Robert Earl Blackwell v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 98-456

NOT DESIGNATED FOR PUBLICATION

ROBERT BLACKWELL

Petitioner

v.

STATE OF ARKANSAS

Respondent

Opinion Delivered May 12, 2005

PRO SE MOTION FOR RECONSIDERATION OF PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT TO CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS [CIRCUIT COURT OF PULASKI COUNTY, CR 95-2175]

MOTION DENIED

PER CURIAM

In 1997, Robert Blackwell, a dentist, was found guilty by a jury of violating the Arkansas Medicaid Fraud Act, Ark. Code Ann. §§ 5-55-101, et seq. (Repl. 1997). He was sentenced to sixty months' imprisonment, ordered to pay a fine, and directed to make restitution. We affirmed. Blackwell v. State, 338 Ark. 671, 1 S.W.3d 399 (1999).

In 2001, Blackwell asked this court to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis.

The petition for leave to proceed in the trial court was 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). The petition to reinvest jurisdiction in the trial court was denied because petitioner raised no ground cognizable in a coram nobis proceeding. Blackwell v. State, CR 98-456 (Ark. January 24, 2002) (per curiam).

In 2004, petitioner filed a second petition in which he again sought leave to proceed in the trial court with a petition for writ of error coram nobis. The petition was denied on the ground that petitioner had again failed to state any basis on which the writ could be issued. Blackwell v. State, CR 98-456 (Ark. April 15, 2004) (per curiam). Petitioner filed a motion for reconsideration that was also denied. Blackwell v. State, CR 98-456 (Ark. June 3, 2004) (per curiam). The United States Supreme Court denied certiorari. Blackwell v. Arkansas, No. 04-5953 (U.S. October 12, 2004).

Also in 2004, petitioner a third petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis. -The petition was denied. Blackwell v. State, CR 98-456 (Ark. February 24, 2005) (per curiam). Petitioner now asks that we reconsider the petition.

In the motion for reconsideration petitioner reiterates the claims raised in the petition with particular emphasis on his contention that the State did not have authority to charge him without a grand jury indictment and he was tried in the wrong venue. As we said in our opinion, the question of whether petitioner was tried in the correct court has been fully addressed and no error was found. We found on direct appeal that there was no legal impediment to petitioner's being tried in Pulaski County. Blackwell, supra, at 675-676. Issues which were raised at trial and on the record on direct appeal of the judgment are settled and are not cognizable as grounds for the writ. Mosley v. State, 333 Ark. 273, 968 S.W.2d 612 (1998).

With respect to petitioner's assertion that the State could not try him absent a grand jury indictment, it is well settled that states are not required to charge by indictment but may charge by information. Hurtado v. California, 110 U.S. 516, 4 S. Ct. 111, 28 L. Ed. 232 (1884). This court has addressed this issue on a number of occasions and has consistently refused to extend the right to grand jury indictment to proceedings in this state. Taylor v. State, 303 Ark. 586, 977 S.W.2d 519 (1990) (citing Hamm v. State, 296 Ark. 385, 757 S.W.2d 932 (1988)).

The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature and are attended by a strong presumption that the judgment of conviction is valid. Pitts v. State, 336 Ark. 580, 986 S.W.2d 407 (1999).

The petitioner has the burden of establishing that there was some fundamental error at trial or that there existed some fact which would have prevented rendition of the judgment 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. Larimore v. State, 341 Ark. 397, 17 S.W.3d 87 (2000). In none of the three petitions filed in this court to invest jurisdiction in the trial court has petitioner met that burden.

Motion denied.

Dickey, J., not participating.