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                 SUPREME COURT OF ARKANSAS
                                        No.   CR-09-596


                                                  Opinion Delivered February   23, 2017
DENNIS HUTCHINSON
                              PETITIONER
                              PRO SE PETITION TO REINVEST
V.                            JURISDICTION IN THE TRIAL
                              COURT TO CONSIDER A
 STATE OF ARKANSAS            PETITION FOR WRIT OF ERROR
                   RESPONDENT CORAM NOBIS; PRO SE MOTION
                              FOR APPOINTMENT OF COUNSEL
                              [PULASKI COUNTY CIRCUIT
                              COURT, NO. 60CR-08-983 ]


                                                  PETITION DENIED; MOTION
                                                  MOOT.


                                        PER CURIAM


        Petitioner, Dennis Hutchinson, was convicted by a jury of second-degree murder

 and was sentenced under a firearm-enhancement provision to an aggregate term of 540

 months’ imprisonment. His conviction and sentence were affirmed by the Arkansas Court

 of Appeals. Hutchinson v. State, 2010 Ark. App. 235.

        Now before this court are Hutchinson’s pro se application to reinvest jurisdiction in

 the trial court to consider a petition for writ of error coram nobis and a motion for

 appointment of counsel. For the reasons set forth below, we deny the petition, and the

 motion for appointment of counsel is therefore moot.

        We first note that a petition filed in this court for leave to proceed in the trial court

 where the judgment was entered is necessary because the trial court can entertain a petition
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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, at 11, 425 S.W.3d 771, 778.

       The function of the writ of error coram nobis is to secure relief from a judgment

rendered while there existed some fact that would have prevented the rendition of the

judgment had it been known to the trial court and which, through no fault of the defendant,

was not brought forward before rendition of the judgment. Newman v. State, 2009 Ark. 56,

at 5, 354 S.W.3d 61, 65. 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, 42–43. Coram nobis proceedings are attended by a strong presumption that the

judgment of conviction is valid. Id. The petitioner has the burden of demonstrating a

fundamental error of fact extrinsic to the record. Id. We have held that 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.

       Before addressing the merits of Hutchinson’s claim for relief, it is necessary to review

the evidence presented at trial in support of his conviction for the murder of Richard Ivey,

who was the husband of Hutchinson’s codefendant, Brenda Ivey. A review of the trial

transcript reveals that at the time of the murder, Brenda had been living with Hutchinson

for several months. Brenda testified at trial that Hutchinson had encouraged her to lure

Richard to Hutchinson’s home, claim that Richard had broken into the home with the

intent to harm her, and assert that she had acted in self-defense when Richard was killed.

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Evidence introduced at trial demonstrated that Brenda and Richard had exchanged several

text messages prior to the murder, wherein Brenda informed Richard that she intended to

reconcile with him and, to that end, had asked Richard to come to Hutchinson’s home to

help move her belongings. According to Brenda, when Richard walked into the house,

she shot and wounded him, and Hutchinson prevented Richard from escaping and delivered

the fatal gunshot. Brenda’s testimony was corroborated by Richard’s two co-workers, Saul

DeLeon and Johnathon Mahoney, who, at Richard’s request, had followed him in a separate

vehicle to Hutchinson’s home to help with the move. DeLeon and Mahoney testified that

they watched as Richard readily entered the house, and, as they waited for Richard to come

back outside, they heard a popping noise and then observed Hutchinson step out of the

front door, pick up a shovel and break a window. The crux of Hutchinson’s defense at trial

and on appeal was that Hutchinson had acted in self-defense. See Hutchinson, 2010 Ark.

App. 235, at 3 (rejecting Hutchinson’s argument that the jury should have been instructed

on the existence of a presumption that a person may use force to defend himself in his home

unless that presumption was overcome by clear and convincing evidence).

       In support of his claim for coram-nobis relief, Hutchinson now contends that he was

incompetent at the time of trial and recounts a history of child abuse and posttraumatic stress

disorder (PTSD) stemming from his military service in the Vietnam War. According to

Hutchinson, physicians with the Veterans Administration diagnosed him with PTSD, placed

him in a mental ward, and determined that he was totally disabled as a result of the diagnosis.

Hutchinson further contends that preceding the murder, he began to experience flashbacks

and bouts of paranoia, which he attempted to alleviate with the use of methamphetamine.

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Rather than alleviate his symptoms, Hutchinson contends that his drug use exacerbated his

PTSD, making the flashbacks more frequent and prolonged. Finally, Hutchinson states that

in the months leading up to his trial, he suffered from severe depression, difficulty

concentrating, suicidal ideation, and paranoia, and he was placed in the medical ward of the

county jail as a result of his mental impairment.

       When claiming insanity as a ground for the writ, the burden is on the petitioner who

claims mental illness to overcome the strong presumption that the judgment was valid. Noble

v. State, 2015 Ark. 215, at 3, 462 S.W.3d 341, 344 (per curiam). Information that a

petitioner either could have known, or did know, at the time of trial does not provide

grounds for issuance of a writ of error coram nobis. Rodgers v. State, 2013 Ark. 294, at 3

(per curiam).

       The trial record demonstrates that Hutchinson did not request a mental evaluation

or raise the issue of mental competence at the time of his trial. The record further reveals

that during the sentencing phase, mitigation testimony was provided that Hutchinson

suffered from PTSD and had been found to be 100 percent disabled as a result of that

diagnosis. Clearly, Hutchinson and his trial counsel were aware of Hutchinson’s mental

history at the time of trial; therefore, Hutchinson does not present facts sufficient to

demonstrate that there was information not known at the time of trial, or which could not

have been known at the time of trial, to establish that he was insane and incompetent to

proceed. Williams v. State, 2016 Ark. 92, at 3, 485 S.W.3d 254, 256.

       Furthermore, we are not required to accept the allegations in a petition for writ of

error coram nobis at face value. Goff v. State, 2012 Ark. 68, at 3, 398 S.W.3d 896, 898 (per

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curiam). Hutchison’s allegations are conclusory, and he fails to set forth sufficient facts

demonstrating that his alleged mental impairment rendered him incompetent to stand trial.

A criminal defendant is presumed to be competent to stand trial and has the burden of

proving otherwise. Thessing v. State, 365 Ark. 384, 390, 230 S.W.3d 526, 532 (2006). A

circuit court is not required to hold a hearing on a criminal defendant’s competency sua

sponte unless there is reasonable doubt about the defendant’s competency. Whitham v. State,

2011 Ark. 28, at 3–4; Davis v. State, 375 Ark. 368, 291 S.W.3d 164 (2009). Conclusory

statements fall far short of meeting a petitioner’s burden of showing that he was not

competent to stand trial. Webb v. State, 2009 Ark. 550, at 6 (per curiam). Hutchinson does

not point to evidence presented to the court that he was not fit to proceed. Id.

       Furthermore, Hutchinson failed to sufficiently demonstrate that he acted with

diligence in pursuing his claim. Echols v. State, 354 Ark. 414, 419, 125 S.W.3d 153, 157,

(2003). Although there is no specific time limit for seeking a writ of error coram nobis, due

diligence is required in making an application for relief. Id. In the absence of a valid excuse

for delay, the petition will be denied. Id. This court has held that due diligence requires

that (1) the defendant be unaware of the fact at the time of trial; (2) he could not have, in

the exercise of due diligence, presented the fact at trial; or (3) upon discovering the fact, did

not delay bringing the petition. Id. As stated, Hutchinson was aware of the facts he now

alleges as a basis for his claim of incompetence, he failed to raise a competency issue at the

time of trial, and he waited six years after his conviction had been affirmed on appeal to

bring this petition. In view of the above, Hutchinson’s allegations of incompetence fail to

establish that there existed a fundamental error of fact extrinsic to the record that would

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have prevented the rendition of the judgment had it been known to the trial court and

which, through no fault of the defendant, was not brought forward before rendition of the

judgment.

      Petition denied; motion moot.




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