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SUPREME COURT OF ARKANSAS
No. CR-14-857
Opinion Delivered April 9, 2015
HERMAN L. WHITE APPEAL FROM THE HEMPSTEAD
APPELLANT COUNTY CIRCUIT COURT
[NO. CR-12-98-2]
V.
HONORABLE DUNCAN
CULPEPPER, JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED.
ROBIN F. WYNNE, Associate Justice
Herman L. White pled guilty to first-degree battery of a law enforcement officer
acting in the line of duty and possession of a firearm by certain persons. He now appeals
from the Hempstead County Circuit Court’s order denying his petition for writ of error
coram nobis. We affirm.
The instant offenses occurred on March 23, 2012, when Arkansas State Police
Corporal Pete Penney initiated a traffic stop of the vehicle White was driving. White
cooperated during field-sobriety testing, but he resisted when Corporal Penney attempted
to place him under arrest for driving while intoxicated. White fired a .357 Magnum revolver
at Corporal Penney, and Penney’s body armor absorbed at least one round at close range.
Penney returned fire, and White was hit. White was on probation at the time these events
occurred.
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During the pendency of the case, two psychological evaluations were performed on
White: one at the Arkansas State Hospital on July 3, 2012, and one at the request of the
defense on August 6, 2013. On November 18, 2013, White entered a negotiated plea of
guilty to charges of first-degree battery of a law enforcement officer acting in the line of
duty (a Class Y felony) and possession of a firearm by certain persons (a Class B felony), for
which he was sentenced as a habitual offender with four or more prior felony convictions.
White was facing a sentence of not less than ten and not more than life imprisonment for the
Class Y felony; the State recommended sixty years’ imprisonment. White was sentenced to
sixty and forty years’ imprisonment, respectively, to be served concurrently. He did not file
a petition pursuant to Arkansas Rule of Criminal Procedure 37.1.
On March 20, 2014, White filed a petition for writ of error coram nobis in the
Hempstead County Circuit Court.1 Attached to the petition was a time computation card
from the Arkansas Department of Correction indicating that White was required to serve one
hundred percent of his sixty-year sentence for first-degree battery. White alleged that he was
“adamant about wanting to go to trial” and that he “only agreed to plea after undersigned
counsel advised him that he would be eligible for parole. Undersigned counsel made no
guarantees about whether he would be paroled, but, undersigned counsel advised Mr. White
that he would be paroled.” White went on to allege in the petition that he was denied the
right to effective assistance of counsel, causing him to accept a plea that was “not knowingly
1
Because appellant pled guilty in this case, White was not required to petition this
court to reinvest jurisdiction in the circuit court. See, e.g., McJames v. State, 2010 Ark. 74.
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entered upon advice of counsel,” and to acknowledge that his recourse was the filing of a
petition under Arkansas Rule of Criminal Procedure 37. Since the time for filing a Rule 37
petition had expired, White stated that he was left with no other remedy than to seek to have
the judgment set aside with a petition for writ of error coram nobis. He stated:
In the instant case, given Mr. White’s education and mental capacity, he was
easily coerced into pleading guilty. Prior to the plea, Mr. White was allowed to speak
with his sisters while undersigned counsel was present. Mr. White’s sisters explained
the same advice that led him to enter into this plea.
White asked the circuit court to set aside the judgment and grant him a new trial. The State
responded to the petition, and the circuit court entered an order denying it and citing a
colloquy at the plea hearing that indicated that White understood that the Arkansas
Department of Correction would determine his parole eligibility, regardless of what his
attorney or the prosecutor believed. The circuit court found that White had not been
denied effective assistance of counsel. White filed a timely notice of appeal from the order
denying his petition for writ of error coram nobis.
A writ of error coram nobis is an extraordinarily rare remedy, more known for its
denial than its approval. Howard v. State, 2012 Ark. 177, at 4, 403 S.W.3d 38, 42. The
function of the writ 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. Id. The writ is issued only under compelling circumstances to
achieve justice and to address errors of the most fundamental nature, and it is available to
address only certain errors that are found in one of four categories: (1) insanity at the time
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of trial, (2) a coerced guilty plea, (3) material evidence withheld by the prosecutor, or (4) a
third-party confession to the crime during the time between conviction and appeal. Nelson
v. State, 2014 Ark. 91, at 3, 431 S.W.3d 852, 854. 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. Wright v. State, 2014 Ark. 25 (per curiam).
On appeal, White argues that he was vulnerable to coercion because of his illiteracy,
age, poor health, and his “marginal capacity to effectively assist counsel with his defense
despite scattered memory loss, ” mental disease, and long-standing diffuse mental defects.
He asserts that he relied heavily on his family for advice and counsel. Thus, White argues
that when he spoke with his sisters prior to entering his plea, they coerced him into
accepting the plea based on the incorrect belief that he would be eligible for parole. While
White attempts to couch his claims in terms of a coerced-guilty plea, the actual basis for his
claims is ineffective assistance of counsel with the underlying claim that his plea was not
entered intelligently and voluntarily because of the erroneous advice he received regarding
his parole eligibility. These are matters that can only be brought pursuant to Rule 37, not
in a petition for writ of error coram nobis. E.g., Nelson v. State, 2014 Ark. 91, at 5–6, 431
S.W.3d 852, 856 (“[W]e have been clear that error coram nobis proceedings are not a
substitute for proceeding under Rule 37.1 to challenge the validity of a guilty plea, nor are
the two proceedings interchangeable.”). As White acknowledges in his brief,
ineffective-assistance-of-counsel claims are not cognizable in error-coram-nobis proceedings
under our state law and coram-nobis proceedings are not to be used as a substitute for claims
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of ineffective assistance of counsel. State v. Tejeda-Acosta, 2013 Ark. 217, at 8, 427 S.W.3d
673, 678.
As for White’s claim that his sisters coerced him into pleading guilty, he does not
contend that they actually threatened him or did anything to make his plea entered under
fear or duress; he merely alleges that his sisters incorrectly advised him that he would be
eligible for parole, apparently repeating the erroneous advice of White’s attorney. White
claims that he “relied heavily upon his family for advice and counsel.” White’s allegations
do not rise to the level of coercion, which is defined as “compulsion of a free agent by
physical, moral, or economic force or threat of physical force.” Black’s Law Dictionary 315
(10th ed. 2014). Thus, White has submitted a bare allegation without any facts to support
a finding that he was coerced into pleading guilty. See Wright v. State, 2014 Ark. 25 (per
curiam) (holding that a claim that a guilty plea was coerced in the sense that it was
involuntarily and unknowingly given as a result of erroneous advice did not constitute a
coerced plea within the scope of a coram-nobis proceeding).
Because White’s petition for writ of error coram nobis did not state a cognizable claim
for relief, the circuit court did not abuse its discretion in denying his petition. Therefore, we
affirm.
Affirmed.
Willard Proctor, Jr., P.A., by: Willard Proctor, Jr., for appellant.
Dustin McDaniel, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
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