Gordon v. State

          Rehearing Denied January 9, 2020

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[Copyrighted Material Omitted]

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          PRO SE APPEAL FROM THE HOT SPRING COUNTY CIRCUIT COURT; PRO SE MOTIONS TO MODIFY AND SEAL RECORD AND TO FILE BELATED BRIEF [NO. 30CR-10-261], HONORABLE CHRIS E WILLIAMS, JUDGE

          Paul M. Gordon, pro se appellant.

         Leslie Rutledge, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.

          OPINION

         COURTNEY RAE HUDSON, Associate Justice

          Appellant Paul M. Gordon appeals the denial of his pro se petition for writ of error coram nobis filed in the trial court. After the appeal was briefed, Gordon filed a motion in which he sought to modify the record by removing portions that he alleges the trial court incorrectly considered and to seal the record because it includes documents that fully name the victims without redaction. Gordon additionally filed a motion in which he sought permission to file a belated reply brief. We deny his motion to modify and seal the record. Gordon fails to provide an adequate basis to remove any of the documents from the record or to seal it.^[1] Because Gordon does

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not demonstrate that the trial court abused its discretion in declining to issue the writ, we affirm, and Gordon’s request to file a belated reply brief is moot.

          A writ of error coram nobis is an extraordinarily rare remedy. Wooten v. State, 2018 Ark. 198, 547 S.W.3d 683. Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Id. 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 circuit court and that, through no negligence or fault of the defendant, was not brought forward before rendition of the judgment. Id. The writ is issued only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Wade v. State, 2019 Ark. 196, 575 S.W.3d 552. It is available to address errors 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 petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Wooten, 2018 Ark. 198, 547 S.W.3d 683. The petitioner must state a factual basis to support his or her allegations of error— and not simply rely on conclusory allegations— in order to state a cause of action that would support issuance of the writ. See Alexander v. State, 2019 Ark. 171');">2019 Ark. 171, 575 S.W.3d 401.

          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. Bryant v. State, 2019 Ark. 183, 575 S.W.3d 547. 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. A hearing is not required if the petition clearly has no merit, either because it fails to state a cause of action to support issuance of the writ or because it is clear from the petition that the petitioner did not act with due diligence. Ramirez v. State, 2018 Ark. 32, 536 S.W.3d 614.

         In 2011, Gordon entered a negotiated plea of guilty to three counts of rape, and he received consecutive sentences of 420 months’ imprisonment on each count for an aggregate sentence of 1260 months’ imprisonment. After entering the plea, Gordon filed a petition under Arkansas Rule of Criminal Procedure 37.1 (2018) that the trial court found was untimely filed. This court granted a motion to dismiss the appeal of that order by per curiam order on January 24, 2013. In his 2017 coram nobis petition,^[2] Gordon alleged that he was mentally ill when he entered his plea and that the plea was coerced because he was suffering from depression. He alleged that pursuit of the writ had been delayed by his mental illness and that once he regained competence, he filed the petition. ...