Harold Bryan v. Grant Harris, Warden

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

FEBRUARY 6, 2003

HAROLD BRYAN

Appellant

v.

GRANT HARRIS, WARDEN

Appellee

02-395

PRO SE MOTION TO EXPEDITE APPEAL [CIRCUIT COURT OF JEFFERSON COUNTY, NO. CIV 2001-705-2-3, HON. FRED DAVIS, JUDGE]

APPEAL DISMISSED; MOTION MOOT

In 1991, Harold Bryan entered a plea of guilty to seven criminal offenses for which an aggregate term of 40 years' imprisonment was imposed. In 2001, Bryan filed in the circuit court in the county in which he was incarcerated a pro se petition for writ of habeas corpus. The petition was denied, and the record on appeal from that order has been lodged here. Appellant Bryan now asks by pro se motion that consideration of the appeal be expedited.

The appeal is dismissed as it is clear that the appellant could not prevail on appeal. The motion to expedite the appeal is moot. This court has consistently held that an appeal of the denial of postconviction relief will not be permitted to go forward where it is clear that the appellant could not prevail. Pardue v. State, 338 Ark. 606, 999 S.W.2d 198 (1999); Seaton v. State, 324 Ark. 236, 920 S.W.2d 13 (1996); Harris v. State, 318 Ark. 599, 887 S.W.2d 514 (1994); Reed v. State, 317 Ark. 286, 878 S.W.2d 376 (1994); see Chambers v. State, 304 Ark. 663, 803 S.W.2d 932(1991); Johnson v. State, 303 Ark. 560, 798 S.W.2d 108 (1990); Williams v. State, 293 Ark. 73, 732 S.W.2d 456 (1987).

The burden is on the petitioner in a habeas corpus action to establish 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. Birchett v. State, 303 Ark. 220, 795 S.W.2d 53 (1990). The petitioner 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" he is illegally detained. Ark. Code Ann. 16-112-103 (1987). See Wallace v. Willock, 301 Ark. 69, 781 S.W.2d 478 (1989).

Appellant contended in the petition for writ of habeas corpus that: (1) the felony information charging him with six of the offenses to which he pleaded guilty was inadequate in that the information did not state the essential elements of the offenses; and (2) the information charging him with the seventh offense to which he pleaded guilty, burglary, was inadequate in that the evidence established that he was guilty of no more than the offense of criminal trespass.

It is well settled that the subject-matter jurisdiction of the trial court is not implicated when the sufficiency of the information is questioned. Even if an information is insufficient that fact does not deprive a court of subject-matter jurisdiction. Sawyer v. State, 327 Ark. 421, 935 S.W.2d 843 (1997). Moreover, the informations charging appellant with the seven offenses named the defendant, set out the offense charged, provided the statute under which the charges were brought, specified the county where the offenses were committed, and the facts asserted to constitute the offenses. We have held that an information is sufficient if these components arecontained in it. Sawyer, supra, citing Beard v. State, 269 Ark. 16, 698 S.W. 2 72 (1980). Appellant did not claim when he entered his plea in 1991 that the informations were inadequate and thus the trial court lacked subject-matter jurisdiction. A habeas corpus proceeding is not a substitute for raising an issue in the trial court; nor is it a means to mount a collateral attack on a judgment.

Because none of the issues raised in appellant's petition for writ of habeas corpus was sufficient to demonstrate that the trial court lacked jurisdiction or that the judgment of conviction was invalid on its face, appellant failed to demonstrate that a writ of habeas corpus should be issued.

Appeal dismissed; motion moot.