APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SEVENTH
DIVISION [NO. 60CR-07-4847] HONORABLE BARRY SIMS, JUDGE.
Malone, pro se appellant.
Rutledge, Att'y Gen., by: Rebecca Kane, Ass't
Att'y Gen., for appellee.
A. WOMACK, ASSOCIATE JUSTICE.
Ralph Malone appeals from the trial court's denial of his
pro se petition for a writ of error coram nobis. Because the
trial court did not abuse its discretion in denying coram
nobis relief, we affirm.
2009, Malone pleaded guilty to one count of rape and was
sentenced to 180 months' imprisonment. In his petition,
Malone alleged that his guilty plea was the result of fraud
and coercion, in that the terms of the plea agreement were
changed after Malone had signed it. Specifically, Malone
contended below and argues on appeal that the plea agreement
that he attached to his petition shows that the charge to
which he was pleading guilty had been changed from
first-degree sexual assault to rape. Malone further asserted
that his trial counsel coerced him into "answering
loudly and affirmatively" during the plea hearing.
Malone insists he did not understand that the charge had been
trial court denied the petition as failing to state a
cognizable claim for the issuance of the writ of coram nobis
and noted that a review of the plea-hearing transcript
demonstrated that the prosecutor amended the charge to rape
in open court and provided the range of punishment for the
offense. The court further noted that Malone
unequivocally pleaded guilty to the charge of rape and did so
knowingly and intelligently.
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.
Osburn v. State, 2018 Ark. 341, 560 S.W.3d 774. 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
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.
Id. The petitioner has the burden of demonstrating a
fundamental error of fact extrinsic to the record.
Id. It is the petitioner's burden to show that a
writ of error coram nobis is warranted. This burden is a
heavy one because a writ of error coram nobis is allowed only
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.
is not required to accept the allegations in a petition for
writ of error coram nobis at face value. Wooten v.
State, 2018 Ark. 198, 547 S.W.3d 683. In determining
whether a request for coram nobis relief is meritorious, we
look to the reasonableness of the allegations of the petition
and to the existence of the probability of the truth thereof.
Howard v. State, 2012 Ark. 177, 403 S.W.3d 38. Here,
the plea agreement, which reveals that the charge of
first-degree sexual assault was amended, also reveals that
the changes reflected on the plea agreement were initialed by
trial counsel and by Malone.
it is unlikely that Malone was unaware of the charge to which
he was pleading guilty during the plea hearing. In fact, the
trial court noted that the charge of first-degree sexual
assault was amended on the record at the beginning of the
hearing. Therefore, despite Malone's allegations to the
contrary, the trial court found that the plea hearing
demonstrates that Malone was properly informed of the charges
to which he was pleading guilty. In sum, Malone fails to
demonstrate that the amendment to the charge from
first-degree sexual assault to rape was extrinsic to the
record and was unknown to Malone at the time of his
plea and conviction. Jackson, 2018 Ark. 227, 549
further contends that his affirmative responses given during
the plea hearing were the result of coercion by trial
counsel. However, to prove coercion, the petitioner bears the
burden of establishing that he pleaded guilty as a result of
fear occasioned by physical or psychological duress or
threats of mob violence. Gray v. State, 2018 Ark.
79, 540 S.W.3d 658. Malone presents no evidence that his
guilty plea was coerced. Instead, Malone's allegations
represent a claim that his guilty plea was not entered
intelligently and voluntarily--a claim that should have been
brought pursuant to Rule 37.1 of the Arkansas Rules of
Criminal Procedure (2018). Hall v. State, 2018 Ark.
319, 558 S.W.3d 867. The trial court did not abuse its
discretion in denying Malone's petition for a writ of
error coram nobis.
we have consistently held that due diligence is required in
making an application for coram nobis relief, and in the
absence of a valid excuse for delay, the petition can be
denied on that basis alone. Makkali v. State, 2019
Ark. 17, 565 S.W.3d 472. This court will itself examine the
diligence requirement and deny a petition when it is evident
that a petitioner failed to proceed diligently. Id.
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) upon discovering the fact, the defendant did
not delay bringing the petition. Id. The record
demonstrates that Malone signed the plea agreement and