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Tolston v. State

Supreme Court of Arkansas

January 16, 2020

ROY TOLSTON PETITIONER
v.
STATE OF ARKANSAS RESPONDENT

          PRO SE PETITIONTO REINVEST JURISDICTION IN THE TRIAL COURT TO CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS AND WRIT OF AUDITA QUERELA [PULASKI COUNTY CIRCUIT COURT, SEVENTH DIVISION, NO. 60CR-01-1063]

          Roy L. Tolston, pro se petitioner.

          Leslie Rutledge, Att'y Gen., by: Chris R. Warthen, Ass't Att'y Gen., for respondent.

          KAREN R. BAKER, ASSOCIATE JUSTICE

         Petitioner Roy Tolston brings this petition to reinvest jurisdiction in the trial court to file a petition for writ of error coram nobis and audita querela[1] in his criminal case. In the petition, Tolston contends that the trial court erroneously failed to apply the criminal code section that was in effect at the time the crime was committed and that the prosecutor violated Brady v. Maryland, 373 U.S. 83 (1963), by withholding a medical report pertaining to an examination of the victim. Because we find that Tolston's claims do not establish a ground for the writ, the petition is denied.

         I. Nature of the Writ

         The petition for leave to proceed in the trial court is necessary because the trial court can entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal only after we grant permission. Newman v. State, 2009 Ark. 539, 354 S.W.3d 61. A writ of error coram nobis is an extraordinarily rare remedy. 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 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. Newman, 2009 Ark. 539, 354 S.W.3d 61. 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.

         II. Grounds for the Writ

         The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Pitts v. State, 336 Ark. 580, 986 S.W.2d 407 (1999). 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. Howard v. State, 2012 Ark. 177, 403 S.W.3d 38. The burden is on the petitioner in the application for coram nobis relief to make a full disclosure of specific facts relied upon and not to merely state conclusions as to the nature of such facts. McCullough v. State, 2017 Ark. 292, 528 S.W.3d 833.

         III. Background

         Tolston was convicted of rape in a bench trial and sentenced as a habitual offender to 480 months' imprisonment. The Arkansas Court of Appeals affirmed. Tolston v. State, CACR 02-447 (Ark. App. Feb. 5, 2003) (unpublished). In its opinion, the court of appeals set out the trial testimony of the victim, J.S., who testified that she lived in an apartment with another female, and that on the evening of January 14, 2001, her roommate's boyfriend and Tolston visited the apartment. Id. J.S. testified that soon after the two men arrived, she went to her bedroom to go to sleep, where she was awakened by Tolston, who had climbed in bed with her and began rubbing her back. Id. J.S. stated that after an initial confrontation with Tolston, she eventually returned to her bedroom and fell asleep. Id. J.S. testified that she woke up later to find that Tolston was naked and lying next to her. Id. According to J.S.'s testimony, her nightgown was pulled up to her chest, Tolston's hand was in her panties, and his fingers were inside her vagina. J.S. testified that she jumped up and told Tolston to leave. Id. She stated that she left the apartment shortly after the incident and reported what happened to the police. Id. Based on J.S.'s testimony, the court of appeals found that there was substantial evidence supporting the conviction. Id.

         Tolston subsequently filed a timely petition for postconviction relief pursuant to Rule 37.1 of the Arkansas Rules of Criminal Procedure (2003), which was denied following a hearing. We affirmed the denial of Tolston's Rule 37.1 petition. Tolston v. State, CR 04-480 (Ark. June 16, 2005) (unpublished per curiam).

         IV. Grounds for Relief

         In his first claim for coram nobis relief, Tolston contends that the trial court erred by applying a definition of "physically helpless" that was not in effect when the offense was committed. Specifically, Tolston contends that the acts for which he was tried and convicted did not constitute rape under the law in effect in January 2001. The felony information that Tolston attached to his petition alleged that Tolston violated Arkansas Code Annotated section 5-14-103 (Repl. 1997) by unlawfully engaging in deviate sexual activity with J.S., who was incapable of consent because she was physically helpless. The definition of "physically helpless" in effect at the time of Tolston's offense is found in Arkansas Code Annotated section 5-14-101(5) (Repl. 1997), which states that a person is physically helpless when that person is unconscious or physically unable to communicate lack of consent. This definition was amended by the General Assembly in April 2001, to add that a person is also physically helpless when they are "rendered ...


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