DocketNumber: No. CR-18-419
Citation Numbers: 575 S.W.3d 547, 2019 Ark. 183
Judges: Baker
Filed Date: 6/6/2019
Status: Precedential
Modified Date: 1/21/2022
Petitioner Tracy Lee Bryant asks for permission to proceed with a belated appeal of an order denying his pro se petition for writ of error coram nobis. He has also filed a pro se motion requesting that counsel be appointed for the proceedings, a motion seeking to supplement his appeal, a motion to file rule on clerk in which he seeks permission to file pleadings in the matter without a notarized signature, a motion in which he seeks to add "to [his] error coram nobis," a second motion to supplement, and a second motion to add. In his coram nobis petition, Bryant challenged the judgment and commitment order that was entered subsequent to his guilty plea on the charges of aggravated robbery, theft of property, and two counts of theft by receiving.
Under Arkansas Rule of Appellate Procedure-Criminal 2(e), this court may act on and decide a case in which the notice of appeal was not filed in the time prescribed when a good reason for the omission is shown. Yet this court need not consider the reasons for the petitioner's failure to file a timely notice of appeal when it is clear from the record that the postconviction petition denied was wholly without merit. Latham v. State ,
A writ of error coram nobis is an extraordinarily rare remedy, more known for its denial than its approval. State v. Larimore ,
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. Griffin v. State ,
Bryant asserted three claims in his petition: (1) that his allegations of mental disease or defect were not fully adjudicated; (2) that his guilty plea was coerced; and (3) that his trial counsel was ineffective. This court has repeatedly held that an ineffective-assistance-of-counsel claim is not a ground for the writ. Mosley v. State ,
Bryant's competency claim in the petition is not clear. He contends that there was trial error in accepting his plea without having the mental evaluation mandated when his attorney raised the potential for a defense based on mental disease or defect. He alleged that he was prejudiced at the sentencing hearing because he did not have such an evaluation. Yet, as he acknowledges, Bryant's decision to enter a plea of guilt effectively waived any such defense.
To the extent that Bryant alleged he was incompetent to enter his plea, he did not plead any facts in the petition to support that claim and certainly pointed to none outside the record. Bryant noted considerable discussion at his sentencing about his failure to take medications prescribed for bipolar disorder after his release from prison. It is recognized that not every manifestation of mental illness demonstrates incompetence to stand trial. Newman v. State ,
*551Bryant's final claim of a coerced guilty plea was intertwined with his earlier allegations of incompetency. However, Bryant failed to offer additional facts to support those allegations. Instead, Bryant raised additional issues concerning whether his plea was voluntary, the court's failure to follow proper plea procedure, and ineffective assistance of counsel.
To prevail on a claim that a writ of error coram nobis is warranted because a plea was coerced, the petitioner bears the burden of establishing that the plea was the result of fear, duress, or threats of mob violence as previously recognized by this court as grounds for a finding of coercion. Griffin ,
Because the only cognizable claims raised in the petition did not state adequate facts to support those claims, the coram nobis petition denied was wholly without merit. It is therefore clear that Bryant can show no abuse of discretion in the denial of relief, and he could not prevail on appeal.
Motion for belated appeal denied; motions for appointment of counsel, to supplement appeal, to file rule on clerk, to add, second motion to supplement, and second motion to add moot.
Hart, J., dissents.
Josephine Linker Hart, Justice, dissenting.
There is no notice of appeal in the record of Mr. Bryant's case. A notice of appeal is necessary to confer jurisdiction on this court. Bray v. State ,
The majority has erroneously resorted to the new provisions in Rule 2 of the Arkansas Rules of Appellate Procedure-Criminal. The provision that the majority purports to rely on, Rule 2(e), became effective on January 1, 2019. Most of Mr. Bryant's motions were filed well before Rule 2(e) became effective. His motion for a belated appeal was filed on May 10, 2018. His motion for appointment of counsel was filed on August 20, 2018. His motion to supplement his appeal was filed on October 31, 2018. Accordingly, the jurisdictional defect in this case should have been apparent to the majority more than a year before this case was submitted.
I note further that the majority's interpretation of Rule 2(e) as authority to run roughshod over the due-process rights of an incarcerated pro se litigant is indefensible. Rule 2(e) states:
(e) Failure to Pursue Appeal. Failure of the appellant to take any further steps to secure the review of the appealed conviction shall not affect the validity of the appeal but shall be grounds only for such action as the Supreme Court deems appropriate, which may include dismissal of the appeal. The Supreme Court may act upon and decide a case in which the notice of appeal was not given or the transcript of the trial record was not filed in the time prescribed, when a good reason for the omission is shown by affidavit. However, no motion *552for belated appeal shall be entertained by the Supreme Court unless application has been made to the Supreme Court within eighteen (18) months of the date of entry of judgment or entry of the order denying postconviction relief from which the appeal is taken. If no judgment of conviction was entered of record within ten (10) days of the date sentence was pronounced, application for belated appeal must be made within eighteen (18) months of the date sentence was pronounced. The court may equitably toll this 18-month deadline if the defendant has pursued his or her rights diligently and some extraordinary circumstance stood in his or her way.
Ark. R. App. P.-Crim. 2(e) (emphasis supplied). The majority has apparently latched onto the phrase "[t]he Supreme Court may act upon and decide a case in which the notice of appeal was not given or the transcript of the trial record was not filed in the time prescribed," without giving effect to the balance of the sentence that includes the clause "when a good reason for the omission is shown by affidavit." Accordingly, the sentence in its entirety is intended to allow this court to excuse what was previously regarded as a fatal defect in an appeal by an incarcerated person upon the establishment of a good reason for the omission.
It is troubling that the majority has construed Rule 2(e), which was intended to safeguard an incarcerated person's constitutional right to appeal, as authority for depriving that person of it.
I dissent.
Bryant notes in the petition that he entered into a negotiated plea agreement involving multiple other criminal charges in other cases, and those judgments are included in the record before us. However, the petition was filed in the single case, 60CR-00-365, in which Bryant entered his plea directly to the court.