Evans v. State, 2010 Ark. 234 (Ark. 5/13/2010)

• Decision Date: 13 May 2010
• Docket Number: 09-613.
• Citation: 2010 Ark. 234
• Parties: Timothy Gene EVANS, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

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2010 Ark. 234

Timothy Gene EVANS, Appellant, v. STATE of Arkansas, Appellee.

09-613.

Supreme Court of Arkansas.

Opinion Delivered May 13, 2010.

Pro Se Motion for Leave to File Belated Reply Brief [Circuit Court of Izard County, CV 2008-158, Hon. John Adam Harkey, Judge].

Appeal Dismissed; Motion Moot.

PER CURIAM.

Appellant Timothy Gene Evans was found guilty of rape by a jury in Carroll County, Arkansas, for which he was sentenced to forty years' imprisonment in the Arkansas Department of Correction. We affirmed. Evans v. State, 326 Ark. 279, 931 S.W.2d 136 (1996). Appellant subsequently filed in the circuit court in the county in which he was incarcerated a petition for writ of habeas corpus, pursuant to Arkansas Code Annotated §§ 16-112-101 to -123 (Repl. 2006), alleging that the court where appellant was originally convicted lacked "geographic" jurisdiction, which entitled appellant to a hearing on the petition or dismissal of his conviction. The trial court denied appellant's petition on March 18, 2009, without holding an evidentiary hearing, and appellant timely filed an appeal from the trial court's order. Now before us is appellant's motion for leave to file a belated reply brief.¹ Because appellant could not prevail on his petition, we dismiss the appeal, and the motion is accordingly moot.

An appeal of the denial of postconviction relief, including an appeal from an order denying a petition for writ of habeas corpus, will not be permitted to go forward where it is clear that the appellant could not prevail. Grissom v. State, 2009 Ark. 557 (per curiam). Therefore, the sole question presented is whether appellant has established that the trial court lacked jurisdiction or that the commitment was invalid on its face; otherwise, there is no basis for a finding that a writ of habeas corpus should issue. See Grissom, 2009 Ark. 557; Young v. Norris, 365 Ark. 219, 226 S.W.3d 797 (2006) (per curiam). To meet this burden, appellant must plead either the facial invalidity or the lack of jurisdiction and make a "showing by affidavit or other evidence [of] probable cause to believe" that he is illegally detained. Young, 369 Ark. at 221, 226 S.W.3d at 798-99.

As an initial matter, we note that the felony information charging appellant was filed in Carroll County, and it alleged that the crime had occurred within Carroll County in the area of the Enon Bridge.² The abstracted testimony proffered with appellant's petition shows that, at the close of the State's case-in-chief, appellant's trial counsel moved for a directed verdict based on the State's failure to establish with absolute certainty where the rape occurred. The State then presented rebuttal testimony from Officer J.R. Ashlock of the Carroll County Sheriff's Department, who stated that, in his opinion, the crime clearly (2009), and our clerk correctly refused to file it for that reason occurred within Carroll County. Trial counsel then asked the officer to draw a circle on a state map of the area where the crime occurred, which Officer Ashlock did. Regarding this circle and the map generally, the trial court stated that, "[a]lthough the circle that [Officer Ashlock] has drawn here is within what's been designated as Carroll County, we really don't have any foundation for the accuracy of this map so far as county lines are concerned." No other evidence was presented by trial counsel that would establish that the crime occurred outside of Carroll County, and the trial court denied appellant's motion for directed verdict.

Appellant's petition for writ of habeas corpus was based solely on his assertion that the court in which he was convicted lacked "geographic" jurisdiction under section Arkansas Code Annotated § 16-88-105(b) (Repl. 2005) because the State never "established as a fact certain" that the crime occurred in Carroll County. Appellant further alleged that the crime might possibly have occurred in Boone County,³ which Carroll County borders, and he asserted that "irrefutable evidence that Carroll County failed to establish jurisdiction can be shown at an evidentiary hearing." However, there is no affidavit attached to the petition that would support these claims, nor does appellant proffer "other evidence" in support thereof. He merely asserts the existence of some unspecified "irrefutable evidence." Moreover, the abstracted testimony shows that at no time during his questioning of Officer Ashlock or in his oral motion for directed verdict did trial counsel even mention Boone County. He only asserted that the officer could not "tell this jury with any definite certainty that this point [on the map] is within Carroll County."

Appellant's contention that it was "only presumed" that the crime occurred in Carroll County, and that the State was required to irrefutably prove the location of the crime in order to establish jurisdiction is without merit. The State is not required to prove jurisdiction or venue unless evidence is admitted that affirmatively shows that the court lacks jurisdiction or venue. Mackey v. Lockhart, 307 Ark. 321, 323, 819 S.W.2d 702, 704 (1991) (quoting Ark. Code Ann. § 5-1-111(b) (1987)). Appellant failed to proffer any such evidence. Assuming arguendo that...