John Raymond Jones v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 04-346

NOT DESIGNATED FOR PUBLICATION

JOHN RAYMOND JONES

Appellant

v.

STATE OF ARKANSAS

Appellee

Opinion Delivered  September 22, 2005

APPEAL FROM THE CIRCUIT COURT OF HOWARD COUNTY, CR 1999-117, HON. CHARLES A. YEARGAN, JUDGE

AFFIRMED

PER CURIAM

On May 3, 2000, John Raymond Jones entered a negotiated plea of guilty to one count of aggravated robbery and one count of kidnapping and was sentenced to 120 months' imprisonment. Jones filed a petition for postconviction relief in 2003, which was denied, and, in an unpublished opinion, we affirmed the denial because the petition was untimely. Jones v. State, CR 03-1417 (Ark. March 25, 2004). Jones filed in the trial court a petition for writ of error coram nobis on February 4, 2004. By order entered March 1, 2004, the court denied the petition, indicating the defendant failed to state grounds upon which the writ could be issued. This appeal followed.

In his petition, appellant Jones asserted four arguments as grounds for the writ. First, he alleged that because he was sixteen years old at the time he was charged, he was not properly tried in circuit court, and jurisdiction was not proper. Next, appellant alleged that the felony counts should have been imposed as Class "B" rather than Class "Y" felonies in accord with his plea agreement. For his third point, appellant alleged the trial court failed to comply with the requirements of Ark. Code Ann. § 16-90-106 (1987) in accepting his plea by not fully explaining the differences between Class "B" and Class "Y" felonies. For his last point, appellant alleged ineffective assistance of counsel because he asserted his attorney was using methamphetamine during the sentencing. Appellant's points on appeal reassert these same arguments.

Denial of a writ of error coram nobis is reviewed by appeal. Magby v. State, 348 Ark. 415, 72 S.W.3d 508 (2002) (per curiam). The standard of review of the denial of a writ of error coram nobis is whether the trial court abused its discretion in denying the writ. Id. at 420, 72 S.W.3d at 510. An abuse of discretion occurs when the circuit court acts arbitrarily or groundlessly. Cloird v. State, ___ Ark. ___, ___ S.W.3d ___ (May 20, 2004).

The function of the writ of error 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. Id. Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Echols v. State, ___ Ark. ___, ___ S.W.3d ___ (January 20, 2005) ("Echols Error Coram Nobis II" or "Echols ECN II"). R The writ 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).

We have held that a writ of error coram nobis was available to address certain errors 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 v. State, 336 Ark. 580, 986 S.W.2d 407 (1999) (per curiam). Appellant's asserted grounds for the writ do not fall within any of those four recognized categories. Appellant has clearly not made any allegations concerning his sanity or any third-party confession. The arguments appellant does make concerning the impropriety of his plea do not include assertions of coercion or the withholding of evidence by the prosecution.

Moreover, the arguments appellant raises in his petition are not cognizable in coram nobis proceedings because those issues could have been raised previously. Due diligence is required in making an application for relief under the writ, and in the absence of a valid excuse for delay, the petition will be denied. Echols ECN II, at ____, ___ S.W.3d at ___. Due diligence requires that 1) the defendant be unaware of the fact at the time of trial; 2) he could not have, in the exercise of due diligence, presented the fact at trial; or 3) upon discovering the fact, did not delay bringing the petition. Id. The facts appellant alleges in support of his petition, his age, the class felony in his plea agreement, the information provided by the court at his plea hearing, and his attorney's use of methamphetamine, were not unknown to him or hidden, and the issues those facts raised could have been asserted when the plea was entered or in a timely petition for postconviction relief. See, Williams v. State, 289 Ark. 385, 711 S.W.2d 479 (1986).

Appellant's only proffered excuse for the delay in raising the claims is that his youth, coupled with his own, and his father's, lack of education hampered his ability to recognize and articulate those challenges. Appellant has not provided good cause to excuse an almost four-year delay. This court has held that a claim of ineffective assistance of counsel is not a ground to grant a writ of error coram nobis. McArty v. State, 335 Ark. 445, 983 S.W.2d 418 (1998). Appellant's other claims are likewise defective because the issues could have properly been raised in a postconviction petition.

We agree with the trial court's determination that appellant failed to state grounds to support the issuance of the writ. The court, therefore did not abuse its discretion in denying the writ, and we must affirm.

Affirmed.