Ward v. State

• Decision Date: 03 December 2020
• Docket Number: No. CR-20-197,CR-20-197
• Citation: 611 S.W.3d 182,2020 Ark. 386
• Parties: Dusten Blake WARD, Appellant v. STATE of Arkansas, Appellee
• Court: Arkansas Supreme Court

2020 Ark. 386

611 S.W.3d 182

Dusten Blake WARD, Appellant

v.STATE of Arkansas, Appellee

No. CR-20-197

Supreme Court of Arkansas.

Opinion Delivered December 3, 2020

Dusten Ward, pro se appellant.

Leslie Rutledge, Att'y Gen., by: Rebecca Kane, Ass't Att'y Gen., for appellee.

JOHN DAN KEMP, Chief Justice

Appellant Dusten Blake Ward appeals the Benton County Circuit Court's order denying his pro se petition for writ of error coram nobis. He has also filed motions to supplement his brief and reinvest jurisdiction in the circuit court. In the petition filed below, Ward primarily alleged that his plea was coerced in that his counsel colluded with the prosecution to mislead him regarding the length of the sentences imposed for the offenses to which he pleaded guilty. The circuit court denied the petition, finding that it represented an untimely petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2019). We deny Ward's motions and affirm the circuit court's denial of his petition for writ of error coram nobis.

I. Motions

We first address Ward's motions. Ward filed his brief-in-chief on April 30, 2020, and the State filed its brief on June 4, 2020. Ward's reply brief was due fifteen days later, on June 19. On October 8, Ward attempted to file an untimely motion for extension to file a reply brief, which was returned to him. On October 20, Ward filed the pending motion to file a supplemental brief asking this court to allow him to file a substituted brief-in-chief that would expand on an issue that Ward admits he had failed to fully explain in his argument on appeal. Ward attached to his motion a substituted brief that has been tendered to this court.¹ Ward's motion to supplement his brief is untimely and is denied. Martz v. Felts , 2019 Ark. 297, 585 S.W.3d 675.

On November 17, Ward filed a motion to reinvest jurisdiction in the trial court in which he asks this court to remand the matter to the trial court so that he could raise and develop the issue of "withheld evidence" there.² Ward's motion to reinvest jurisdiction in the trial court to raise an issue that was not properly raised or considered by that court is likewise denied.

II. Facts

In 2018, Ward entered a negotiated plea of guilty to second-degree battery, aggravated assault on a household member, and aggravated cruelty to a dog. At the same time, Ward also pleaded guilty to violating the terms of his probation in connection with his convictions in 2013 for two counts of possession of a controlled substance with intent to deliver and three counts of possession of drug paraphernalia. Ward was sentenced to an aggregate term of 300 months’ imprisonment followed by a 180-month suspended imposition of sentence.

III. Writ of Error Coram Nobis

The standard of review for an order on a petition for writ of error coram nobis is abuse of discretion in granting or denying the writ. Pitts v. State , 2020 Ark. 7, 591 S.W.3d 786. An abuse of discretion occurs when the circuit court acts arbitrarily or groundlessly. Id. There is no abuse of discretion in the denial of error coram nobis relief when the claims in the petition were groundless. Osburn v. State , 2018 Ark. 341, 560 S.W.3d 774.

A writ of error coram nobis is an extraordinarily rare remedy. State v. Larimore , 341 Ark. 397, 17 S.W.3d 87 (2000). 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 that, through no negligence or fault of the defendant, was not brought forward before rendition of the judgment. Newman v. State , 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. Dednam v. State , 2019 Ark. 8, 564 S.W.3d 259. 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. Howard v. State , 2012 Ark. 177, 403 S.W.3d 38. Error coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Nelson v. State , 2014 Ark. 91, 431 S.W.3d 852.

IV. Claims for Coram Nobis Relief

Ward contended in his coram nobis petition filed in the circuit court—and reiterates his arguments on appeal—that his counsel conspired with the prosecutor to mislead Ward with respect to the sentences for the offenses to which he agreed to plead guilty and that his trial counsel acted in bad faith. According to Ward, he was misled into believing that the sentences imposed after he pleaded guilty would correspond to the presumptive sentences for those offenses. Ward points to the sentencing order that reflects an upward departure from the presumptive sentence for each offense. Ward further alleges that his counsel allowed the prosecutor to use invalid aggravating factors to increase his sentences, including his previous convictions for felony offenses. Ward alleges that due to the errors of counsel, his plea was not knowingly and voluntarily made. Finally, Ward argues on appeal that the circuit court erred by treating his coram nobis petition as a Rule 37.1 petition.

To prevail on a claim that a writ of error coram nobis is warranted because a plea was coerced, the petitioner bears the burden of establishing that the plea was the result of fear, duress, or threats of mob violence as previously recognized by this court as grounds for a finding of coercion. Hall v. State , 2018 Ark. 319, 558 S.W.3d 867. Ward offers no evidence that his plea was the result of duress or threats of mob violence.

A petitioner's allegation that he or she was under duress when the plea of guilty was entered by virtue of improvident advice from counsel constitutes an allegation of ineffective assistance of counsel with the underlying claim that the plea was not entered intelligently and voluntarily because of the advice provided by counsel. Pugh v. State , 2019 Ark. 319, 587 S.W.3d 198. Poor legal advice from counsel does not constitute a fundamental error of fact extrinsic to the record that warrants issuance of the writ. Id. Error coram nobis proceedings are not a substitute for proceeding under Rule 37.1 to challenge the validity of a guilty plea, nor are the two proceedings interchangeable. Nelson , 2014 Ark. 91, 431 S.W.3d 852. The allegations raised by Ward with respect to the voluntary nature of his guilty plea can only be brought pursuant to Arkansas Rule of Criminal Procedure 37.1, not in a petition for writ of error coram nobis. Griffin v. State , 2018 Ark. 10, 535 S.W.3d 261.

The circuit court's ruling that Ward's allegations should have been raised in a timely petition under Rule 37.1 is a correct statement of law. Jefferson v. State , 2019 Ark. 408, 591...