Sanders v. State
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Cite as 2011 Ark. 127
SUPREME COURT OF ARKANSAS
No.
CR 10-467
Opinion Delivered March
RAYMOND C. SANDERS, JR.,
APPELLANT,
VS.
31, 2011
APPEAL FRO M THE GRANT
COUNTY CIRCUIT COURT,
NO. CR-90-58-1,
HON. JOHN LINEBERGER, JUDGE,
STATE OF ARKANSAS,
APPELLEE,
DISMISSED.
KAREN R. BAKER, Associate Justice
Appellant Raymond C. Sanders, Jr., appeals from the trial court’s denial of
postconviction relief under Arkansas Rule of Criminal Procedure 37 (2010). The trial court
denied relief under Rule 37, but granted relief on Sanders’s petition for writ of error coram
nobis. As a result, Sanders’s conviction and death sentence in this case have already been
vacated and set aside. We, therefore, dismiss the appeal.
Sanders has brought four prior appeals related to his conviction and sentencing for the
murders of Charles and Nancy Brannon, which occurred in Hot Spring County in 1989.
Sanders was convicted of two counts of capital murder by a jury in the Grant County Circuit
Court on change of venue from Hot Spring County. Sanders was sentenced to death on each
count in February 1991. We affirmed the conviction but reversed the sentence and remanded
for resentencing. Sanders v. State, 308 Ark. 178, 824 S.W.2d 353 (1992). After the
Cite as 2011 Ark. 127
resentencing trial, held before a new jury in Grant County, the jury again sentenced Sanders
to the death penalty. Sanders again appealed, and we affirmed. Sanders v. State, 317 Ark. 328,
878 S.W.2d 391 (1994). Sanders filed a petition for postconviction relief, which the trial court
denied without a hearing. Sanders appealed this denial, and this court reversed and remanded
for an evidentiary hearing pursuant to Rule 37. Sanders v. State, 352 Ark. 16, 98 S.W.3d 35
(2003). On remand, facts arose during the evidentiary hearing that established possible
prosecutorial misconduct in the form of the prosecutor’s failing to reveal material evidence,
which is not cognizable under Rule 37 but would be cognizable in a petition for writ of error
coram nobis. Sanders then sought permission from this court to file a petition for the writ in
the trial court, which this court granted. Sanders v. State, 374 Ark. 70, 285 S.W.3d 630 (2008).
Sanders filed both a petition for writ of error coram nobis and a petition for
postconviction relief under Rule 37. Following an evidentiary hearing on both petitions, the
circuit court entered an order finding that the prosecutor’s failure to reveal information about
one of its witnesses prejudiced Sanders’s right to a fair trial. The court granted Sanders’s
petition for the writ of error coram nobis and vacated Sanders’s conviction and sentence, but
denied relief based on Sanders’s Rule 37 petition. This appeal followed.
Sanders claims (1) that the trial court erred in permitting a change of venue from Hot
Spring County to Grant County; (2) that collusion between trial counsel and the prosecutor
amounted to the kind of structural, fundamental error for which no prejudice need be
demonstrated to warrant reversal for ineffective assistance of counsel; and (3) that the use of
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Cite as 2011 Ark. 127
the murder of Frederick LaSalle as an aggravating factor in sentencing was a violation of the
prohibition against ex post facto laws.
We do not address appellant’s arguments because we hold that postconviction relief
under Rule 37 is not available to a defendant who has been granted a new trial through the
issuance of a writ of error coram nobis. Petitions for Rule 37 relief and for writ of error coram
nobis are not procedurally exclusive and may be tried simultaneously; however, the two
proceedings are distinct and not interchangeable. E.g., Dansby v. State, 343 Ark. 635, 37
S.W.3d 599 (2001); Williams v. State, 289 Ark. 385, 711 S.W.2d 479 (1986). The rule
provides that Rule 37 postconviction relief is available to prisoners in custody under sentence
of a circuit court. Ark. R. Crim. P. 37.1(a); see also Pruett v. State, 287 Ark. 124, 697 S.W.2d
872 (1985). Once the trial court granted Sanders’s petition for writ of error coram nobis, there
was no longer a sentence from which postconviction relief could be sought pursuant to Rule
37.
Appeal dismissed.
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