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]
Tolston, pro se petitioner.
Rutledge, Att'y Gen., by: Chris R. Warthen, Ass't
Att'y Gen., for respondent.
R. BAKER, ASSOCIATE JUSTICE
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 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.
Nature of the Writ
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
Grounds for the Writ
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.
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.
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).
Grounds for Relief
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 ...