Watts v. State

• Citation: 2013 Ark. 485
• Decision Date: 21 November 2013
• Docket Number: No. CR-13-663,CR-13-663
• Parties: FRANK WATTS II APPELLANT v. STATE OF ARKANSAS APPELLEE
• Court: Supreme Court of Arkansas

2013 Ark. 485

FRANK WATTS II APPELLANT v. STATE OF ARKANSAS APPELLEE

No. CR-13-663

SUPREME COURT OF ARKANSAS

Opinion Delivered November 21, 2013

PRO SE MOTION FOR EXTENSION OF TIME TO FILE BRIEF

AND MOTION FOR USE OF TRANSCRIPT [PULASKI COUNTY CIRCUIT COURT, 60CR-97-2871, HON. WENDELL GRIFFEN, JUDGE]

APPEAL DISMISSED; MOTIONS MOOT.

PER CURIAM

In 1999, a jury found appellant Frank Watts II guilty of one count of possession of a controlled substance with intent to deliver (cocaine), one count of possession of drug paraphernalia, and one count of failure to keep records. He was sentenced as a habitual offender to an aggregate term of life imprisonment. No appeal was taken.¹

In 2012, appellant filed in the circuit court a pro se petition for writ of error coram nobis in which he alleged that the judgment violated the prohibition against double jeopardy, counsel failed to subpoena witnesses who had executed documents exonerating him, he was denied the right to a speedy trial, he was denied the right to conduct his own defense and had ineffective assistance of counsel, and his constitutional rights were violated when he was not given a copy of his trial transcript. The circuit court denied the petition, and appellant lodged an appeal from that order. Now before us are appellant's pro se motions for extension of time to file his briefand for use of transcript.

We need not address the merits of the motions because it is clear from the record that appellant could not prevail on appeal if the appeal were permitted to go forward. 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). Accordingly, the appeal is dismissed, and the motions are moot.

A 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); Howard v. State, 2012 Ark. 177, ___ S.W.3d ___. The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. McDaniels v. State, 2012 Ark. 465 (per curiam). We have held that a writ of error coram nobis is available to address certain errors that are found in one of four categories: insanity at the time of trial, a coerced guilty plea, material evidence withheld by the prosecutor, or a third-party confession to the crime during the time between conviction and appeal. Cromeans, 2013 Ark. 273; Pitts v. State, 336 Ark. 580, 583, 986 S.W.2d 407, 409 (1999) (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 judgment. McFerrin v. State, 2012 Ark. 305 (per curiam); Cloird v. State, 2011 Ark. 303 (per curiam). To warrant a writ, a petitioner has the burden of bringing forth some fact, extrinsic to the record, that was not known at the time of trial. Martin v. State,2012 Ark. 44 (per curiam). Coram-nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Roberts v. State, 2013 Ark. 56, ___ S.W.3d ___; Carter v. State, 2012 Ark. 186 (per curiam); Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984) (citing Troglin v. State, 257 Ark. 644, 519 S.W.2d 740 (1975)). 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. McClure v. State, 2013 Ark. 306 (per curiam).

As grounds for the writ, appellant first contended in his petition that the 1999 judgment violated the prohibition against double jeopardy because the charges had been joined with charges in a case previously concluded.² In 1997, appellant had been found guilty by a jury of possession of a controlled substance with intent to deliver, two counts of possession of drug paraphernalia, and possession of a controlled substance.³ He was sentenced as a habitual offender to an aggregate sentence of sixty years' imprisonment. The Arkansas Court of Appeals affirmed. Watts v. State, 68 Ark. App. 47, 8 S.W.3d 563 (2000).

Double-jeopardy claims do not fall within any of the four categories of recognized claims, and appellant has not provided a demonstration of any error concerning facts that were notknown at the time of trial or that were not included in the record pertaining to that claim. See Hoover v. State, 2012 Ark. 136 (per curiam). Moreover, we have previously addressed this same issue in appellant's previous appeal of the denial of a motion to vacate his 1999 conviction and sentence based on a double-jeopardy claim. Granting appellant's motion to dismiss the appeal, we did so with prejudice because the application for relief was untimely. We also noted that the 1999 judgment did not violate the prohibition against double jeopardy because the 1997 and 1999 judgments indicate convictions for different offenses occurring on different dates. Watts v. State, CR-08-1280 (Ark. Jan. 30, 2009) (unpublished per curiam). We again addressed the effect of any joinder of offenses in Watts v. State, 2013 Ark. 318 (per curiam) in an appeal of the dismissal of a petition for writ of habeas corpus. In response to appellant's claim that double jeopardy attached at the 1997 trial rendering the 1999 judgment a nullity, we held that if appellant was raising a double-jeopardy claim, it was without merit. Appellant also argued in that case that the trial court lacked subject-matter jurisdiction to enter the 1999 judgment because the court had granted appellant's motion for joinder of offenses in the 1997 trial. We held that appellant offered nothing to establish that, at the time of the 1999 conviction, the trial court did not have personal jurisdiction over him, jurisdiction over the subject matter, or the authority to render the particular judgment. Id.

Appellant's second ground for issuance of the writ was that counsel's failure to subpoena certain defense witnesses who had executed documents exonerating him, along with the intentional delay of his trial, resulted in the witnesses disappearing or relocating to an unknown address. Without providing any factual support, appellant claimed that the trial was delayed dueto the "buddying" relationship between counsel and the prosecuting attorney. These allegations amount to a claim of ineffective assistance of counsel, which is outside the purview of a coram-nobis proceeding. See Hall v. State, 2013 Ark. 404 (per curiam). To the extent that appellant alleged that the prosecuting attorney, with the assistance of counsel, withheld or suppressed documents executed by these witnesses, he has failed to state a violation of Brady v. Maryland, 373 U.S. 83 (1963). This court has previously recognized that a writ of error coram nobis was available to address errors pertaining to material evidence withheld by the prosecutor. Cromeans, 2013 Ark. 273; Burks v. State, 2013 Ark. 188 (per curiam). There are three elements of a 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; (3) prejudice must have ensued. Cromeans, 2013 Ark. 273; Burks, 2013 Ark. 188. In his petition, appellant admitted that he received the documents while in jail and forwarded them to the prosecuting attorney's office and that the documents were introduced as evidence during an omnibus hearing. Accordingly, appellant did not show that the evidence was withheld...