Michael D. Jackson and Scottie D. Henry v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 04-14

NOT DESIGNATED FOR PUBLICATION

MICHAEL D. JACKSON and SCOTTIE D. HENRY

APPELLANTS

v.

STATE OF ARKANSAS

APPELLEE

Opinion Delivered May 12, 2005

APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY, CR 02-4204, HON. WILLARD PROCTOR, JR., JUDGE

AFFIRMED

PER CURIAM

Michael D. Jackson and Scottie D. Henry each pled guilty to charges of possession of methamphetamine and possession of paraphernalia, and each was sentenced to forty-eight months' probation. Each was fined $500 and assessed court costs. In addition, Jackson pled guilty to battery in the third degree, and Henry pled guilty to resisting arrest; each was given twelve months' probation for the separate charge. The court also suspended each defendant's driver's license and ordered each of them to serve one day at the Arkansas Department of Correction.

On July 8, 2003, the defendants filed a motion to set aside the guilty pleas, indicating it was filed in accord with the time requirements of Ark. R. Crim. P. 37.2, and asserting ineffective assistance of counsel because the appellants were led to believe by their attorney that they were pleading to misdemeanor charges, not felonies. On August 26, 2003, Jackson and Henry amended their motion to allege that, to the extent Ark. R. Crim. P. 37.1 was not available to them because they were not incarcerated, the rules of criminal procedure violate the Equal Protection and Due Process Clauses and are unconstitutional. The trial court's order entered October 3, 2003, notes that the matter was set for hearing on July, 21, 2003, that the motion was denied after the petitioners, Jackson and Henry, failed to appear. However, the court again set the matter for hearing on September 15, 2003, following the filing of their amended motion. At the September 15, 2003, hearing, the court allowed argument by counsel concerning whether a defendant on probation could seek postconviction relief through an Ark. R. Crim. P. 37.1 petition. The court's order denied the petitioners' motion on the basis that neither petitioner was in custody, and further noted that Ark. R. Crim. P. 26.1 would not provide relief since the judgment had been entered. Jackson's and Henry's sole issue preserved in this appeal is whether Ark. R. Crim. P. 37.1 is unconstitutional.

Arkansas Rule of Criminal Procedure 37.1 provides postconviction relief for constitutional violations and other collateral attacks upon a conviction, including ineffective assistance of counsel. The rule is accessible to a "petitioner in custody under sentence of a circuit court." This court has held that "in custody" for purposes of Ark. R. Crim. P. 37.1 is limited to physical incarceration. Bohanan v. State, 336 Ark. 367, 985 S.W.2d 708 (1999). Here, both appellants argue that Ark. R. Crim. P. 37.1, as interpreted by this court, results in an unconstitutional deprivation of equal protection and due process. We disagree.

Appellants cite to other state jurisdictions, and, with more emphasis, to federal habeas corpus cases, for what they contend should be our definition of "in custody." We do not find these citations persuasive or controlling. We addressed the federal habeas corpus cases in Bohanan, supra, and Kemp v. State, 330 Ark. 757, 956 S.W.2d 860 (1997), and declined to adopt a similarly touted definition. Appellants now urge us to reconsider those decisions in light of the requirements of due process and equal protection. They assert they are denied access to the courts to protect their fundamental constitutional right to effective counsel at trial. However, there is no constitutional right to a postconviction proceeding. Robinson v. State, 295 Ark. 693, 751 S.W.2d 335, 339 (1988). Where one is provided, due process requires that the proceeding be fundamentally fair. Id. at 699, 751 S.W.2d at 339. In Robinson, this court determined that a requirement that a petition must meet certain threshold requirements was fundamentally fair. Equal protection does not require that persons be dealt with identically, only that classification rest on real and not feigned differences, that the distinctions have some relevance to the purpose for which the classification is made, and that their treatment be not so disparate as to be arbitrary. McDole v. State, 339 Ark. 391, 6 S.W.3d 74 (1999). In McDole, we found criminal and civil defendants were not similarly situated. Id. at 401,6 S.W.3d at 81.

Here, those incarcerated are not similarly situated with those who are not incarcerated, and it is not unfair to differentiate between the two classifications. As we noted in Bohanan, the purpose of Ark. R. Crim. P. 37.1 is to provide a narrow remedy designed to prevent wrongful incarceration. Bohanan v. State, 336 Ark. 367, 369, 985 S.W.2d 708, 709 (1999). Since our postconviction remedy is intended to avoid persons being unjustly imprisoned, the distinction between those physically incarcerated and those at liberty, even if that liberty is restricted, is real, relevant and not arbitrary.

Appellants next assert that their petition should have been treated as a petition for a writ of error coram nobis, if it was not proper as a petition for relief under Ark. R. Crim. P. 37.1. The State is correct in noting that the appellants did not raise this issue below. Error coram nobis proceedings are not interchangeable with proceedings under Ark. R. Crim. P. 37.1. Larimore v. State, 327 Ark. 271, 938 S.W.2d 818 (1997). Moreover, as appellants note in their brief, this court has held that a claim of ineffective assistance of counsel in itself is not a ground to grant a writ of error coram nobis. McArty v. State, 335 Ark. 445, 983 S.W.2d 418 (1998). Appellants argue that without relief under either Ark. R. Crim. P. 37.1 or error coram nobis, they are impermissibly barred from asserting their claim of ineffective assistance of counsel. As we have noted, there is no constitutional right to a postconviction proceeding. Appellants are simply not entitled to the relief claimed.

Affirmed.