John Troub v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

MAY 16, 2002

JOHN TROUB

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 02-361

PRO SE PETITION FOR WRIT OF CERTIORARI [CIRCUIT COURT OF POPE COUNTY, NO. CR 00-48, HON. JOHN S. PATTERSON., JUDGE]

PETITION DENIED

In 2000, John Troub entered a plea of nolo contendere to one count of rape and was sentenced to a term of 144 months' imprisonment. Approximately one year later he filed in the trial court a pro se petition for writ of error coram nobis. As there is no appeal from a plea of guilty, there was no appeal from the judgment of conviction to this court; thus, there was no cause for Troub to seek leave from this court to reinvest jurisdiction in the trial court before filing the coram nobis petition. The petition was denied, and now before us is petitioner Troub's

petition for writ of certiorari seeking review of the denial of the coram nobis petition. Larimore v. State, 327 Ark. 271, 938 S.W.2d 818 (1997), citing Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984).

··²TopOfPage²·· ··²TopOfPage²··-A writ of error coram nobis is an exceedingly narrow remedy, appropriate only whenan 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, 336 Ark. 580, 986 S.W.2d 407 (1999), citing Troglin v. State, 257 Ark. 644, 519 S.W.2d 740 (1975). The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. A presumption of regularity attaches to the criminal conviction being challenged. 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 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 v. State, 336 Ark. 580, 986 S.W.2d 407 (1999).

In the instant matter, petitioner contended in the error coram nobis petition that: (1) he is actually innocent of the offense of which he was convicted; (2) he was not afforded effective assistance of counsel when he entered the plea of nolo contendere; (3) his plea was not voluntary because the factual basis for it as stated by the prosecutor was inadequate to establish his guilt; (4) there were additional errors that occurred during the plea hearing; (4) the plea was coerced in that his attorney was ineffective, charged an exorbitant fee, and petitioner was actually innocent of the offense of rape as defined by the prosecutor at the plea hearing; (5) he was denied his right of allocution at the plea hearing.

None of these allegations of error is subject to review by a coram nobis proceeding. The issues raised by petitioner were matters which were known, or could have been known topetitioner, at the time the plea was entered and thus could have been settled in the trial court. As a result, the claims do not constitute a ground on which the writ could issue. Pitts, supra; Penn, supra. With respect to the claim that his attorney was ineffective, the claims of ineffective assistance of counsel 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.