Joseph O'Neal v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 95-148

NOT DESIGNATED FOR PUBLICATION

JOSEPH O'NEAL

Petitioner

v.

STATE OF ARKANSAS

Respondent

Opinion Delivered April 7, 2005

PRO SE PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT TO CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS [CIRCUIT COURT OF CHICOT COUNTY, CR 93-64-1, HON. DON GLOVER, JUDGE]

PETITION DENIED

PER CURIAM

Joseph O'Neal and Charles McGehee were charged with capital murder in the death of an elderly woman. The state alleged that O'Neal and McGehee killed the victim in the course of and in furtherance of committing the offenses of robbery, burglary and rape. O'Neal was tried separately from McGehee, and found guilty of first-degree murder, robbery, and burglary. He was sentenced to life imprisonment for the murder and twenty years each for robbery and burglary. We affirmed. O'Neal v. State, 321 Ark. 626, 907 S.W.2d 116 (1995).

On December 8, 2004, O'Neal filed a petition asking 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 was denied because there were no grounds offered in the petition for issuance of the writ. Instead, petitioner asked that we consider the coram nobis petition that he planned to file in circuit court, a copy of which he had mailed to this court. As this court does not consider trial court petitions, the petition to reinvest jurisdiction was denied without prejudice to petitioner's filing within fifteen days a subsequent petition containing the grounds he desired this court to consider. O'Neal v. State, CR 95-148 (Ark. February 10, 2005) (per curiam). Now before us is the subsequent petition. Petitioner filed a motion for appointment of counsel with the petition.

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. Echols v. State, ___ Ark. ___, ___ S.W.3d ___ (January 20, 2005), reh. denied, ____Ark. ___, ____S.W.3d ____(February 24, 2005). After reviewing the instant petition, we do not find that petitioner has stated good cause to grant leave to proceed with a petition for writ of error coram nobis in the trial court. Accordingly, the petition and motion for appointment of counsel are denied.

Petitioner contends that he is entitled to issuance of the writ on the grounds that: (1) the State and the trial judge vouched for witnesses; (2) he was not afforded effective assistance of counsel at his trial; (3) the court reporter did not perform satisfactorily at trial and the trial court failed to have the trial properly transcribed; (4) he was not separately charged with burglary and robbery; (5) his conviction of both burglary and robbery as the underlying felonies for the charge of murder constituted double jeopardy.0 We first note that petitioner's claim that his trial attorney was ineffective is outside the purview of a coram nobis proceeding. McArty v. State, 335 Ark. 445, 983 S.W.2d 418 (1998) (per curiam). Such allegations are properly raised in a timely petition pursuant to Criminal Procedure Rule 37.1.

The remainder of petitioner's claims are assertions of trial error, some of which were raised in the trial court and subsequently on direct appeal. Error coram nobis does not lie to address issues which could have been, or were, raised at trial. Pitts v. State, supra. Coram nobis proceedings are limited to those issues which could not have been addressed at trial and subsequently on the record on direct appeal because the issue was somehow hidden or unknown and would have prevented the rendition of the judgment had it been known to the trial court; Echols, supra; Brown v. State, 330 Ark. 627, 955 S.W.2d 901 (1997); Penn v. State, supra (citing Troglin v. State, 257 Ark. 644, 519 S.W.2d 740 (1975)). None of the issues raised by petitioner is a ground for issuance of the writ. Petition denied.

0 _When petitioner raised the same argument on direct appeal, we declined to consider the issue because it was not preserved for appeal. We pointed out at that time that petitioner was not precluded from raising the issue in a separate proceeding under Criminal Procedure Rule 37.1.