Almer Willis Wright v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

APRIL 24, 2003

ALMER WILLIS WRIGHT

Petitioner

v.

STATE OF ARKANSAS

Respondent

CACR 01-472

PRO SE PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT TO CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS [CIRCUIT COURT OF HOT SPRING COUNTY, NO. CR 2000-53-2]

PETITION DENIED

Almer Willis Wright was found guilty by a jury of sexual abuse in the first degree and two counts of rape arising from sexual activity with two children. An aggregate sentence of thirty years' imprisonment was imposed. The court of appeals affirmed. Wright v. State, CACR 01-472 (Ark. App. December 19, 2001).

Wright subsequently filed in the trial court a timely petition pursuant to Criminal Procedure Rule 37.1 challenging the judgment. The petition was denied, and Wright filed an untimely notice of appeal. He then sought leave to proceed with a belated appeal of the order. We remanded the motion for an evidentiary hearing in the trial court and subsequently denied the motion. Wright v. State, CR 02-764 (December 19, 2002) (per curiam).

Now before us is petitioner Wright's petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis. The sole ground for relief is the claim that the prosecutor suppressed and excluded certain evidence until after the time had elapsed for petitionerto file a petition for postconviction relief pursuant to Criminal Procedure Rule 37.1. Petitioner does not contend that the evidence, which consists of medical reports from Arkansas Children's Hospital and a complaint petitioner filed with the Department of Human Services (DHS) against the State's chief witness against him, was not available to him at the time of his trial.

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It appears that petitioner has misunderstood the scope of a error coram nobis proceeding. Coram nobis proceedings, which are attended by a strong presumption that the judgment of conviction is valid, apply to the petitioner's trial, not to a postconviction proceeding under Rule 37.1. A coram nobis action is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature occurring at the time of trial. See Pitts v. State, 336 Ark. 580, 986 S.W.2d 407 (1999). While a writ of error coram nobis is available to address an error of the most fundamental nature that includes material evidence withheld by the prosecutor, the petitioner must demonstrate that there is a reasonable probability that the judgment of conviction would not have been rendered, or would have been prevented, had the evidence been disclosed at trial. Larimore v. State, 341 Ark.397, 17 S.W.3d 87 (2000).

An allegation that there was material evidence that the petitioner did not know about within the time period allowed for filing a Rule 37 petition is not within the purview of a error coram nobis proceeding.

Petitioner does not state when he filed the complaint with DHS against the witness against him, but even if it could construed from petitioner's allegation that he is contending that the complaint was suppressed at trial, he clearly knew of the complaint because he himself filed it. As to the medical records from Children's Hospital, there was testimony at trial pertaining to the examination of the victims at that hospital, and petitioner has offered nothing to demonstratethat the hospital records were not subject to subpoena at the time of trial. Accordingly, petitioner has failed to demonstrate that he should be allowed to proceed in the trial court with a petition for writ of error coram nobis.

Petition denied.

Glaze, J., not participating.