George All v. State of Arkansas

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

September 30, 2004

GEORGE ALL

Petitioner

v.

STATE OF ARKANSAS

Respondent

CACR 01-38

PRO SE PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT TO CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS [CIRCUIT COURT OF SEBASTIAN COUNTY, FT. SMITH DISTRICT, NO. CR 2000-59]

PETITION DENIED

Per Curiam

In 2000, George All was found guilty by a jury of raping a nursing home resident in violation of Ark. Code Ann. §5-14-103(a)(2) (Repl. 1997), which prohibits a person from engaging "in sexual intercourse or deviate sexual activity with another person...not his spouse who is a resident of a hospital, nursing home, human development center, or other similar facility, and who is incapable of consent because he is mentally defective or mentally incapacitated." The State presented evidence that All had gotten into the victim's bed and placed his penis in her mouth and inserted his finger's "inside" the victim. All was sentenced to ten years' imprisonment.

All argued on appeal that the evidence was insufficient to show that the victim was indeed mentally defective or incapacitated at the time of the incident. Citing the testimony of an expert witness at trial that the victim's intellectual ability fell within the bottom one percent of the general population and that she was mentally retarded, the court of appeals affirmed the judgment. All v. State, CA CR 01-38 (Ark. App. September 5, 2001).

All subsequently filed in the trial court a petition pursuant to Criminal Procedure Rule 37.1 challenging the judgment. The petition was denied, and All filed a motion in this court seeking to lodge an appeal from the order without a certified record. The motion was denied. All v. State, CR 02-562 (Ark. September 26, 2002) (per curiam).

All now asks that this court reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis.1 -The petition for leave to proceed in the trial court is necessary because the circuit court can entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal only after we grant permission Dansby v. State, 343 Ark. 635, 37 S.W.3d 599 (2001).

-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. 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, citing Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984). Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. After reviewing the instant petition, we do not find that petitioner has stated a ground sufficient to warrant granting leave to proceed with a petition for writ of error coram nobis in the trial court.

As grounds for issuance of a writ of error coram nobis, petitioner first contends that the State at trial did not promptly comply with his defense motion for discovery in that it provided the requested material only one day before trial. He asserts that the failure of the trial court to determine whether the defense had been prejudiced by the late disclosure and grant a continuance was prejudicial to him.

Clearly, the discovery issue was one which could have been argued and settled in the trial court and on the record on appeal. As such, it is not a ground for issuance of a writ of error coram nobis. The remedy is appropriate only when an issue was not addressed or could not have been addressed at trial because it was somehow hidden or unknown and would have prevented the rendition of the judgment had it been known to the trial court. Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984) (citing Troglin v. State, 257 Ark. 644, 519 S.W.2d 740 (1975)).

Petitioner next argues that the evidence adduced at trial was insufficient to show that the victim was incompetent. He cites "newly discovered evidence" from the Merck Manual, a compilation of medical information published by a pharmaceutical company, as substantiation for the claim. He further argues that the expert witness who testified that the victim was incompetent was relying on the opinion of another doctor and thus the State improperly relied on his testimony to establish the victim's incompetence.

The issues are also ones which either were, or could have been, addressed at trial and raised on appeal. As for the new evidence petitioner advances, it is in essence a simple assertion that there was evidence available that could have been used to attack the State's position that the victim was incompetent. A mere claim of newly discovered evidence, however, in itself is not a basis for relief under coram nobis. Smith v. State, 301 Ark. 374, 784 S.W.2d 595 (1990).

Petition denied.

1 For clerical purposes, the instant petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis was assigned the same docket number as the direct appeal of the judgment.