APPEAL FROM THE ASHLEY COUNTY CIRCUIT COURT [NO. 02CR-07-177]
HONORABLE SAM POPE, JUDGE.
Kenneth R. Osburn, pro se appellant.
Rutledge, Att'y Gen., by: Christian Harris, Ass't
Att'y Gen., for appellee.
A. WOMACK, ASSOCIATE JUSTICE.
Kenneth Ray Osburn appeals the denial and dismissal of his
petition for writ of error coram nobis. Because the trial
court did not abuse its discretion in denying relief, we
was initially convicted in the Ashley County Circuit Court of
capital murder and kidnapping for the disappearance and death
of a seventeen-year-old girl, but on appeal, this court
reversed and remanded for a new trial because of evidentiary
errors. Osburn v. State, 2009 Ark. 390, 326 S.W.3d
771. We held that custodial statements Osburn made should not
have been admitted, but the trial court had not erred in
admitting the testimony of Connie Sparks, who testified about
a similar incident that occurred twenty-seven years earlier.
the remand, Osburn entered a negotiated guilty plea to
kidnapping and second-degree murder for an aggregate sentence
of 480 months' imprisonment. Osburn sought postconviction
relief under Arkansas Rule of Criminal Procedure 37.1 (2017)
challenging the judgment on the plea, and the Arkansas Court
of Appeals affirmed the denial of his petition. Osburn v.
State, 2018 Ark.App. 97, 538 S.W.3d 258. Osburn then
filed in the trial court the petition seeking the writ of
error coram nobis that is the subject of this
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.
Griffin v. State, 2018 Ark. 10, 535 S.W.3d 261. An
abuse of discretion occurs when the trial court acts
arbitrarily or groundlessly. Id. 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 those findings are
clearly erroneous or clearly against the preponderance of the
evidence. Ramirez v. State, 2018 Ark. 32, 536 S.W.3d
614. There is no abuse of discretion in the denial of coram
nobis relief when the claims in the petition were groundless.
Griffin, 2018 Ark. 10, 535 S.W.3d 261.
of error coram nobis is an extraordinarily rare remedy, and
proceedings for the writ are attended by a strong presumption
that the judgment of conviction is valid. Jackson v.
State, 2018 Ark. 227, 549 S.W.3d 356. 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.
writ is allowed under compelling circumstances to achieve
justice and to address errors of the most fundamental nature.
Rayford v. State, 2018 Ark. 183, 546 S.W.3d 475. 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. Id.
appeal, Osburn raises two points for reversal. In the first,
he alleges error in the trial court's failure to issue
the writ because he asserted that a violation of Brady v.
Maryland, 373 U.S. 83 (1963), resulted from the
prosecutor's withholding the case file for case No.
21CR-82-27, a criminal proceeding against Osburn in Desha
County he alleged arose from the previous incident with
Sparks. Osburn contends that the proceedings were dismissed
for a speedy-trial violation and that the case file
containing that information could have been used to challenge
Sparks's testimony. Osburn additionally raises some
issues in this point alleging that the testimony in his first
trial included perjury, and his argument about suppressed
evidence is intertwined with allegations that his trial
counsel was ineffective. In his second point, Osburn alleges
error because the trial court found that ineffective
assistance was not within the purview of coram nobis
of material exculpatory evidence by a prosecutor falls within
one of the four previously recognized categories of coram
nobis relief. Thacker v. State, 2016 Ark. 350, 500
S.W.3d 736. The mere fact that a petitioner alleges a
Brady violation, however, is not sufficient to
provide a basis for error coram nobis relief. Wallace v.
State, 2018 Ark. 164, 545 S.W.3d 767. To establish a
Brady violation, three elements are required: (1)
the evidence at issue must be favorable to the accused,
either because it is exculpatory or because it is impeaching;
(2) that evidence must have been suppressed by the State,
either willfully or inadvertently; (3) prejudice must have
ensued. Id. To warrant coram nobis relief, the
petitioner has the burden of demonstrating a fundamental
error extrinsic to the record that would have prevented
rendition of the judgment had it been known and, through no
fault of his own, was not brought forward before rendition of
judgment. Id. This means that the petitioner
alleging a Brady violation must demonstrate that the
evidence that was allegedly suppressed was sufficient to
alter the outcome of the trial. Id.
extent that Osburn contests testimony that was given at his
first trial, the State correctly asserts that those issues
were made moot by this court's reversal on direct appeal
invalidating the first judgment. See Green v. State,
2012 Ark. 347, 423 S.W.3d 62 (holding that, because the
parties were returned to the same situation as before the
trial, no theory of the State's case existed after the
judgment was reversed). There was no witness testimony to
contest at the trial that is at issue here, because the trial
was Osburn's entry of a plea. Collier v. Kelley,
2018 Ark. 170.
extent that Osburn alleged that suppression by the
prosecution of the "case file" in case No.
21CR-82-27 had caused him to enter an involuntary plea at his
second trial, his argument also fails. The information that
Osburn contends was suppressed was public information that
was readily available. The dismissal of case No. 21CR-82-27
would be shown on the court's docket as a public record.
Because the information was public, it was not subject to
being withheld or suppressed. Wallace, 2018 Ark.
164, 545 S.W.3d 767. In addition, the outcome of case No.