indeed convicted of the offense of attempting to furnish a prohibited article. Accordingly, there was no error in the judgment.

         2. Actual innocence as a ground for relief in habeas proceeding

         Gonder asserted in both the Rule 60 motion and the motion for judicial notice that the writ of habeas corpus should have been issued because he was innocent of the offense and the evidence against him was insufficient to sustain the judgment. In his motion asking the court to take judicial notice of adjudicative facts, he cited Laster v. State, 76 Ark.App. 324, 64 S.W.3d 800 (2002), as support for his allegation that he was not guilty of the offense of which he was convicted. In Laster, a prison inmate's conviction for introduction of a prohibited article into a place of incarceration was overturned on appeal because the prisoner had the prohibited article in his possession but there was insufficient proof to establish that he introduced the article into the institution.

         Gonder's reliance on Laster was a direct attack on the sufficiency of the evidence to sustain the judgment in his case. Proceedings for the writ are not intended to require an extensive review of the record of the trial proceedings, and the circuit court's inquiry into the validity of the judgment is limited to the face of the commitment order. Philyaw v. Kelley, 2015 Ark. 465, 477 S.W.3d 503. For that reason, arguments pertaining to whether the evidence was sufficient to sustain the judgment are not cognizable in a habeas proceeding.[2]

         3. Failure to hold hearing in habeas proceeding

         There is no requirement that a hearing be held on every habeas petition regardless of the content of the petition. George v. State,285 Ark. 84, 85, 685 S.W.2d 141, 142 (1985). Because Gonder has not established that his motions seeking reconsideration of his habeas petition had merit, he has not ...


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