PRO SE
MOTIONS FOR BELATED APPEAL, FOR APPOINTMENT OF COUNSEL, TO
SUPPLEMENT APPEAL, TO FILE RULE ON CLERK, TO ADD, SECOND
MOTION TO SUPPLEMENT, AND SECOND MOTION TO ADD [PULASKI
COUNTY CIRCUIT COURT, FIFTH DIVISION, NO. 60CR-00-365]
HONORABLE WENDELL GRIFFEN, JUDGE.
KAREN
R. BAKER, ASSOCIATE JUSTICE.
Petitioner
Tracy Lee Bryant asks for permission to proceed with a
belated appeal of an order denying his pro se petition for
writ of error coram nobis. He has also filed a pro se motion
requesting that counsel be appointed for the proceedings, a
motion seeking to supplement his appeal, a motion to file
rule on clerk in which he seeks permission to file pleadings
in the matter without a notarized signature, a motion in
which he seeks to add "to [his] error coram nobis,"
a second motion to supplement, and a second motion to add. In
his coram nobis petition, Bryant challenged the judgment and
commitment order that was entered subsequent to his guilty
plea on the charges of aggravated robbery, theft of property,
and two counts of theft by receiving.[1] The partial record filed
with the motion for belated appeal contains no notice of
appeal. Bryant alleges difficulties concerning injuries that
he received and gaining access to books as his bases for
excusing the procedural default. However, because his coram
nobis petition stated no basis for the writ to issue, we deny
the motion for belated appeal. The motions for appointment of
counsel, to supplement the appeal, to file rule on clerk,
"to add to [Bryant's] coram nobis," second
motion to supplement, and second motion to add are therefore
moot.
Under
Arkansas Rule of Appellate Procedure-Criminal 2(e), this
court may act on and decide a case in which the notice of
appeal was not filed in the time prescribed when a good
reason for the omission is shown. Yet this court need not
consider the reasons for the petitioner's failure to file
a timely notice of appeal when it is clear from the record
that the postconviction petition denied was wholly without
merit. Latham v. State, 2018 Ark. 44. An appeal from
an order that denied a petition for a postconviction remedy,
including the denial of a petition for writ of error coram
nobis, will not be permitted to go forward when it is clear
that the petitioner could not prevail. Whitney v.
State, 2018 Ark. 138.
A writ
of error coram nobis is an extraordinarily rare remedy, more
known for its denial than its approval. 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. Green v. State,
2016 Ark. 386, 502 S.W.3d 524. The function of the writ is to
secure relief from a judgment rendered while there existed
some fact that would have prevented its rendition had it 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. Id. 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. The writ is allowed only under compelling
circumstances to achieve justice and to address errors of the
most fundamental nature. Howard v. State, 2012 Ark.
177, 403 S.W.3d 38. 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.
The
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 court acts arbitrarily or
groundlessly. Id. There is no abuse of discretion in
the denial of error coram nobis relief when the claims in the
petition were groundless. Id.
Bryant
asserted three claims in his petition: (1) that his
allegations of mental disease or defect were not fully
adjudicated; (2) that his guilty plea was coerced; and (3)
that his trial counsel was ineffective. This court has
repeatedly held that an ineffective-assistance-of-counsel
claim is not a ground for the writ. Mosley v. State,
2018 Ark. 152, 544 S.W.3d 55. The other two claims were
framed to fall within two of the recognized categories of
error that will support the writ but failed to allege any
facts to support those claims.
Bryant's
competency claim in the petition is not clear. He contends
that there was trial error in accepting his plea without
having the mental evaluation mandated when his attorney
raised the potential for a defense based on mental disease or
defect. He alleged that he was prejudiced at the sentencing
hearing because he did not have such an evaluation. Yet, as
he acknowledges, Bryant's decision to enter a plea of
guilt effectively waived any such defense.
To the
extent that Bryant alleged he was incompetent to enter his
plea, he did not plead any facts in the petition to support
that claim and certainly pointed to none outside the record.
Bryant noted considerable discussion at his sentencing about
his failure to take medications prescribed for bipolar
disorder after his release from prison. It is recognized that
not every manifestation of mental illness demonstrates
incompetence to stand trial. Newman v. State, 2014
Ark. 7 (citing United States v. Turner, 644 F.3d 713
(8th Cir. 2011)). The mere fact that Bryant suffered from,
and was treated for, a mental illness does not establish his
incompetence, and his diagnosis was clearly known at the time
of his guilty plea. A defendant in a criminal case is
ordinarily presumed to be mentally competent to stand trial,
and the burden of proving incompetence is on the defendant.
Deason v. State, 263 Ark. 56, 562 S.W.2d 79 (1978).
When a petitioner seeking the writ makes no assertion that
there was any evidence concerning his incompetence extrinsic
to the record, hidden from the defense, or unknown at the
time of trial, grounds based on the petitioner's
incompetence fail. Martinez-Marmol v. State, 2018
Ark. 145, 544 S.W.3d 49. In sum, Bryant has not shown that
there existed some fact-incompetence at the time of his
guilty plea-that would have prevented rendition of the
judgment had it been known to the circuit court and that,
through no negligence or fault of the defendant, was not
brought forward before rendition of judgment.
Bryant's
final claim of a coerced guilty plea was intertwined with his
earlier allegations of incompetency. However, Bryant failed
to offer additional facts to support those allegations.
Instead, Bryant raised additional issues concerning whether
his plea was voluntary, the court's failure to follow
proper plea procedure, and ineffective assistance of counsel.
To
prevail on a claim that a writ of error coram nobis is
warranted because a plea was coerced, the petitioner bears
the burden of establishing that the plea was the result of
fear, duress, or threats of mob violence as previously
recognized by this court as grounds for a finding of
coercion. Griffin, 2018 Ark. 10, 535 S.W.3d 261.
Bryant alleged no facts to support such a conclusion. Those
allegations in a coram nobis petition that appeared to attack
a plea of guilty on the basis that it was not entered
intelligently and voluntarily fail, because any such claim
should have been brought under Arkansas Rule of Criminal
Procedure 37.1 and not in a petition for writ of error coram
nobis. Smith v. State, 2017 Ark. 236, 523 S.W.3d
354. Issues concerning the trial court's failure to
comply with mandatory procedural rules are likewise addressed
under Rule 37. Deason, 263 Ark. 56, 562 S.W.2d 79.
Because
the only cognizable claims raised in the petition did not
state adequate facts to support those claims, the coram nobis
petition denied was wholly without merit. It is therefore
clear that Bryant can show no abuse of discretion in the
denial of relief, and he could not prevail on appeal.
Motion
for belated appeal denied; motions for appointment of
counsel, to supplement appeal, to file rule on clerk, to add,
second ...