dissenting.
I respectfully dissent. I agree with the majority that ineffeetive-assistanee-of-counsel claims should be brought in a timely petition for p'ostconviction relief pursuant to Arkansas Rule of Criminal Procedure 37 and are not cognizable in error eoram nobis proceedings. However, I write separately because, in my opinion, the circuit court did not err as a matter of law in this case. It granted relief on the basis of a coerced guilty plea, which we have recognized as one of the four categories approved for a writ of error coram nobis. Consequently, I would apply an abuse-of-discretion standard of review and affirm. Alternatively, I would expand the writ of error coram nobis for the limited purpose of correcting the type of fundamental error demonstrated in this case.
In its detailed order granting the petition and vacating the plea, the court articulated three independent bases for granting the writ: (1) appellee was entitled to relief because he did |nnot voluntarily and knowingly enter his plea of guilty; (2) appellee was entitled to relief because he had been prejudiced by ineffective assistance of counsel; and (3) due to the unique and limited facts of this case, appellee was entitled to relief to correct a fundamental error despite the fact that he was time-barred from bringing an ineffective-assistance-of-counsel claim. I would affirm because the circuit court did not abuse its discretion in finding that appellee was entitled to relief where he did not knowingly and voluntarily enter his guilty plea.
As the majority notes, the circuit court issued a lengthy and detailed order. It found that the sole basis for appellee’s deportation proceedings was his guilty plea; that the first notice appellee had that his plea would impact his immigration status was over five months after he had entered his plea; that appellee had no reason to seek Rule 37 relief within the requisite ninety-day period following his plea; that appellee filed his petition for writ of error coram nobis shortly after he was taken into custody by immigration officers; that appellee’s counsel knew from the onset of the case that appellee was concerned about any impact on his immigration status; that appellee’s attorney had misinformed appellee that an Act 346 plea would not affect his immigration status; that at the plea hearing, appellee stated on the record that it was his belief that an Act 346 guilty plea “is not a felony” and would not impact his immigration status; and that the circuit court, in taking appellee’s plea, advised him that an Act 346 plea was “not a felony until you either mess up your probation or do anything stupid.” The circuit court concluded that appellee had been diligent in filing his petition for | ^error coram nobis, that he would not have pled guilty knowing the immigration consequences that would result, and that appellee did not knowingly and voluntarily plead guilty.
Pursuant to our law, the trial court has discretion to grant or deny a petition for a writ of error coram nobis, and on appeal, we determine whether the lower court abused that discretion in granting the writ and ordering a new trial. State v. Larimore, 341 Ark. 397, 17 S.W.3d 87 (2000). An abuse of discretion occurs when the circuit court acts arbitrarily or groundlessly. Pierce v. State, 2009 Ark. 606, 2009 WL 4405790 (per curiam).
We have recognized that 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, 403 S.W.3d 38. 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. Id. Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Id. We have held that a writ of error coram nobis is available to address certain errors that are found in one of four categories: (1) insanity at the time 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. Id.
A conviction after a plea of guilty normally rests on the defendant’s own admission in open court that he committed the acts with which he is charged. McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); see also Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). That admission may not be compelled, and since the plea is also a waiver of trial — and thus a waiver of the right to contest the admissibility of any evidence the State might have offered against the defendant — it must be an intelligent act “done with sufficient awareness of the relevant circumstances and likely consequences.” Brady, 397 U.S. at 748, 90 S.Ct. 1463.
The majority is correct that the two-part test articulated by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), is the proper analysis for when a petitioner is represented by counsel during the plea process, enters his plea upon the advice of counsel, and later claims that his plea was involuntary because of counsel’s erroneous advice. See Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Importantly, the Hill court merely adopted the appropriate test for analyzing the voluntariness of a guilty plea where the coercion was based on defense counsel’s deficient performance. Hill does not preclude Arkansas courts from analyzing whether a guilty plea was coerced in this manner for purposes of granting a writ of error coram nobis.
Although the majority concludes that Estrada v. State, 2011 Ark. 479, 2011 WL 5437538 (per curiam), directs reversal in this case, in my opinion, it is fully distinguishable. There, Estrada argued in his petition for writ of error coram nobis that his trial counsel had never informed him of possible adverse immigration consequences to pleading guilty; that his counsel was ineffective for failing to advise him of deportation risks under Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010); that error coram no-bis relief should be expanded to include a claim for ineffective assistance of counsel; and that his counsel coerced him into pleading guilty by failing to advise him of deportation consequences. The circuit court found that Estrada’s claim | |4for ineffective assistance of counsel could have been raised in a Rule 37.1 petition and did not provide a basis for coram nobis relief; the circuit court did not rule on Estrada’s claim that his guilty plea was coerced. In reviewing that decision, we declined to expand the grounds for writ of error coram nobis to include ineffective-assistanee-of-counsel claims. We simply did not address in Estrada the issue presented by the present case — whether failure to advise of immigration effects or erroneous advice regarding possible deportation consequences served as coercion for plea purposes.
Here, the circuit court specifically held that appellee’s guilty plea was not knowingly or voluntarily made. The court found that appellee waived his right to a trial upon the mistaken belief — based upon erroneous advice of his trial counsel, which was bolstered by on-the-record discussion at the plea hearing — that his Act 346 plea would not impact his immigration status. The circuit court found that this functioned as a coerced guilty plea. Based on the measured and detailed findings and conclusions issued by the circuit court in this case, I cannot say that the court abused its discretion in this matter.
The circuit court alternatively found that appellee was entitled to the writ of error coram nobis to correct a fundamental error for which appellee would have no other remedy. In Padilla, supra, the United States Supreme Court concluded that an attorney’s performance is constitutionally deficient where he or she does not advise a defendant or gives incorrect advice to a defendant concerning the deportation consequences of pleading guilty. A defendant prejudiced by that deficient performance is entitled to relief. Id. Specifically, the Padilla court held that
| is[i]t is our responsibility under the Constitution to ensure that no criminal defendant — whether a citizen or not — is left to the mercies of incompetent counsel.” To satisfy this responsibility, we now hold that counsel must inform her client whether his plea carries a risk of deportation. Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less.
Id. at 374, 130 S.Ct. 1473, at 1486-87, 176 L.Ed.2d 284 (internal citation omitted).
In this case, the circuit court found that appellee’s counsel had misinformed appel-lee of the deportation consequences of pleading guilty, which constituted ineffective assistance of counsel under Padilla, and that appellee was prejudiced by his counsel’s deficient performance. Yet, because of the ninety-day time limit for filing for postconviction relief pursuant to Rule 37.1, appellee was not entitled to relief despite the fact that he could not have known of his counsel’s deficient performance until he was taken into custody by immigration officials over two months after the ninety-day period had expired. In my opinion, for the extremely limited factual scenario presented by a case such as this, fundamental fairness requires that we consider expanding the writ of error coram nobis to protect a defendant’s Sixth Amendment right to effective assistance of counsel.
Because this court refuses to provide relief for appellee, whose right to competent counsel was so clearly derogated, his alternative is to seek relief through the federal courts.
For these reasons, I dissent.
HART, J., joins in this dissent.