Whitham v. State Of Ark.

• Decision Date: 27 January 2011
• Docket Number: No. CR 09-321,CR 09-321
• Citation: 2011 Ark. 28
• Parties: DAVID CRAIG WHITHAM, Petitioner v. STATE OF ARKANSAS, Respondent
• Court: Arkansas Supreme Court

2011 Ark. 28

DAVID CRAIG WHITHAM, Petitioner

v.STATE OF ARKANSAS, Respondent

No. CR 09-321

SUPREME COURT OF ARKANSAS

Opinion Delivered January 27, 2011

PRO SE PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT TO CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS [FAULKNER COUNTY CIRCUIT COURT, CR 2007-2285]

PETITION DENIED.

PER CURIAM

In 2008, petitioner David Craig Whitham was found guilty of rape and sentenced to life imprisonment. We affirmed. Whitham v. State, 2009 Ark. 477.

Now before us is petitioner's pro se petition requesting that this court reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis.¹ The petition for leave to proceed in the trial court is necessary because the circuit court can entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal only after we grant permission. Fudge v. State, 2010 Ark. 426 (per curiam); Grant v. State, 2010 Ark. 286, ___ S.W.3d ___ (per curiam) (citing Newman v. State, 2009 Ark. 539, ___ S.W.3d ___); see also Dansby v. State, 343 Ark. 635, 37 S.W.3d 599 (2001) (per curiam).

A writ of error coram nobis is an extraordinarily rare remedy, more known for its denial than its approval. Fudge, 2010 Ark. 426 (per curiam); Barker v. State, 2010 Ark. 354, ___ S.W.3d ___; 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 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. Pitts, 336 Ark. at 583, 986 S.W.2d at 409. Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Barker, 2010 Ark. 354; Echols v. State, 360 Ark. 332, 201 S.W.3d 890 (2005). 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. Grant, 2010 Ark. 286 (citing Newman, 2009 Ark. 539); see also Sanders v. State, 374 Ark. 70, 285 S.W.3d 630 (2008) (per curiam).

Petitioner alleges that he is entitled to issuance of the writ on the ground that he was not competent at the time of trial, and his "mental capacity and culpability" were not determined prior to trial even though the very nature of the offense charged would lead menof reasonable mind to question his sanity. He further contends that he was innocent and mentally confused and emotionally devastated by the charge against him. He argues that the court was legally obliged to determine his fitness to proceed to trial inasmuch as his symptoms of mental disease or defect were blatant, but he also contends that the "defense of mental disease or defect was an issue not addressed at trial because it was hidden or unknown." Petitioner moreover asserts that the punishment imposed was a direct result of passion or prejudice and that he was entitled to be tried by an impartial trial judge.

The sole claim that, if proven, could be a basis for granting a writ of error coram nobis is the assertion that petitioner was not competent at the time of trial. The claim is entirely unsupported by factual substantiation from which it could be determined that petitioner was insane at the time of trial.

This court will grant permission to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis only when it appears the proposed attack on the judgment is meritorious. Echols v. State, 354 Ark. 414, 125 S.W.3d 153 (2003). In making that determination, we look to the reasonableness of the allegations and to the existence of the probability of the truth of those allegations. Id.

A criminal defendant is presumed to be competent to stand trial and has the burden of proving otherwise. Thessing v. State, 365 Ark. 384, ...