McClure v. State

Cite as 2013 Ark. 306SUPREME COURT OF ARKANSAS
No. CR-11-821
Opinion Delivered September 5, 2013
RONALD A. McCLURE PRO SE APPEAL FROM THE
APPELLANT PULASKI COUNTY CIRCUIT
COURT, 60CR-01-638, HON.
v. WENDELL GRIFFEN, JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED.
PER CURIAM
In 2001, appellant Ronald A. McClure entered a negotiated plea of guilty to first-
degree murder. He was sentenced to 540 months’ imprisonment. In 2010, appellant filed in
the circuit court a pro se petition for writ of error coram nobis alleging that, because of trial
counsels’ failure to investigate and failure to properly advise him of the plea bargain and its
effects, he felt coerced to enter the guilty plea. The circuit court denied appellant’s request
for relief on the grounds that appellant did not act with due diligence in filing the petition
nine years after judgment was entered and that appellant failed to prove the existence of some
extrinsic fact not known at trial that would have prevented entry of the judgment. Appellant
now brings this appeal.
The standard of review of a denial of a petition for writ of error coram nobis is
whether the circuit court abused its discretion in denying the writ. Lee v. State, 2012 Ark.
401 (per curiam). An abuse of discretion occurs when the circuit court acts arbitrarily or
groundlessly. Id.Cite as 2013 Ark. 306A writ of error coram nobis is an extraordinarily rare remedy more known for its denial
than its approval. Cromeans v. State, 2013 Ark. 273 (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 circuit 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. Cromeans, 2013 Ark. 273. We have held that
a writ of error coram nobis is available to address 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. Greene, 2013 Ark. 251.
On appeal, appellant asserts that his guilty plea was coerced by the “use of force and
threats,” that the prosecution withheld material, exculpatory evidence, that he was denied the
right to a trial by jury, and that he was denied the right to counsel of his choice. At the
outset, we decline to address appellant’s arguments concerning evidence withheld by the
prosecution in violation of Brady v. Maryland, 373 U.S. 83 (1963), denial of appellant’s right
to a trial by jury, and denial of appellant’s right to counsel of his choice, as appellant failed to
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Cite as 2013 Ark. 306preserve those issues for appellate review. In his petition for the writ, appellant’s only ground
in support of issuance of the writ was that his guilty plea had been coerced. Issues raised for
the first time on appeal, even constitutional ones, will not be considered on appeal. White v.
State, 2012 Ark. 221, ___ S.W.3d ___.
We further note that appellant’s argument on appeal does not present facts sufficient
to support a Brady violation. In order to establish a Brady violation, petitioner must establish
that evidence was suppressed by the State, either willfully or inadvertently. Sparks v. State,
2012 Ark. 464 (per curiam) (citing Smith v. State, 2012 Ark. 403 (per curiam)). Where a
petitioner offers nothing to show that information was concealed from the defense, and the
issue could have been determined with certainty at the time of trial, the petitioner has not
demonstrated a Brady violation that warrants issuance of a writ of error coram nobis. Id.Here, appellant acknowledges in his brief-in-chief that the information, which he contends
was withheld by the prosecution, was received by the defense one month prior to trial.
Where the defense was aware of the facts at the time of trial, those facts are not sufficient to
support grounds for the issuance of the writ. Jackson v. State, 2010 Ark. 81 (per curiam).
Turning to appellant’s remaining argument on appeal regarding a coerced guilty plea,
we cannot say that the circuit court abused its discretion in denying the writ on this point.
In his petition for the writ, appellant alleged that he felt coerced to enter into a plea bargain
due to his counsels’ failure to investigate and to properly advise him of the plea bargain and
its effects; however, appellant makes no argument on appeal regarding this particular claim.
As such, appellant has abandoned the arguments on appeal. Issues raised below but not argued
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Cite as 2013 Ark. 306on appeal are abandoned. James v. State, 2013 Ark. 290 (per curiam). Moreover, to the
extent that the allegations made below in support of the writ were predicated on ineffective-
assistance-of-counsel claims, such claims are not cognizable in error-coram-nobis proceedings.
Cromeans, 2013 Ark. 273 (Allegations of ineffective assistance of counsel are outside the
purview of coram-nobis proceedings.); State v. Tejeda-Acosta, 2013 Ark. 217, ___ S.W.3d ___
(Error-coram-nobis proceedings are not to be used as a substitute for Rule 37 proceedings,
such as claims of ineffective assistance of counsel.).
While appellant has abandoned his claims that he was coerced to enter a guilty plea due
to counsels’ ineffectiveness, he asserts a new claim on appeal that the prosecution coerced his
guilty plea by use of force and threats. Specifically, he asserts that the prosecution threatened
to seek a sentence of life imprisonment if he did not enter the proposed plea bargain.
Notwithstanding appellant’s failure to preserve this argument for appellate review, see White,
2012 Ark. 221, ___ S.W.3d ___, appellant’s claims do not rise to the level of coercion
required to demonstrate that a writ of error coram nobis should issue. See Pierce v. State, 2009
Ark. 606 (per curiam) (denial of writ of error coram nobis affirmed where appellant alleged
that guilty plea was coerced on grounds that he was threatened with a greater sentence).
Finally, although there is no specific time limit for seeking a writ of error coram nobis,
due diligence is required in making an application for relief. Burks, 2013 Ark. 188. Due
diligence requires that (1) the defendant be unaware of the fact at the time of the trial; (2) the
defendant could not have, in the exercise of due diligence, presented the fact at trial; and (3)
the defendant, after discovering the fact, did not delay in bringing the petition. Id. Here,
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Cite as 2013 Ark. 306appellant waited nine years to request issuance of the writ and asserted claims in support of
his request that were known to him at the time of trial. Even if appellant had asserted a
ground sufficient to support issuance of the writ, his failure to act with due diligence, alone,
would constitute good cause to deny the petition. Id.Affirmed.
Ronald A. McClure, pro se appellant.
Dustin McDaniel, Att’y Gen., by: Laura Shue, Ass’t Att’y Gen., for appellee.
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