Corelanius Phillips v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

OCTOBER 18, 2000

CORELANIUS PHILLIPS

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 93-642

PRO SE PETITION FOR LEAVE TO PROCEED IN CIRCUIT COURT WITH PETITION FOR WRIT OF ERROR CORAM NOBIS [CIRCUIT COURT OF BRADLEY COUNTY, CR 91-89-1]

PETITION DENIED

In 1992, Corelanius Phillips was found guilty of capital murder and sentenced to a term of life imprisonment without parole. We affirmed. Phillips v. State, 314 Ark. 531, 863 S.W.2d 309 (1993). Now nearly seven years after the judgment was affirmed, Phillips asks that this court reinvest the trial court with jurisdiction to consider a petition for writ of error coram nobis in the case. 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. Larimore v. State, 327 Ark. 271, 938 S.W.2d 818 (1997).

··²TopOfPage²·· ··²TopOfPage²··-A writ of error coram nobis is an extraordinarily rare remedy, more known for its denial than its approval. Larimore v. State, 341 Ark.397, 17 S.W.3d 87 (2000). Literally, coram nobis means our court, in our presence, before us. Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984). The essence of the writ of error coram nobis is that it is addressed to the very court which renders the judgment where injustice is alleged to have been done, rather than to an appellate or othercourt. Black's Law Dictionary 337 (6th ed. 1990). 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). We have held that a writ of error coram nobis was available to address certain errors of the most fundamental nature 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, supra.

The function of the writ of coram nobis is to secure relief from a judgment rendered while there existed some fact which 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 judgment. Larimore, supra. Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid.

The instant petition is based solely on the ground that petitioner was convicted by a eleven-member jury. Petitioner concedes that the trial court asked his attorney in open court if continuing with a eleven-person jury after one juror became incapacitated was acceptable and counsel agreed to continue the trial. He does not contend that the fact that one of the jurors had withdrawn was not fully known to everyone present in the courtroom but argues that the fact that was not known to the trial court was that Arkansas law required a twelve-member jury. The "fact" of a trial court's mistake of law is not, however, the sort of fact encompassed by an error coram nobis proceeding. If it were, any erroneous ruling by a trial court on a fundamental question would be cause to grant the writ even where, as in this case, there could have been a contemporaneous objection to the court's ruling.

We find that petitioner has failed to demonstrate that there existed some fact which would have prevented rendition of the judgment 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 judgment. Clearly, the jury issue could have been addressed in the trial court; and if not raised there by petitioner's counsel, petitioner could have raised the issue in a timely petition for postconviction relief pursuant to Criminal Procedure Rule 37 claiming ineffective assistance of counsel. (By his own admission, petitioner failed to file a petition for postconviction relief.) An error coram nobis proceeding is not a substitute for raising an issue at trial or under Rule 37.

Petition denied.