Gonder v. State , 2016 Ark. LEXIS 106 ( 2016 )

Cite as 2016 Ark. 140
SUPREME COURT OF ARKANSAS.
No. CR-15-967
DUANE GONDER Opinion Delivered March 31, 2016
PETITIONER
PRO SE APPEAL FROM THE DREW
V. COUNTY CIRCUIT COURT AND
MOTIONS TO SUPPLEMENT
STATE OF ARKANSAS RECORD, TO FILE A
RESPONDENT SUPPLEMENTAL ARGUMENT, AND
FOR APPOINTMENT OF COUNSEL
[NO. 22CR-09-99]
HONORABLE DON GLOVER,
JUDGE
AFFIRMED; MOTIONS MOOT.
PER CURIAM
In 2010, appellant Duane Gonder entered a plea of guilty in the Drew County
Circuit Court to first-degree murder and aggravated assault in case no. 22CR-09-99 for
which he was sentenced to 360 and 72 months’ imprisonment, respectively. He also entered
a guilty plea on the same day to furnishing prohibited articles into a correctional facility in
case no. 22CR-10-53 for which he was sentenced to 120 months’ imprisonment. The
sentences in both cases were ordered served consecutively for an aggregate term of 552
months’ imprisonment.
On July 20, 2015, Gonder filed in the trial court a pro se petition to reinvest
jurisdiction in the trial court to consider a petition for writ of error coram nobis in 22CR-
09-99. While the petition was filed only in 22CR-09-99, it raised issues pertaining to
22CR-10-53 as well as 22CR-09-99. Gonder later filed an amended petition in 22CR-
09-99 in which he again raised arguments in both cases. In its order, the trial court addressed
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the claims raised with respect to both cases and declined to issue the writ. Gonder brings this
appeal. Gonder filed motions seeking to supplement the record, to file a supplemental
argument in this appeal, and for appointment of counsel. Because the appeal is clearly
without merit, those motions are moot.
The standard of review of an order entered by the trial court on a petition for writ
of error coram nobis is whether the trial court abused its discretion in granting or denying
the writ. Newman v. State, 2014 Ark. 7. An abuse of discretion occurs when the court acts
arbitrarily or groundlessly. Nelson v. State, 2014 Ark. 91, 431 S.W.3d 852. The trial court’s
findings of fact, on which it bases its decision to grant or deny the petition for writ of error
coram nobis, will not be reversed on appeal unless they are clearly erroneous or clearly
against the preponderance of the evidence. Newman, 2014 Ark. 7. There is no abuse of
discretion in the denial of error-coram-nobis relief when the claims in the petition were
groundless. Nelson, 2014 Ark. 91, 431 S.W.3d 852.
A writ of error coram nobis is an extraordinarily rare remedy. State v. Larimore, 341
Ark. 397, 17 S.W.3d 87 (2000). Coram-nobis proceedings are attended by a strong
presumption that the judgment of conviction is valid. Id. The function of the writ is to
secure relief from a judgment rendered while there existed some fact that would have
prevented its rendition 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 the
judgment. Newman v. State, 2009 Ark. 539, 354 S.W.3d 61. The petitioner has the burden
of demonstrating a fundamental error of fact extrinsic to the record. Roberts v. State, 2013
Ark. 56, 425 S.W.3d 771.
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The writ is allowed only under compelling circumstances to achieve justice and to
address errors of the most fundamental nature. Id. A writ of error coram nobis is available
for addressing certain errors that are found in one of four categories: (1) insanity at the time
of trial, (2) a coerced guilty plea, (3) material evidence withheld by the prosecutor, or (4) a
third-party confession to the crime during the time between conviction and appeal. Howard
v. State, 2012 Ark. 177, 403 S.W.3d 38.
Gonder’s first point for reversal of the order is that the trial court abused its discretion
by accepting his guilty plea because the plea was coerced by “overcharging” by the State.
He bases the claim on the fact that he was originally charged with kidnapping and aggravated
residential burglary and that those charges were dropped in exchange for his plea of guilty.
He contends that those charges, as well as the furnishing-a-prohibited-articles charge and
the capital-murder charge that was reduced to first-degree murder, were not supported by
the evidence.
Gonder concedes that this court has held that a petitioner’s fear of a more severe
sentence, if he opts to stand trial rather than enter a plea of guilty, is not coercion which
warrants granting a writ of error coram nobis. Nevertheless, he argues that the circumstances
of his case are such that the writ is warranted because there was no “report, prosecution
cover sheet or a primary victim information sheet concerning the kidnapping and
aggravated-residential burglary charges, which the State used to enhance the murder charge
to capital murder.” He also argues that the State withheld evidence from the defense in the
form of victim-impact statements and “the classification of the punishment and statute on
the charge of furnishing a prohibited article,” a crime of which he is actually innocent.
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The trial court held that Gonder’s claims did not justify granting coram-nobis relief,
and we agree. With respect to Gonder’s contention that his guilty plea was coerced by
overcharging, his argument primarily rested on the strength of the evidence against him. In
his petition, he asserted at length that the facts that supported the original charges were
insufficient to sustain the charges. Issues concerning the sufficiency of the evidence or the
credibility of witnesses, however, are not cognizable in coram-nobis proceedings. McArthur
v. State, 2014 Ark. 367, at 7, 439 S.W.3d 681, 685, cert. denied, ___ U.S. ___, 135 S. Ct.
1432 (2015). Gonder did not demonstrate that his plea was obtained through intimidation,
coercion, or threats inasmuch as the petition did not allege that the plea was the result of
fear, duress, or threats of mob violence as previously recognized by this court as cognizable
for coram-nobis relief. Noble v. State, 2015 Ark. 141, 460 S.W.3d 774. The mere fact that
Gonder was aware that he could receive a more severe penalty if he went to trial did not
rise to the level of coercion within the purview of a coram-nobis proceeding. Nelson, 2014
Ark. 91, 431 S.W.3d 852.
As his second ground for reversal of the trial court’s order, Gonder argues that the
State withheld material evidence pertaining to the charge of furnishing a prohibited article
into a correctional facility. If the claim were proven, it would be ground for the writ
because the State’s withholding of material evidence is cause to grant the writ in accordance
with Brady v. Maryland, 373 U.S. 83 (1963).
In Strickler v. Greene, 527 U.S. 263, the Supreme Court revisited Brady and declared
that, when the petitioner contends that material evidence was not disclosed to the defense,
the petitioner must show that “there is a reasonable probability that, had the evidence been
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disclosed to the defense, the result of the proceeding would have been different.” Strickler,
527 U.S. at 280, (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). To determine
whether the proposed attack on the judgment is meritorious so as to warrant the granting
of permission to reinvest jurisdiction in the trial court to pursue a writ of error coram nobis,
this court looks to the reasonableness of the allegations of the petition and to the existence
of the probability of the truth of those claims. Isom v. State, 2015 Ark. 225, 462 S.W.3d
662.
Gonder did not demonstrate a Brady violation in his petition because his claim was
based entirely on the sufficiency of the evidence to prove the charge. Any challenge he
desired to raise to the charge should have been raised before he chose to enter a plea of
guilty. Swift v. State, 2015 Ark. 381, at 4 (per curiam). A claim that the evidence did not
establish that he was guilty was outside the purview of a coram-nobis proceeding. Id.
Gonder next asserts that the State withheld victim-impact statements from the
defense. He contends that the State concealed a statement his mother had made in a letter
to the prosecutor concerning the suffering she had endured because Gonder and the murder
victim were both her sons. The allegation must fail because it is clear that Gonder was
aware of who the victims were before he entered his plea, and he offered no fact in his
petition to establish that the State concealed the opinions of those victims from the defense
before the plea was entered. A court considering a claim of a Brady violation in a coram-
nobis petition in not required to take the allegation at face value without substantiation.
Ventress v. State, 2015 Ark. 181, at 5, 461 S.W.3d 313, 316 (per curiam). Moreover, Gonder
did not demonstrate with facts that he would not have entered a plea of guilty or that the
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outcome of the proceeding would otherwise have been different had the defense had access
to a particular statement. The petitioner in a coram-nobis proceeding has the heavy burden
of demonstrating with proof that there existed some fact that would have prevented
rendition of judgment had it been known to the trial court and that, through no negligence
or fault of his, was not brought forward before rendition of judgment. Westerman v. State,
2015 Ark. 69, 456 S.W.3d 374.
Because Gonder’s petition for writ of error coram nobis did not state a cognizable
claim for relief, the trial court did not abuse its discretion in denying his petition. White v.
State, 2015 Ark. 151, 460 S.W.3d 285. Accordingly, we affirm the order.
Affirmed; motions moot.
Duane Gonder, pro se appellant.
Leslie Rutledge, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellee.
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