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                   SUPREME COURT OF ARKANSAS.
                                       No.   CR-05-870


ALPHONSO S. WILSON                               Opinion Delivered October   6, 2016
                             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 BELATED REPLY
                              [PULASKI COUNTY CIRCUIT
                              COURT, NO. 60CR-04-1186]


                                                 PETITION DENIED; MOTION DENIED.


                                       PER CURIAM


        Petitioner Alphonso S. Wilson is incarcerated in the Arkansas Department of

 Correction pursuant to a 2004 judgment reflecting his conviction for capital murder based

 on accomplice liability for which he was sentenced to life imprisonment without parole.

 This court affirmed Alphonso’s conviction as an accomplice to murder, concluding that

 sufficient evidence supported the conviction based on Alphonso’s taped confession that he

 had actively participated in the murder together with his mother, Denise Wilson, and his

 brother, Charles Stevenson.1 Wilson v. State, 365 Ark. 664, 667, 232 S.W.3d 455, 458–59




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         Specifically, Alphonso told investigators that his mother, Denise, and his brother,
 Charles, had carried out the initial assault on the victim and returned home, at which point
 Alphonso became involved in the crime; that Alphonso directed Charles to return to the
 scene and complete the murder as the victim was still alive; that he accompanied Charles to
 the scene and put on gloves and stood by while Charles inflicted the fatal wounds; and that
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(2006). Denise’s murder conviction was likewise affirmed by this court. Wilson v. State,

364 Ark. 550, 222 S.W.3d 171 (2006). Denise did not testify at the trial of Alphonso but

she had provided statements to police implicating both of her sons in the murder. Id. at

552, 222 S.W.3d at 174.

       Now before this court is Alphonso’s pro se application to reinvest jurisdiction in the

trial court to consider a petition for a writ of error coram nobis based on an allegation that

exculpatory evidence had been withheld by the State. In support of the allegation, an

affidavit is attached to the petition, executed by Denise and stating that she lied about

Alphonso’s participation in the murder. In the affidavit, Denise avers that the murder was

committed by Charles at her encouragement, that Alphonso did not play a part in the

murder because “it was already committed,” and that Alphonso did not have any idea that

the murder was about to take place. Alphonso’s petition and the attached affidavit fail to

establish a basis for coram-nobis relief.    Alphonso has also filed a motion “for a belated

reply.” Because there is no provision that allows a petitioner to file a reply brief to a response

to a coram-nobis petition, the motion to file a belated reply brief is also denied. Ark. Sup.

Ct. R. 2-1(a)(d) (2015).

       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

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. A writ of



Alphonso hid one of the murder weapons and disposed of keys taken from the victim’s
home.
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error coram nobis is an extraordinarily rare remedy. 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 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 and which, through no negligence or fault of the defendant,

was not brought forward before rendition of the judgment. Id. 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. 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.

       Despite Alphonso’s allegation that exculpatory evidence had been withheld at the

time of his trial, there is no evidence establishing that Denise provided any statement to

investigators or the prosecutor exonerating either of her sons at the time all three were

separately tried and convicted of capital murder. In fact, on appeal of her conviction, Denise

did not dispute the facts established at her trial that the murder had been committed in

concert with both sons, but she maintained that her participation in the crime was minimal

such that her actions did not support her conviction as an accomplice. Wilson, 364 Ark. at

552–55, 222 S.W.3d at 174–76. In any event, the extent of Alphonso’s culpability in the

crime based on what he knew or did not know or what he did or did not do at the time

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the crime was committed were facts that were surely known to him and could have been

presented to investigators and at his trial through his own testimony. Instead, Alphonso, for

reasons he fails to explain, provided a taped confession to investigators admitting to his

knowledge and participation in the murder.

       To the extent that Alphonso contends that the affidavit represents a third-party

confession that Denise was Charles’s sole accomplice to the crime, it is a confession that was

made over ten years after Alphonso’s conviction has been affirmed on appeal and therefore

does not fit within the relief afforded by the writ. We have limited claims of third-party

confessions to the period before affirmance of the judgment of conviction. Wallace v. State,

2015 Ark. 349, at 9–10, 471 S.W.3d 192, 198–99. This is so because the questions of fact,

which invariably accompany an allegation of a third-party confession, demand prompt

scrutiny. Id. (citing Brown v. State, 330 Ark. 627, 630, 955 S.W.2d 901, 902 (1997)). We

have explained that the mere fact that another person has confessed to a crime cannot, alone,

be grounds for relief as such confessions are not uncommon and must be approached with

some skepticism. Wallace, 2015 Ark. 349, at 10, 471 S.W.3d at 199. Assessing the merits

of a third-party confession requires that all of the evidence be available and unimpaired by

the passage of time so that the trial court’s examination can be exhaustive and decisive. Id.

Our requirement that a claim of a third-party confession must be raised before affirmance

serves to limit such claims to the time frame in which it is most likely that the trial court

can determine with certainty whether the writ should issue. Id.

       Furthermore, although Denise did not testify at Alphonso’s trial, her recent affidavit

recants statements she made to police that Charles and Alphonso committed the murder.

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Wilson, 364 Ark. at 552, 222 S.W.3d at 174. A claim of recanted testimony, standing alone,

is not cognizable in an error-coram-nobis proceeding. McArthur v. State, 2014 Ark. 367, at

5, 439 S.W.3d 681, 684 (2014) (citing Anderson v. State, 2012 Ark. 270, 423 S.W.3d 20 (per

curiam)). 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 curiam).

We are likewise not required to accept at face value the allegations set forth in an affidavit

executed over ten years later that recants statements made to investigators immediately

following the crime.

       Finally, Alphonso fails to establish that the statements set forth in Denise’s affidavit

would have resulted in a different verdict. Taylor v. State, 303 Ark. 586, 594, 799 S.W.2d

519, 524 (1990). As set forth above, Alphonso was convicted based on his own admissions

of guilt wherein he described his actions after his mother and brother had returned home

and informed Alphonso that they had assaulted the victim. Denise states in her affidavit that

the murder “had already been committed.” However, Alphonso admitted to police that,

after the initial assault had been perpetrated by his mother and brother, Alphonso had

returned to the scene of the crime where the victim lay unconscious but was still alive and

that he aided his brother in finalizing the murder and assisted in disposing of evidence.

There is nothing in the recent affidavit executed by Denise that disproves Alphonso’s

description of the events that took place following the assault initially perpetrated by Denise

and Charles. Alphonso has shown neither the type of fundamental error nor facts which

would have prevented rendition of the judgment so as to warrant this court reinvesting




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jurisdiction in the trial court to consider a petition for writ of error coram nobis. Thomas v.

State, 367 Ark. 478, 482, 241 S.W.3d 247, 250 (2006).

       Petition denied; motion denied.




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