Noble v. State

Cite as 2015 Ark. 141SUPREME COURT OF ARKANSAS
No. CR-93-427
SHERMAN D. NOBLE Opinion Delivered April 9, 2015
PETITIONER
PETITION TO REINVEST
V. JURISDICTION WITH THE
JEFFERSON COUNTY CIRCUIT
COURT [NO. CR-92-265-2]
STATE OF ARKANSAS
RESPONDENT PETITION DENIED.
JIM HANNAH, Chief Justice
Petitioner Sherman D. Noble filed in this court a petition to reinvest jurisdiction with
the Jefferson County Circuit Court to hold a hearing on his petition for writ of error coram
nobis. Noble argues that the circuit court erroneously dismissed his petition for lack of
jurisdiction. We deny Noble’s petition.
I. Facts
A brief history of this case was set forth in Noble v. Norris, 368 Ark. 69, 243 S.W.3d
260 (2006) (“Noble VIII”), as follows. In 1992, Noble and two other men attempted to steal
a BMW from a woman, Tresia Jester. As she drove off to avoid the robbery, she was shot and
killed by Noble. Subsequently, on Sunday, October 25, 1992, Noble entered a plea of guilty
to the crime of capital-felony murder to avoid the possibility of receiving a sentence of death.
As a result of the plea agreement, he was sentenced to life imprisonment without parole in
the Arkansas Department of Correction. On Monday, October 26, 1992, the circuit court
entered its judgment and commitment order. On November 6, 1992, Noble’s attorney,
Cite as 2015 Ark. 141Mark Hampton, filed a notice of appeal. We dismissed Noble’s direct appeal because he
failed to reserve his right to appeal, pursuant to Arkansas Rule of Criminal Procedure 24.3(b),
after entering a guilty plea. See Noble v. State, 314 Ark. 240, 862 S.W.2d 234 (1993) (“Noble
I”).
Since his direct appeal, Noble has been a party to numerous cases involving his guilty
plea. See Noble v. State, 319 Ark. 407, 892 S.W.2d 477 (1995) (“Noble II”) (holding Noble
was not entitled to postconviction relief based on his contention that he received ineffective
assistance of counsel at trial and on appeal); Noble v. State, 326 Ark. 462, 932 S.W.2d 752(1996) (per curiam) (“Noble III”) (holding that the issuance of a writ of mandamus would be
a vain and useless act, despite the fact that the circuit court erred in sua sponte dismissing the
appeal, because the notice of appeal was untimely); Noble v. State, 326 Ark. 912, 934 S.W.2d
525 (1996) (per curiam) (“Noble IV”) (allowing Noble to proceed with a belated appeal);
Noble v. State, CR 96-1442, 1998 WL 313723 (Ark. June 11, 1998) (unpublished per curiam)
(“Noble V”) (holding that Noble was not entitled to file a second petition for postconviction
relief under Rule 37 and, even if he was entitled to file, he could not have prevailed); Noble
v. Norris, 04-524, 2005 WL 3008676 (Ark. Nov. 10, 2005) (unpublished per curiam) (“Noble
VI”) (ordering rebriefing); Noble v. Norris, 04-524, 2005 WL 3436788 (Ark. Dec. 15, 2005)
(unpublished per curiam) (“Noble VII”) (granting Noble’s motion for extension of time);
Noble v. Norris, 368 Ark. 69, 243 S.W.3d 260 (2006) (“Noble VIII”) (affirming the circuit
court’s denial of the petition for writ of habeas corpus and rejecting Noble’s argument that
the circuit court was without subject-matter and statutory jurisdiction because of his guilty
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Cite as 2015 Ark. 141plea on a Sunday). Noble also was unsuccessful in seeking federal habeas relief. See Noble
v. Norris, H-C-99-98 (E.D. Ark. 1999).
On August 1, 2013, Noble filed another petition for postconviction relief in the
Jefferson County Circuit Court, and the State responded. On August 26, 2013, Noble asked
the circuit court to consider his Rule 37 petition as a petition for writ of error coram nobis.
In support of his petition, Noble filed an affidavit of Mark Hampton, his defense attorney at
trial, and his own affidavit. On October 18, 2013, the circuit court dismissed Noble’s
petition and ruled that it lacked jurisdiction because Noble had not provided any evidence
that the Arkansas Supreme Court had reinvested the circuit court with jurisdiction to
entertain his petition for writ of error coram nobis.
On June 6, 2014, Noble filed with this court a petition to reinvest jurisdiction with
the Jefferson County Circuit Court, alleging that (1) he was unaware at the time of his guilty
plea that his attorney had not received the consent of the prosecutor and the circuit court for
Noble to appeal the denial of his motion to suppress his statement; (2) he had been
incarcerated since his arrest and had relied on his attorneys to know the applicable law; and
(3) he was unaware that his plea was not voluntarily, knowingly, or intelligently made until
his present attorney advised him. The State responded that his claims are not cognizable
because he raised multiple ineffective-assistance-of-counsel claims in a coram-nobis
proceeding under the guise that his guilty plea was coerced. On June 26, 2014, we accepted
Noble’s petition to reinvest jurisdiction with the Jefferson County Circuit Court as a case
and now consider his petition.
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Cite as 2015 Ark. 141II. Jurisdiction
Noble argues that we should reinvest jurisdiction in the Jefferson County Circuit
Court to hold a hearing on his petition for writ of error coram nobis. Specifically, Noble
contends that his October 25, 1992 guilty plea was coerced and that the circuit court should
now hold a hearing to consider any evidence of coercion. The State responds that Noble
should have filed his petition for a writ of error coram nobis directly in the circuit court, and
that because he failed to do so, we should dismiss his petition. The State alternatively asserts
that this court should deny Noble’s petition to reinvest jurisdiction because the writ of error
coram nobis lies to correct a judgment by the court that rendered it. See State v. Hudspeth,
191 Ark. 963, 88 S.W.2d 858 (1935).
This court has articulated the rules for a writ of error coram nobis as follows:
A writ of error coram nobis is an extraordinarily rare remedy more
known for its denial than its approval. Mackey v. State, 2014 Ark. 491 (per
curiam). Coram-nobis proceedings are attended by a strong presumption that
the judgment of conviction is valid. Greene v. State, 2013 Ark. 251 (per
curiam). 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. Id.The petitioner has the burden of demonstrating a fundamental error of fact
extrinsic to the record. Burks v. State, 2013 Ark. 188 (per curiam).
The writ is allowed only under compelling circumstances to achieve
justice and to address errors of the most fundamental nature. Mackey, 2014 Ark.
491; Cromeans v. State, 2013 Ark. 273 (per curiam). 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. Wright v. State, 2014
Ark. 25 (per curiam); Greene, 2013 Ark. 251.
Rhoades v. State, 2015 Ark. 54, at 3–4 (per curiam).
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Cite as 2015 Ark. 141As a threshold, jurisdictional matter, we address whether Noble must petition this
court for leave to reinvest jurisdiction in the circuit court or whether the Jefferson County
Circuit Court had jurisdiction of his petition in the first instance. The general rule is that,
when a conviction was entered on a plea of guilty or nolo contendere or when the
conviction was not appealed, a petition for writ of error coram nobis is filed directly in the
trial court. Dansby v. State, 343 Ark. 635, 37 S.W.3d 599 (2001). However, this rule does
not apply when the record is filed with the appellate court. See Green v. State, 2015 Ark. 25(per curiam). In Green, appellant filed a petition for writ of error coram nobis in the circuit
court challenging a 2008 judgment reflecting his guilty pleas in three separate cases. The
circuit court denied the petition for the writ of error coram nobis, and appellant appealed the
court’s denial of the petition. We stated as follows:
A prisoner who appealed his judgment and who wishes to attack his
conviction by means of a petition for writ of error coram nobis must first request
that this court reinvest jurisdiction in the trial court because the filing of the transcript in
an appellate court deprives the trial court of jurisdiction. Maxwell v. State, 2012 Ark.
251 (per curiam). . . . 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. Mackey v. State, 2014 Ark. 491 (per curiam).
Green, 2015 Ark. 25, at 2 (emphasis added). Appellant Green did not appeal the 2008
judgment at issue; however, we considered Green’s appeal of the circuit court’s denial of his
error-coram-nobis petition and ultimately dismissed it.
In the present case, Noble, unlike appellant Green, filed a direct appeal in 1992 and
argued in Noble I, 314 Ark. 240, that the circuit court should have granted his motion to
suppress his in-custody statement made to the police. We dismissed the appeal on the basis
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Cite as 2015 Ark. 141that Noble did not condition his guilty plea by reserving in writing his right to appeal. Id.Years later, in 2013, Noble filed his petition for writ of error coram nobis with the Jefferson
County Circuit Court, and the circuit court dismissed the petition and ruled that “[t]he
petitioner has not provided any evidence that the Supreme Court has reinvested this [circuit]
court with jurisdiction to hear his petition for writ of error coram nobis.” As such, we agree
that the circuit court properly dismissed Noble’s petition for lack of jurisdiction, as two
important facts in this case pertain to this court’s jurisdiction. First, we dismissed Noble’s
direct appeal in Noble I, and throughout his subsequent appeals, the record for CR-93-427
remained on file in this court. Second, Noble’s record in this court deprived the circuit
court of jurisdiction to entertain Noble’s petition at the circuit-court level. Green, 2015 Ark.
25, ___ S.W.3d ___ (citing Maxwell, 2012 Ark. 251)). Thus, based on the facts specific to this
case, Noble must first ask this court to reinvest jurisdiction in the circuit court, as he has
done in the instant petition.
III. Merits
For purposes of determining whether to grant Noble leave to proceed in the circuit
court with his petition for writ of error coram nobis, this court must first determine whether
the allegations in the petition fall within one of the four categories of error that may be
addressed through coram-nobis proceedings. See Wright, 2014 Ark. 25. In his petition to
reinvest jurisdiction, Noble makes the same allegations that he made in his 2013 petition for
writ of error coram nobis. These allegations include ineffective-assistance claims directed
toward counsel’s representation of Noble, particularly counsel’s failure (1) to discuss with
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Cite as 2015 Ark. 141Noble the witnesses who would testify on his behalf; (2) to provide the State with a list of
defense witnesses; (3) to notify Noble of the plea minutes before the October 25, 1992
hearing on a Sunday afternoon; (4) to obtain the consent of the prosecutor and the court
prior to the conditional plea; (5) to tell Noble that his guilty plea could not be appealed; (6)
to obtain Noble’s consent to enter the plea; (7) to give Noble the false promise of an appeal
from his guilty plea; (8) to advise the State of witnesses regarding Noble’s alcohol abuse; (9)
to advise Noble that the prosecutor refused to give its consent to his appeal; (10) to advise
Noble that he would withdraw his appeal; (11) to advise Noble to appeal the court’s denial
of his motion to suppress; (12) to deprive Noble of the voluntariness of the plea because
counsel did not properly assert any known defenses; (13) to tell prosecutors that Noble’s plea
would be a conditional plea with the right to appeal the denial of his suppression motion; and
(14) to admit that counsel had done nothing to prepare for trial. Further, Noble alleged,
inter alia, that his Sunday-afternoon guilty plea was not made knowingly, voluntarily, and
intelligently because (1) he relied on counsel’s promise that he would be able to appeal his
guilty plea, and (2) “[counsel’s] unfamiliarity with the facts and law relevant to Noble’s case
made him so ineffective that Noble’s guilty plea was not knowingly, voluntarily, or
intelligently made.”
To the extent that Noble intends to raise allegations of ineffective assistance of
counsel, such allegations are not cognizable in a coram-nobis proceeding. Assertions of
inadequate counsel are properly brought pursuant to Arkansas Rule of Criminal Procedure
37.1. Schrader v. State, 2014 Ark. 379, 441 S.W.3d 1 (per curiam). We have consistently
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Cite as 2015 Ark. 141held that a petition for writ of error coram nobis is not a substitute for raising claims of
ineffective assistance of counsel under Rule 37.1. Mason v. State, 2014 Ark. 288, 436 S.W.3d
469 (per curiam). Although Noble attempts to couch these claims in terms of a coerced
guilty plea, they are in reality claims of ineffective assistance of counsel. Further, our review
of the petition reveals no substantiated claims that Noble’s guilty plea was coerced or that the
plea was the result of fear, duress, or threats of mob violence. See Weekly v. State, 2014 Ark.
365, 440 S.W.3d 341. Accordingly, because Noble’s claims do not fall within one of the
four recognized categories subject to coram-nobis relief, his petition to reinvest jurisdiction
with the Jefferson County Circuit Court is denied.
Petition denied.
BAKER , GOODSON , and HART, JJ., dissent.
KAREN R. BAKER, Justice, dissenting. Because this court never obtained
jurisdiction over Noble’s direct appeal, Noble does not need to petition this court to reinvest
jurisdiction with the trial court in order to pursue a writ of error coram nobis. Therefore, I
respectfully dissent from the majority’s holding that Noble must ask this court to reinvest
jurisdiction before pursuing error coram nobis relief in the trial court.
The majority correctly states the rule that a prisoner who appealed his judgment and
who wishes to attack his conviction by means of a petition for writ of error coram nobis must
first request that this court reinvest jurisdiction in the trial court because the filing of the
transcript in an appellate court deprives the trial court of jurisdiction. Green v. State, 2015
Ark. 25, at 2. This transcript rule, in my view, presupposes that the appellate court has
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Cite as 2015 Ark. 141jurisdiction over the appeal and the majority errs in applying that rule when this court lacked
appellate jurisdiction.1
In the present case, this court dismissed Noble’s direct appeal because he failed to
adhere to Arkansas Rule of Criminal Procedure 24.3(b), which permits a defendant to enter
a conditional guilty plea under certain circumstances.2 Noble v. State, 314 Ark. 240, 862
S.W.2d 234 (1993). In Tabor v. State, 326 Ark. 51, 930 S.W.2d 319 (1996), the court
concluded that a failure to comply strictly with the terms of Arkansas Rule of Criminal
Procedure 24.3(b) regarding conditional pleas of guilty precludes the appellate courts from
acquiring jurisdiction. Id. at 52, 930 S.W.2d at 320. In doing so, this court relied, in part,
on our opinion dismissing Noble’s direct appeal:
Appeals from guilty pleas are typically dismissed for lack of jurisdiction. Scalco v. City
of Russellville, supra. Rule 24.3(b) provides the only procedure for an appeal from a
guilty plea. Eckl v. State, supra. But if the express terms of Rule 24.3(b) are not
complied with, the appellate court acquires no jurisdiction to hear an appeal from a
conditional plea. Bilderback v. State, 319 Ark. 643, 893 S.W.2d 780 (1995); Scalco v.
1
This rule was first recognized in Robinson v. Arkansas Loan & Trust Co., 72 Ark. 475,
81 S.W. 609 (1904), in which this court stated:
When the appeal is granted and an authenticated copy of the record is filed in the
superior court, the suit or action is thereby removed. The filing of the copy of the
record is necessary, because it is the source from which the appellate tribunal obtains
its knowledge of the facts in the case and of the questions upon which it is its duty to
pronounce judgment. When it is filed, the appellate court’s jurisdiction of the subject-
matter is complete, and the cause is removed.
Id. at 477, 81 S.W. at 609. In Fletcher v. State, 198 Ark. 376, 128 S.W.2d 997 (1939), we
acknowledged that the same rule had been applied to criminal cases. Id. (citing Freeman v.
State, 158 Ark. 262, 249 S.W. 582, 250 S.W. 522).
2
Except as provided by Rule 24.3(b), there shall be no appeal from a plea of guilty or
nolo contendere. Ark. R. App. P.–Crim. 1(a).
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Cite as 2015 Ark. 141City of Russellville, supra; Noble v. State, 314 Ark. 240, 862 S.W.2d 234 (1993).
Accordingly, this court requires strict compliance with Rule 24.3(b) to convey
appellate jurisdiction. Burress v. State, 321 Ark. 329, 902 S.W.2d 225 (1995).
Tabor, 326 Ark. at 52, 930 S.W.2d at 320; see also Green v. State, 334 Ark. 484, 488, 978
S.W.2d 300, 302 (1998) (citing Noble v. State, 314 Ark. 240, 862 S.W.2d 234, among others,
for the proposition that strict compliance with Rule 24.3(b) is required in order for the
appellate court to obtain jurisdiction).
Since Noble’s direct appeal was dismissed for lack of jurisdiction, his present petition
for writ of error coram nobis is distinguishable from the authorities cited by the majority. In
Green, the prisoner failed to pursue a direct appeal from his guilty plea. Green, 2015 Ark. 25.
Therefore, his petition for writ of error coram nobis had to be filed in the trial court because
this court never obtained jurisdiction over Green’s case. In Maxwell, the prisoner’s judgment
was affirmed by this court on direct appeal. Maxwell, 2012 Ark. 251. Because we affirmed
Maxwell’s direct appeal, he had to request that this court reinvest jurisdiction in the trial court
in order to pursue a writ of error coram nobis. See State v. Hudspeth, 191 Ark. 963, 971, 88
S.W.2d 858, 861 (1935) (“[T]he better rule is that when a judgment has been affirmed by this
court no application for the writ of error coram nobis may be made to the trial court without
permission to make such application has been given by this court, and hereafter this rule will
be enforced.”) (emphasis added). However, Maxwell is simply not applicable to the present
situation because this court never obtained jurisdiction over Noble’s direct appeal from his
guilty plea. Moreover, the majority fails to cite any authority for the proposition that the
filing of the transcript for Noble’s interim collateral attacks—which were not cases directly
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Cite as 2015 Ark. 141reviewing his original guilty plea—established jurisdiction in this court for the purposes of his
error coram nobis petition. The essence of the writ of error coram nobis is that it is addressed
to the very court which renders the judgment where injustice is alleged to have been done,
rather than to an appellate or other court. Dansby v. State, 343 Ark. 635, 637, 37 S.W.3d 599,
600–01 (2001); see also Hudspeth, supra. Noble does not need to request that this court
reinvest jurisdiction in the trial court because this court has never had jurisdiction over any
appeal from his guilty plea.
Because this court never had jurisdiction over Noble’s direct appeal from his guilty
plea, he does not need to petition this court to reinvest jurisdiction in the circuit court to
pursue a writ of error coram nobis. The majority errs in allowing an act of the parties, the
act of filing the transcript, to determine which court has jurisdiction over Noble’s petition for
writ of error coram nobis. Based on this conclusion, I would not reach the merits of Noble’s
petition until the trial court has an opportunity to rule on those issues. I would dismiss
Noble’s petition to reinvest jurisdiction in the trial court as it is unnecessary since this court
never obtained appellate jurisdiction. Therefore, I dissent.
GOODSON and HART, JJ., join in this dissent.
Bill Luppen, for petitioner.
Dustin McDaniel, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., for respondent.
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