                                   Cite as 2018 Ark. 379
                  SUPREME COURT OF ARKANSAS
                                      No.   CR-00-1360


 RODNEY BUNCH                                   Opinion Delivered:   December 20, 2018
                              PETITIONER

 V.                           PRO SE PETITION TO REINVEST
                              JURISDICTION IN THE TRIAL
 STATE OF ARKANSAS            COURT TO CONSIDER A PETITION
                   RESPONDENT FOR WRIT OF ERROR CORAM
                              NOBIS; PRO SE MOTION FOR
                              SANCTIONS TO BE PLACED UPON
                              THE OFFICE OF THE ATTORNEY
                              GENERAL FOR THE STATE OF
                              ARKANSAS FOR VIOLATION OF
                              RULE 11 OF THE ARKANSAS RULES
                              OF APPELLATE PROCEDURE-CIVIL
                              [PULASKI COUNTY CIRCUIT COURT,
                              SIXTH DIVISION, NO. 60CR-98-3654]

                                                PETITION DENIED; MOTION FOR
                                                SANCTIONS DENIED.


                     COURTNEY HUDSON GOODSON, Associate Justice

       Pending before this court is petitioner Rodney Bunch’s pro se petition to reinvest

jurisdiction in the trial court to consider a petition for writ of error coram nobis. Bunch’s

claims for coram nobis relief are based on allegations that his sentence was illegally

enhanced because the prosecutor withheld evidence supporting his habitual-offender status

in violation of Brady v. Maryland, 373 U.S. 83 (1963). Also pending is Bunch’s pro se

motion for sanctions to be placed upon the office of the attorney general.
       Bunch was convicted of multiple counts of aggravated robbery in three trials arising

from two separate cases docketed in the trial court as 60CR-98-3654 and 60CR-99-276.

Bunch was charged in the first case docketed as 60CR-98-3654 with the aggravated robbery

of Stephanie Springer Transue and was brought to trial in 1999, which resulted in a

mistrial. Before this case was retried, Bunch was convicted of two counts of aggravated

robbery in the case docketed as 60CR-99-276, which stemmed from the robbery of Head

Waves Hair Salon.1 Consequently, the prosecutor amended the felony information in case

number 60CR-98-3654 to include a habitual-offender charge. In that case, Bunch was

convicted of the aggravated robbery of Transue and was sentenced by the trial court as a

habitual offender to life imprisonment pursuant to Arkansas Code Annotated section 5-4-

501(d) (Repl. 1997).2       On appeal, Bunch argued that section 5-4-501(d) was

unconstitutional as applied to him. This court rejected the argument and affirmed the

conviction and the enhanced sentence of life imprisonment. Bunch v. State, 344 Ark. 730,

43 S.W.3d 132 (2001). It is from this sentence that Bunch seeks coram nobis relief.


       1
        Bunch was subsequently convicted of an additional four counts of aggravated
robbery and one count of sexual abuse in a separate trial in case number 60CR-99-276,
which stemmed from a separate robbery of Salon MDC. Bunch was again sentenced as a
habitual offender and sentenced to life imprisonment. This court affirmed. Bunch v. State,
346 Ark. 33, 57 S.W.3d 124 (2001) (overruled by Grillot v. State, 353 Ark. 294, 107 S.W.3d
136 (2003), which clarified the standard of review used to analyze the trial court’s ruling on
the voluntariness of a confession).
       2
        Section 5-4-501(d)(1)(A) mandates a life sentence if a defendant has been convicted
of a violent Y felony such as aggravated robbery and has previously been convicted of two
or more violent Y felonies. Because a life sentence was mandatory, it was not necessary to
submit the determination of Bunch’s sentence to the jury.
                                              2
Shortly after this court had affirmed Bunch’s conviction and life sentence, the Arkansas

Court of Appeals affirmed Bunch’s two previous convictions for aggravated robberies

committed at Head Waves Hair Salon. Bunch v. State, CR-00-1035 (Ark. App. May 16,

2001) (unpublished).

       Bunch fails to make sufficient allegations to warrant coram nobis relief, and because

coram nobis relief is not an available remedy for the purpose of seeking a reduction in a

sentence, we deny the petition to proceed in the trial court with a coram nobis petition.

Furthermore, Bunch’s pro se motion for sanctions pursuant to Rule 11 (2017) of the

Arkansas Rules of Appellate Procedure –Civil, is wholly without merit. Appellate Rule 11

is applicable to civil appellate proceedings and a petition to reinvest jurisdiction in the trial

court to consider a petition for a writ of error coram nobis is a criminal proceeding. See

Whitney v. State, 2018 Ark. 138, reh’g denied (June 7, 2018) (the term “writ of error coram

nobis” has been recognized in our common law for all motions for new trial in a criminal

case). In any event, Bunch’s allegations underlying his claim for sanctions fail to establish

that the appellee’s response was frivolous and lacked a reasonable legal or factual basis. See

Stilley v. Hubbs, 344 Ark. 1, 40 S.W.3d 209 (2001). We therefore deny Bunch’s pro se

motion for sanctions.

       The petition for leave to proceed in the trial court is necessary because the trial

court can entertain a petition for writ of error coram nobis after a judgment has been

affirmed on appeal only after we grant permission. Roberts v. State, 2013 Ark. 56, 425

S.W.3d 771. A writ of error coram nobis is an extraordinarily rare remedy. Id. Coram
                                               3
nobis proceedings are attended by a strong presumption that the judgment of conviction is

valid. Id.; Westerman v. State, 2015 Ark. 69, 456 S.W.3d 374. The function of the writ is to

secure relief from a judgment rendered while there existed some fact that 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 the

judgment. Roberts, 2013 Ark. 56, 425 S.W.3d 771. The petitioner has the burden of

demonstrating a fundamental error of fact extrinsic to the record. Id.

       The writ is allowed only under compelling circumstances to achieve justice and to

address errors of the most fundamental nature. Id. A writ of error coram nobis is available

for addressing 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.; Howard v. State, 2012 Ark. 177, 403 S.W.3d 38.

       Bunch has raised a Brady claim, which comes within the purview of coram nobis

relief. There are three elements of a Brady violation: (1) the evidence at issue must be

favorable to the accused, either because it is exculpatory or because it is impeaching; (2) the

evidence must have been suppressed by the State, either willfully or inadvertently; (3)

prejudice must have ensued. Carner v. State, 2018 Ark. 20, 535 S.W.3d 634 (citing Strickler

v. Greene, 527 U.S. 263 (1999)).        When determining whether a Brady violation has

occurred, it must first be established by the petitioner that the material was available to the

State prior to trial and that the defense did not have it. Id.
                                               4
       In his petition, Bunch challenges the validity of his enhanced sentence as a habitual

offender resulting from his prior aggravated-robbery convictions in case number 60CR-99-

276 wherein he was convicted of the aggravated robbery of Liz Kirk and Susan Kennedy

and theft of property from Head Waves Hair Salon.3 Consequently, he alleges entitlement

to a reduction in his sentence rather than a new trial on the underlying conviction for the

aggravated robbery of Transue in case number 60CR-98-3654. Bunch asserts that one of

the two previous convictions relied on by the prosecutor to establish his habitual-offender

status was invalid and contends that the prosecutor had withheld the judgment as well as

the criminal information to conceal the invalidity of one of the two convictions.

       Specifically, Bunch argues that there are inconsistencies between the information

and judgment-and-commitment order with respect to the victims named in counts five, six,

and seven of the information.4 In any event, the two prior convictions were clearly valid.




       3
         Bunch had been charged in an information that contained thirty-eight criminal
counts but was tried in case number 60CR99-276 for two counts of aggravated robbery as
set forth in the information in counts five and six and one count of theft of property from
Head Waves Salon as set forth in count seven of the information.
       4
         Bunch’s arguments regarding invalidity of his prior convictions for counts five
through seven are unclear. It appears that Bunch is asserting that count seven which
included the theft of property charge did not include the name of the victim. Bunch asserts
that Chris Woodall was not listed in counts five through seven, but nevertheless testified.
According to Bunch, Chris Woodall’s testimony should have been excluded because he
was not named in the information. However, the direct appeal record shows that Woodall
was the owner of Head Waves. In addition, Bunch alleges that his conviction for the
aggravated robbery of Susan Kennedy as set forth in count six was not supported by
sufficient evidence in that Kennedy could not identify him as the perpetrator. Thus,
Bunch maintains that his conviction for the robbery of Kennedy is invalid. However, Liz
                                             5
See Bunch, CR-00-1035 (Ark. App. May 16, 2001) (affirming Bunch’s convictions by a

Pulaski County jury for two counts of aggravated robbery). There can be no doubt that

Bunch’s previous convictions were matters that were not unknown by the defense at the

time he was sentenced as a habitual offender following his second trial for the aggravated

robbery of Transue in case number 60CR-98-3654.          Therefore, Bunch has failed to

demonstrate that the prosecutor concealed material matters in violation of Brady that

would have changed the outcome of his sentencing. Carner, 2018 Ark. 20, 535 S.W.3d

634. Nor has Bunch raised allegations establishing matters extrinsic to the record that

would have prevented the imposition of his life sentence. Roberts, 2013 Ark. 56, 425

S.W.3d 771.

       Furthermore, Bunch’s allegation challenging his sentence and seeking a reduction

in that sentence does not fit within the recognized bases for coram nobis relief and is not

the proper remedy to challenge an allegedly illegal sentence. This court has previously

addressed this issue in Burks v. State, 2009 Ark. 598, 359 S.W.3d 402, in which the State

procured the cooperation of a witness by supporting the witness’s petition for a writ of

error coram nobis seeking a reduction in a sentence that had been previously imposed

pursuant to a plea agreement. In Burks, the circuit court granted the coram nobis relief




Kirk listed as the victim in count five identified Bunch as the perpetrator and Chris
Woodall also identified Bunch as the perpetrator. The judgment-and-commitment order
shows that Bunch was convicted of two aggravated robbery charges for which he was
sentenced to 240 months’ imprisonment and that the theft of property conviction merged
with the two aggravated robbery convictions.
                                            6
and reduced the sentence after the witness had testified favorably for the State. Id. at 2,

359 S.W.3d at 405. Before the circuit court granted coram nobis relief, the defendant in

Burks had moved to suppress the testimony because, among other things, cooperation was

procured by a promise involving an illegal use of the writ of error coram nobis. Id. Despite

the challenge to the improper use of the writ of error coram nobis, this court affirmed the

circuit court’s denial of the motion to suppress because the defendant’s suppression

motion did not represent a direct attack on the reduced sentence. Id. However, in a

footnote, this court explained that “our court has repeatedly held that the grant of a writ of

error coram nobis only affords one remedy—a new trial.” Id. at 4 n.2, 359 S.W.3d at 406

n.2. Consequently, this court referred the prosecutor, the defense attorney, and the circuit

judge to the Committee on Professional Conduct and the Judicial Discipline and Disability

Commission because they had ignored clear precedent by using a writ of coram nobis as an

improper means to reduce a sentence. Id. Accordingly, coram nobis is not an avenue

through which a reduction in sentence can be obtained.

       Petition denied; motion for sanctions denied.




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