Summary
recognizing the failure to indicate habitual-offender status in the original judgment-and-commitment order was a “clerical oversight” when the transcript of the plea hearing showed that the appellant was informed that his sentence was being enhanced based on his status as a habitual offender
Summary of this case from Esry v. StateOpinion
CR 09-793
Opinion Delivered November 5, 2009
Pro Se Motion for Appointment of Counsel [Circuit Court of Washington County, Cr 2008-537, Hon. William A. Storey, Judge], Appeal Dismissed; Motion Moot.
In 2008, appellant Rodney L. Crosby entered an unconditional plea of guilty to three counts of first-degree battery and one count of endangering the welfare of a minor. He was sentenced to an aggregate term of 900 months' imprisonment.
In 2009, appellant filed in the trial court a pro se petition for writ of error coram nobis. He contended in the petition that his trial attorney had failed to utilize appellant's prior mental health evaluations to obtain the services of a psychiatrist at state expense and thus he was denied the assistance of a psychiatrist at trial. The trial court denied and dismissed the petition. Appellant has lodged a pro se appeal here from the order.
Now before us is appellant's pro so motion for appointment of counsel to represent him on appeal. We need not consider the motion inasmuch as the appeal is clearly without merit. A postconviction appeal will not be permitted to go forward where it is clear that the appellant could not prevail. See Johnson v. State, 362 Ark. 453, 208 S.W.3d 783 (2005) (per curiam). Accordingly, the appeal is dismissed, and the motion is moot.
The petition filed in the trial court was labeled a petition for writ of error coram nobis. The gravamen of the petition, however, was the claim that appellant's attorney at trial was ineffective. Such claims are properly brought pursuant to Arkansas Rule of Criminal Procedure 37.1. Ark. R. Crim. P. 37.1(a); See Buckhanna v. State, 2009 Ark. 490, at 2 (citing Jackson v. State, 352 Ark. 359, 105 S.W.3d 352 (2003) (citing Strickland v. Washington, 466 U.S. 668 (1984)). Ineffective assistance claims are outside the purview of a coram nobis proceeding, and a petition for writ of error coram nobis is not a substitute for proceeding under Rule 37.1. McArty v. State, 335 Ark. 445, 983 S.W.2d 418 (1998) (per curiam).
In a letter from the court to appellant that is contained in the record, the court advised appellant that the petition was being treated as a Rule 37.1 petition. The court did not err in considering the petition under the rule because a petition for postconviction relief claiming ineffective assistance of counsel as a ground for relief may be considered under the rule, regardless of the label placed on it by the petitioner. State v. Wilmoth, 369 Ark. 346, 255 S.W.3d 419 (2007).
Arkansas Rule of Criminal Procedure 37.2(c) provides that a petition under the rule must be filed within ninety days of the date the judgment was entered if the petitioner pleaded guilty. Here, appellant filed the petition on March 30, 2009, approximately ten months after the judgment of conviction was entered on May 28, 2008. Time limitations imposed in Rule 37.2(c) are jurisdictional in nature, and if they are not met, a trial court lacks jurisdiction to consider a Rule 37.1 petition. Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989).
Appeal dismissed; motion moot.