Bunch v. State ( 2018 )

Cite as 2018 Ark. 379
SUPREME COURT OF ARKANSAS
No. CR-00-1360
RODNEY BUNCH Opinion Delivered: December 20, 2018
PETITIONER
V. PRO SE PETITION TO REINVEST
JURISDICTION IN THE TRIAL
STATE OF ARKANSAS COURT TO CONSIDER A PETITION
RESPONDENT FOR WRIT OF ERROR CORAM
NOBIS; PRO SE MOTION FOR
SANCTIONS TO BE PLACED UPON
THE OFFICE OF THE ATTORNEY
GENERAL FOR THE STATE OF
ARKANSAS FOR VIOLATION OF
RULE 11 OF THE ARKANSAS RULES
OF APPELLATE PROCEDURE-CIVIL
[PULASKI COUNTY CIRCUIT COURT,
SIXTH DIVISION, NO. 60CR-98-3654]
PETITION DENIED; MOTION FOR
SANCTIONS DENIED.
COURTNEY HUDSON GOODSON, Associate Justice
Pending before this court is petitioner Rodney Bunch’s pro se petition to reinvest
jurisdiction in the trial court to consider a petition for writ of error coram nobis. Bunch’s
claims for coram nobis relief are based on allegations that his sentence was illegally
enhanced because the prosecutor withheld evidence supporting his habitual-offender status
in violation of Brady v. Maryland, 373 U.S. 83 (1963). Also pending is Bunch’s pro se
motion for sanctions to be placed upon the office of the attorney general.
Bunch was convicted of multiple counts of aggravated robbery in three trials arising
from two separate cases docketed in the trial court as 60CR-98-3654 and 60CR-99-276.
Bunch was charged in the first case docketed as 60CR-98-3654 with the aggravated robbery
of Stephanie Springer Transue and was brought to trial in 1999, which resulted in a
mistrial. Before this case was retried, Bunch was convicted of two counts of aggravated
robbery in the case docketed as 60CR-99-276, which stemmed from the robbery of Head
Waves Hair Salon.1 Consequently, the prosecutor amended the felony information in case
number 60CR-98-3654 to include a habitual-offender charge. In that case, Bunch was
convicted of the aggravated robbery of Transue and was sentenced by the trial court as a
habitual offender to life imprisonment pursuant to Arkansas Code Annotated section 5-4-
501(d) (Repl. 1997).2 On appeal, Bunch argued that section 5-4-501(d) was
unconstitutional as applied to him. This court rejected the argument and affirmed the
conviction and the enhanced sentence of life imprisonment. Bunch v. State, 344 Ark. 730,
43 S.W.3d 132 (2001). It is from this sentence that Bunch seeks coram nobis relief.
1
Bunch was subsequently convicted of an additional four counts of aggravated
robbery and one count of sexual abuse in a separate trial in case number 60CR-99-276,
which stemmed from a separate robbery of Salon MDC. Bunch was again sentenced as a
habitual offender and sentenced to life imprisonment. This court affirmed. Bunch v. State,
346 Ark. 33, 57 S.W.3d 124 (2001) (overruled by Grillot v. State, 353 Ark. 294, 107 S.W.3d
136 (2003), which clarified the standard of review used to analyze the trial court’s ruling on
the voluntariness of a confession).
2
Section 5-4-501(d)(1)(A) mandates a life sentence if a defendant has been convicted
of a violent Y felony such as aggravated robbery and has previously been convicted of two
or more violent Y felonies. Because a life sentence was mandatory, it was not necessary to
submit the determination of Bunch’s sentence to the jury.
2
Shortly after this court had affirmed Bunch’s conviction and life sentence, the Arkansas
Court of Appeals affirmed Bunch’s two previous convictions for aggravated robberies
committed at Head Waves Hair Salon. Bunch v. State, CR-00-1035 (Ark. App. May 16,
2001) (unpublished).
Bunch fails to make sufficient allegations to warrant coram nobis relief, and because
coram nobis relief is not an available remedy for the purpose of seeking a reduction in a
sentence, we deny the petition to proceed in the trial court with a coram nobis petition.
Furthermore, Bunch’s pro se motion for sanctions pursuant to Rule 11 (2017) of the
Arkansas Rules of Appellate Procedure –Civil, is wholly without merit. Appellate Rule 11
is applicable to civil appellate proceedings and a petition to reinvest jurisdiction in the trial
court to consider a petition for a writ of error coram nobis is a criminal proceeding. See
Whitney v. State, 2018 Ark. 138, reh’g denied (June 7, 2018) (the term “writ of error coram
nobis” has been recognized in our common law for all motions for new trial in a criminal
case). In any event, Bunch’s allegations underlying his claim for sanctions fail to establish
that the appellee’s response was frivolous and lacked a reasonable legal or factual basis. See
Stilley v. Hubbs, 344 Ark. 1, 40 S.W.3d 209 (2001). We therefore deny Bunch’s pro se
motion for sanctions.
The petition for leave to proceed in the trial court is necessary because the trial
court can entertain a petition for writ of error coram nobis after a judgment has been
affirmed on appeal only after we grant permission. Roberts v. State, 2013 Ark. 56, 425
S.W.3d 771. A writ of error coram nobis is an extraordinarily rare remedy. Id. Coram
3
nobis proceedings are attended by a strong presumption that the judgment of conviction is
valid. Id.; Westerman v. State, 2015 Ark. 69, 456 S.W.3d 374. 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. Roberts, 2013 Ark. 56, 425 S.W.3d 771. The petitioner has the burden of
demonstrating a fundamental error of fact extrinsic to the record. Id.
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.
Id.; Howard v. State, 2012 Ark. 177, 403 S.W.3d 38.
Bunch has raised a Brady claim, which comes within the purview of coram nobis
relief. There are three elements of a Brady violation: (1) the evidence at issue must be
favorable to the accused, either because it is exculpatory or because it is impeaching; (2) the
evidence must have been suppressed by the State, either willfully or inadvertently; (3)
prejudice must have ensued. Carner v. State, 2018 Ark. 20, 535 S.W.3d 634 (citing Strickler
v. Greene, 527 U.S. 263 (1999)). When determining whether a Brady violation has
occurred, it must first be established by the petitioner that the material was available to the
State prior to trial and that the defense did not have it. Id.
4
In his petition, Bunch challenges the validity of his enhanced sentence as a habitual
offender resulting from his prior aggravated-robbery convictions in case number 60CR-99-
276 wherein he was convicted of the aggravated robbery of Liz Kirk and Susan Kennedy
and theft of property from Head Waves Hair Salon.3 Consequently, he alleges entitlement
to a reduction in his sentence rather than a new trial on the underlying conviction for the
aggravated robbery of Transue in case number 60CR-98-3654. Bunch asserts that one of
the two previous convictions relied on by the prosecutor to establish his habitual-offender
status was invalid and contends that the prosecutor had withheld the judgment as well as
the criminal information to conceal the invalidity of one of the two convictions.
Specifically, Bunch argues that there are inconsistencies between the information
and judgment-and-commitment order with respect to the victims named in counts five, six,
and seven of the information.4 In any event, the two prior convictions were clearly valid.
3
Bunch had been charged in an information that contained thirty-eight criminal
counts but was tried in case number 60CR99-276 for two counts of aggravated robbery as
set forth in the information in counts five and six and one count of theft of property from
Head Waves Salon as set forth in count seven of the information.
4
Bunch’s arguments regarding invalidity of his prior convictions for counts five
through seven are unclear. It appears that Bunch is asserting that count seven which
included the theft of property charge did not include the name of the victim. Bunch asserts
that Chris Woodall was not listed in counts five through seven, but nevertheless testified.
According to Bunch, Chris Woodall’s testimony should have been excluded because he
was not named in the information. However, the direct appeal record shows that Woodall
was the owner of Head Waves. In addition, Bunch alleges that his conviction for the
aggravated robbery of Susan Kennedy as set forth in count six was not supported by
sufficient evidence in that Kennedy could not identify him as the perpetrator. Thus,
Bunch maintains that his conviction for the robbery of Kennedy is invalid. However, Liz
5
See Bunch, CR-00-1035 (Ark. App. May 16, 2001) (affirming Bunch’s convictions by a
Pulaski County jury for two counts of aggravated robbery). There can be no doubt that
Bunch’s previous convictions were matters that were not unknown by the defense at the
time he was sentenced as a habitual offender following his second trial for the aggravated
robbery of Transue in case number 60CR-98-3654. Therefore, Bunch has failed to
demonstrate that the prosecutor concealed material matters in violation of Brady that
would have changed the outcome of his sentencing. Carner, 2018 Ark. 20, 535 S.W.3d
634. Nor has Bunch raised allegations establishing matters extrinsic to the record that
would have prevented the imposition of his life sentence. Roberts, 2013 Ark. 56, 425
S.W.3d 771.
Furthermore, Bunch’s allegation challenging his sentence and seeking a reduction
in that sentence does not fit within the recognized bases for coram nobis relief and is not
the proper remedy to challenge an allegedly illegal sentence. This court has previously
addressed this issue in Burks v. State, 2009 Ark. 598, 359 S.W.3d 402, in which the State
procured the cooperation of a witness by supporting the witness’s petition for a writ of
error coram nobis seeking a reduction in a sentence that had been previously imposed
pursuant to a plea agreement. In Burks, the circuit court granted the coram nobis relief
Kirk listed as the victim in count five identified Bunch as the perpetrator and Chris
Woodall also identified Bunch as the perpetrator. The judgment-and-commitment order
shows that Bunch was convicted of two aggravated robbery charges for which he was
sentenced to 240 months’ imprisonment and that the theft of property conviction merged
with the two aggravated robbery convictions.
6
and reduced the sentence after the witness had testified favorably for the State. Id. at 2,
359 S.W.3d at 405. Before the circuit court granted coram nobis relief, the defendant in
Burks had moved to suppress the testimony because, among other things, cooperation was
procured by a promise involving an illegal use of the writ of error coram nobis. Id. Despite
the challenge to the improper use of the writ of error coram nobis, this court affirmed the
circuit court’s denial of the motion to suppress because the defendant’s suppression
motion did not represent a direct attack on the reduced sentence. Id. However, in a
footnote, this court explained that “our court has repeatedly held that the grant of a writ of
error coram nobis only affords one remedy—a new trial.” Id. at 4 n.2, 359 S.W.3d at 406
n.2. Consequently, this court referred the prosecutor, the defense attorney, and the circuit
judge to the Committee on Professional Conduct and the Judicial Discipline and Disability
Commission because they had ignored clear precedent by using a writ of coram nobis as an
improper means to reduce a sentence. Id. Accordingly, coram nobis is not an avenue
through which a reduction in sentence can be obtained.
Petition denied; motion for sanctions denied.
7