Bond v. State

• Citation: 477 S.W.3d 508
• Decision Date: 10 December 2015
• Docket Number: No. CR–09–549,CR–09–549
• Parties: Kelton Bond, Petitioner, v. State of Arkansas, Respondent.
• Court: Arkansas Supreme Court

477 S.W.3d 508

Kelton Bond, Petitioner,
v.
State of Arkansas, Respondent.

No. CR–09–549

Supreme Court of Arkansas.

Opinion Delivered December 10, 2015

PER CURIAM

In 2008, petitioner Kelton Bond was convicted by a jury of multiple drug-related offenses and sentenced to an aggregate term of 115 years' imprisonment.¹ The Arkansas Court of Appeals affirmed. Bond v. State, 2010 Ark. App. 664, 2010 WL 3934599. Bond subsequently filed in the trial court a petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2008). The petition was denied, and we affirmed the order. Bond v. State, 2013 Ark. 298, 429 S.W.3d 185 (per curiam).

Now before us is Bond's pro se petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis. 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. Newman v. State, 2009 Ark. 539, 354 S.W.3d 61. A writ of error coram nobis is

477 S.W.3d 510

an extraordinarily rare remedy. State v. Larimore, 341 Ark. 397, 17 S.W.3d 87 (2000). Coram-nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Id. 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. Newman, 2009 Ark. 539, 354 S.W.3d 61. The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Roberts v. State, 2013 Ark. 56, 425 S.W.3d 771.

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. Howard v. State, 2012 Ark. 177, 403 S.W.3d 38.

Bond has included with his petition for leave to proceed in the trial court the petition that he intends to file there if granted permission to do so. Even if that petition is considered in the interest of judicial economy as part of the petition before us, we find no ground to warrant the writ. See Fudge v. State, 2015 Ark. 230, at ¶ 4, 463 S.W.3d 292, 295 (per curiam) (The petition to be filed in the trial court, if leave were granted by this court to proceed with a coram-nobis petition, was considered in determining whether cause for the writ had been established by the petitioner.).

As grounds for the writ, Bond first contends that the State violated the provisions of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) by obtaining his conviction through use of perjured testimony and false evidence. He alleges that the investigators in his case planted evidence at his home and then lied at his trial to cover up their misdeed. Bond argues that the State, by deliberately fabricating evidence, violated his right to due process of law under Brady and related legal precedent.

A Brady violation is established when material evidence favorable to the defense is wrongfully withheld by the State. Isom v. State, 2015 Ark. 225, 462 S.W.3d 662. In Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999), the Supreme Court revisited Brady and declared that, when the petitioner contends that material evidence was not disclosed to the defense, the petitioner must show that "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Strickler, 527 U.S. at 280, 119 S.Ct. 1936 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) ). In Strickler, the Court also set out the three elements of a true 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; and (3) prejudice must have...