Billy W. Cooper v. State of Arkansas

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION
October 2, 2003

BILLY W. COOPER

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 02-933

APPEAL FROM THE CIRCUIT COURT OF IZARD COUNTY, CR 99-32-1, HONORABLE JOHN DAN KEMP JR., JUDGE

AFFIRMED

Per Curiam

Appellant pled guilty to rape, incest, and first-degree sexual abuse, and the circuit court sentenced him to a total of twenty-five years' imprisonment. Appellant subsequently filed a petition for postconviction relief pursuant to Ark. R. Cr. P. 37 raising claims of ineffective assistance of counsel, which the circuit court dismissed as untimely filed beyond the ninety-day time limit for filing. See Ark. R. Cr. P. 37.2 (2001).

Appellant then filed a petition for writ of error coram nobis. As grounds for the writ, appellant contended that he was coerced into pleading guilty, that he was denied his right to a speedy trial, and that his due process rights were violated because his judgment and commitment order noted that he was a child sex offender and alleged that he was a sexual predator. Appellant also raised a claim of ineffective assistance of counsel. The circuit court denied the petition, concluding that appellant failed to allege any fact extrinsic to the record showing that judgment would not have been rendered, and that his allegations were outside the scope of coram nobis proceedings. Appellant contends that the circuit court erred in its findings, and in denying the petition without holding an evidentiary hearing. We affirm.

A writ of error coram nobis is an extraordinarily rare remedy, more known for its denial than its approval. Cloird v. State, 349 Ark. 33, 37, 76 S.W.3d 813, 815 (2002). The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Id. We have held that a writ of error coram nobis was available to address certain errors of the most fundamental nature that are found in one of four categories: insanity at the time of trial, a coerced guilty plea, material evidence withheld by the prosecutor, or a third-party confession to the crime during the time between conviction and appeal. Id. Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Id.

Of the claims raised by appellant in his petition, only his claim that his guilty plea was coerced is in the four categories of error for which a writ of error coram nobis is available. Appellant alleged in his petition that his trial counsel, T.J. Hively, surprised him at a pretrial hearing with a plea offer by the State. At the time, Mr. Hively was under federal criminal indictment, and appellant alleges that the trial judge was assisting Mr. Hively defend himself in federal court. He alleges that Mr. Hively threatened him to plead guilty "or else," and that Mr. Hively was not prepared for a jury trial. Thus, because of the alleged association between Mr. Hively and the trial judge, appellant submits that he hastily signed the plea agreement, fearing repercussions if he did not do so.

We first note that while appellant's guilty plea statement and waiver, and his plea agreement appear in the record on appeal, the transcript of appellant's plea hearing has not been included. This alone is reason to affirm the trial court's ruling. Coulter v. State, 343 Ark. 22, 32, 31 S.W.3d 826, 832 (2000). It is well settled that the appellant bears the burden of producing a record that demonstrates error, and that we do not consider matters outside of the record on appeal. E.g., Miles v. State, 350 Ark. 243, 250, 85 S.W.3d 907, 912 (2002).

This court also has consistently held, however, that an appeal of the denial of postconviction relief will not be permitted to go forward where it is clear that the appellant could not prevail. Pardue v. State, 338 Ark. 606, 607, 999 S.W.2d 198, 199 (1999). This appeal presents such a situation.

The writ of error coram nobis serves to fill a gap in the legal system and will provide relief after a plea of guilty only where a remedy was unavailable because a fact exists which was not known when the plea of guilty was entered. Williams v. State, 289 Ark. 385, 387, 711 S.W.2d 479, 481 (1986). The function of the writ of coram nobis is to secure relief from a judgment rendered while there existed some fact which 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 judgment. State v. Larimore, 341 Ark. 397, 406, 17 S.W.3d 87, 93 (2000). The classic example being material evidence withheld by the prosecution discovered by the defendant after his conviction that creates a reasonable probability that the result of the trial would have been different had the evidence been disclosed prior to trial. See Dansby v. State, 343 Ark. 635, 637, 37 S.W.3d 599, 601 (2001). Moreover, due diligence is required in making application for relief, and, in the absence of a valid excuse for delay, the petition will be denied. Larimore, 341 Ark. at 407, 17 S.W.3d at 93. As the circuit court concluded, appellant's allegation of coercion fails to state any fact that was unknown by appellant when he entered his plea of guilty. Accordingly, we affirm the order of the circuit court.

Affirmed.

Thornton, J., not participating.