Patrick Robertson v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

MARCH 15, 2001

PATRICK ROBERTSON

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 95-17

PRO SE PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT TO CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS [CIRCUIT COURT OF JEFFERSON COUNTY, NO. CR 93-44-2-3]

PETITION DENIED

In 1994, Patrick Robertson was convicted of delivery of a controlled substance and sentenced as a habitual offender to sixty years' imprisonment. We affirmed. Robertson v. State, CR 95-17 (November 6, 1995). In 1996, Robertson filed in the trial court a petition for postconviction relief pursuant to Criminal Procedure Rule 37. We upheld the court's decision to deny the petition on the ground that it was not timely filed. Robertson v. State, CR 97-707 (October 1, 1998).

Robertson now asks that this court reinvest the trial court with jurisdiction to consider a petition for writ of error coram nobis in the case. 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. ··²TopOfPage²····²TopOfPage²··-

A writ of error coram nobis is an extraordinarily rare remedy, more known for its denialthan 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. When determining whether a petitioner is entitled to relief as a result of material evidence withheld by the prosecutor, the petitioner must demonstrate that there is a reasonable probability that the judgment of conviction would not have been rendered, or would have been prevented, had the evidence been disclosed at trial. Larimore, supra. A mere claim of newly discovered evidence in itself is not a basis for relief under coram nobis. Smith v. State, 301 Ark. 374, 784 S.W.2d 595 (1990). 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 Robertson has stated any ground sufficient for this court to grant leave to proceed with a petition for writ of error coram nobis in the trial court.

Petitioner contends that he is entitled to error coram nobis relief on the grounds that: (1) he was incompetent at the time of trial as a result of his drug abuse; (2) the trial court erred in trying him as an adult rather than transferring the case to juvenile court on the basis that the prior convictions used to enhance his sentence were committed when he was sixteen and seventeen years old; and (3) he was not afforded the opportunity to plead guilty.

Clearly, petitioner was aware at the time of his trial in 1994 of the grounds he now advances as grounds for a writ of error coram nobis. Each of the issues raised, including that he was rendered incompetent to stand trial by his past drug use, could have been raised at trial and on the record on direct appeal of the judgment. To the degree that petitioner's claims can be viewed as assertions that he was not afforded effective assistance of counsel at trial, such claims could have been raised in a timely petition for postconviction relief pursuant to Criminal Procedure Rule 37. A coram nobis proceeding is not a substitute for proceeding under Rule 37. McDonald v. State, 295 Ark. 482, 688 S.W.2d 302 (1985).

Petition denied.