Carl E. Robinson v. State of Arkansas

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

NOVEMBER 13, 2003

CARL E. ROBINSON

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 03-657

PRO SE MOTION FOR APPELLANT'S REPLY BRIEF TO BE DUPLICATED AT PUBLIC EXPENSE [CIRCUIT COURT OF ASHLEY COUNTY, NO. CR 83-56, HON. ROBERT VITTITOW, JUDGE]

APPEAL DISMISSED; MOTION MOOT

Per Curiam

In 1983, Carl E. Robinson entered a plea of guilty to capital murder and was sentenced to life imprisonment without parole. Robinson subsequently filed a petition for postconviction relief pursuant to Criminal Procedure Rule 37.1 in the trial court which was denied. We affirmed. Robinson v. State, 296 Ark. 86, 752 S.W.2d 34 (1988).

In 2003, Robinson filed a pro se petition for writ of error coram nobis in the trial court.1 The petition was denied, and Robinson has lodged an appeal from the order in this court.

Now before us is appellant Robinson's motion asking that the reply brief be duplicated at public expense. We declare the motion moot and dismiss the appeal because the error coram nobis petition filed in the trial court did not state a ground for relief that warranted issuing a writ of error coram nobis. This court has consistently held 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. Seaton v. State, 324 Ark. 236, 920 S.W.2d 13 (1996); Harris v. State, 318 Ark. 599, 887 S.W.2d 514 (1994); Reed v. State, 317 Ark. 286, 878 S.W.2d 376 (1994); see Chambers v. State, 304 Ark. 663, 803 S.W.2d 932 (1991); Johnson v. State, 303 Ark. 560, 798 S.W.2d 108 (1990); Williams v. State, 293 Ark. 73, 732 S.W.2d 456 (1987).

A writ of error coram nobis is an extraordinarily rare remedy, more known for its denial than its approval. Larimore v. State, 341 Ark.397, 17 S.W.3d 87 (2000). The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984); Pitts v. State, 336 Ark. 580, 986 S.W.2d 407 (1999). 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. Pitts, supra. Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid.

Appellant contended that he was entitled to error coram nobis relief on the grounds that: (1) the state failed to prove that he was guilty of the underlying felony to support the charge of capital murder; (2) the trial court lacked jurisdiction to convict him; (3) the trial court falsified the judgment and commitment order; and (4) the trial court made certain constitutional errors.

All of the grounds concern matters which could have been raised and settled at trial or raised and settled in a motion for new trial. None of the claims involved matters extrinsic to the record or

otherwise fell within the purview of a writ of error coram nobis. Error coram nobis does not lie to address issues which could have been raised at trial. Pitts v. State, supra.

To the degree that the claims could be considered allegations that appellant was not afforded effective assistance of counsel at trial, the allegations were properly raised under Criminal Procedure Rule 37.1. A coram nobis proceeding is not a substitute for proceeding under Rule 37.1 or an opportunity to revisit claims which have already been argued under the rule. See McArty v. State, 335 Ark. 445, 983 S.W.2d 418 (1998).

Appeal dismissed; motion moot.

1 In those instances where the judgment of conviction was entered on a plea of guilty or nolo contendere, or the judgment of conviction which could have been appealed was not appealed and subsequently affirmed on appeal, the petition for writ of error coram nobis is filed directly in the trial court. If the judgment of conviction was affirmed on appeal, the petitioner must first proceed in this court and gain leave to file a petition in the trial court by means of a petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis. Dansby v. State, 343 Ark. 635, 37 S.W.3d 599 (2001).