Bannister v. State

• Decision Date: 06 February 2014
• Docket Number: No. CR-13-761,CR-13-761
• Citation: 2014 Ark. 59
• Parties: ROBERT E. BANNISTER PETITIONER v. STATE OF ARKANSAS RESPONDENT
• Court: Arkansas Supreme Court

2014 Ark. 59

ROBERT E. BANNISTER PETITIONER v. STATE OF ARKANSAS RESPONDENT

No. CR-13-761

SUPREME COURT OF ARKANSAS

Opinion Delivered February 6, 2014

PRO SE MOTION FOR BELATED

APPEAL OF ORDER [WASHINGTON

COUNTY CIRCUIT COURT, 72CR-11-

902]

MOTION DENIED.

PER CURIAM

In 2011, petitioner Robert E. Bannister entered a plea of guilty to two counts of second-degree sexual assault. He was sentenced to an aggregate term of 240 months' imprisonment.

In 2013, petitioner filed in the trial court a pro se petition for writ of error coram nobis in which he alleged that the judgment should be vacated on the grounds that his guilty plea was coerced and that there was newly discovered evidence that warranted issuance of the writ. The trial court denied and dismissed the petition. No appeal was taken, and petitioner now seeks leave to proceed with a belated appeal of the order.

As it is clear from the record that petitioner could not prevail on appeal if the appeal were permitted to go forward, the motion is denied. See Crain v. State, 2012 Ark. 412 (per curiam); see also Bates v. State, 2012 Ark. 394 (per curiam). An appeal from an order that denied a petition for postconviction relief, including a petition for writ of error coram nobis, will not be permitted to go forward where it is clear that the appellant could not prevail. Morgan v. State, 2013 Ark. 341 (per curiam); Davis v. State, 2012 Ark. 228 (per curiam).

The standard of review of a denial of a petition for writ of error coram nobis is whetherthe circuit court abused its discretion in denying the writ. Morgan, 2013 Ark. 341; Lee v. State, 2012 Ark. 401 (per curiam); Carter v. State, 2012 Ark. 186 (per curiam); Benton v. State, 2011 Ark. 211 (per curiam); Pierce v. State, 2009 Ark. 606 (per curiam). An abuse of discretion occurs when the circuit court acts arbitrarily or groundlessly. Lee, 2012 Ark. 401 (citing Estrada v. State, 2011 Ark. 479 (per curiam)). There can be no abuse of discretion in the denial of error coram nobis relief where the claims in the petition did not provide a basis to support issuance of the writ. See Benton, 2011 Ark. 211.

A writ of error coram nobis is an extraordinarily rare remedy, more known for its denial than its approval. Edwards v. State, 2013 Ark. 517 (per curiam); Larimore v. State, 341 Ark. 397, 17 S.W.3d 87 (2000). The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Pitts v. State, 336 Ark. 580, 986 S.W.2d 407 (1999) (per curiam). We have held that a writ of error coram nobis was available to address errors found in one of four categories: insanity at the time of trial, a coerced guilty plea, material evidence withheld by the prosecutor, a third-party confession to the crime during the time between conviction and appeal. Sanders v. State, 374 Ark. 70, 285 S.W.3d 630 (2008) (per curiam).

The function of the writ is to secure relief from a judgment rendered while there existed some fact, which 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 judgment. Cloird v. State, 357 Ark. 446, 182 S.W.3d 477 (2004). A writ of error coram nobis is appropriate when an issue was not addressed or could not have been addressedat trial because it was somehow hidden or unknown. Larimore v. State, 327 Ark. 271, 938 S.W.2d 818 (1997). For the writ to issue following the affirmance of a conviction, the petitioner must show a fundamental error of fact extrinsic to the record. Thomas v. State, 367 Ark. 478, 241 S.W.3d 247 (2006) (per curiam). Looking to the petition filed in the trial court and not to any new claims or arguments raised in the motion for belated appeal, we find that petitioner asserted no issue that was hidden or unknown or any error of fact extrinsic to the record, and he did not demonstrate that there was an error in the proceedings against him that would warrant the writ.

Petitioner's grounds for the writ combined the claim that his guilty plea was coerced with the claim that the prosecution withheld evidence from the defense. The coercion was alleged to have begun when petitioner initially met with the police concerning the allegation that he had engaged in sexual contact with a minor. He alleged that he agreed to go to the police station after it was closed for the day and was told that he could terminate questioning at any time and that the door would be unlocked if he wished to leave. When the questioning turned from mere misdemeanor sexual contact to sexual assault, petitioner asserted that he asked for an attorney and asked to stop the questioning. He contended that he was then shown a pair of handcuffs and told that he would be placed under arrest if he requested counsel. His wife and children were then allowed to join him in the interrogation room, and his wife attempted to contact a lawyer but was unable to do so. Petitioner was shown a large paper bag that he was told contained evidence; he was not shown the evidence but was shown a photocopied document containing pictures of the crime scene and pictures of the evidence said to be in the paper bag. Even though his family was allowed to join him and his wife was allowed to attempt to contactan attorney, petitioner argued that he was nevertheless coerced into pleading guilty by virtue of the manipulative techniques used by the interrogator. Those techniques included mocking his religion, forcing him to pray with the investigator, asking misleading questions, questioning him about his sexual relationship with his wife, making references to petitioner's father's criminal record, accusing petitioner's father of having molested petitioner, not taping the questioning, threatening petitioner with additional charges in another county, and compelling him to write out a second statement admitting to experiencing sexual gratification from touching the minor's buttocks and feeling remorse for touching the minor. Even if those techniques were a violation of some constitutional right, petitioner could have declined to enter a plea of guilty and challenged at trial any evidence adduced through the techniques. By pleading guilty, he admitted to the offenses charged and abandoned a challenge to the evidence obtained during the interrogation. See Wells v. State, 2012 Ark. 308 (per curiam).

Except for the allegation that the investigator grabbed his wrist, petitioner did not claim physical abuse or threats of physical abuse, prolonged isolation, sleep deprivation, or prolonged denial of food or drink or otherwise assert that other such abusive tactics were employed to coerce a confession. Petitioner did not claim that his plea was coerced in the sense that it was the result of fear, duress, or threats of mob violence as previously recognized by this court as cognizable in coram-nobis relief. See, e.g., Hardwick v. State, 220 Ark. 464, 248 S.W.2d 377 (1952). While there could be little doubt that petitioner felt considerable emotional pressure during the interrogation, he did not contend that there was a specific act that rendered him unable to make a voluntary, intelligent decision to enter a plea of guilty, and he failed to offer any substantiationthat he was subjected to any specific mistreatment. See Pierce v. State, 2009 Ark. 606 (per curiam). That is, he did not argue that he was somehow coerced into appearing before the court and entering his plea. Petitioner could have made his attorney aware of every aspect of the interrogation and opted to stand trial rather than entering a plea. Petitioner's claims did not...