                                     Cite as 2013 Ark. 485


                 SUPREME COURT OF ARKANSAS
                                         No.   CR-13-663

                                                    Opinion Delivered   November 21, 2013
FRANK WATTS II                                      PRO SE MOTION FOR EXTENSION
                                APPELLANT           OF TIME TO FILE BRIEF AND
                                                    MOTION FOR USE OF TRANSCRIPT
v.                                                  [PULASKI COUNTY CIRCUIT
                                                    COURT, 60CR-97-2871, HON.
STATE OF ARKANSAS                                   WENDELL GRIFFEN, JUDGE]
                                  APPELLEE


                                                    APPEAL DISMISSED; MOTIONS
                                                    MOOT.

                                         PER CURIAM

       In 1999, a jury found appellant Frank Watts II guilty of one count of possession of a

controlled substance with intent to deliver (cocaine), one count of possession of drug

paraphernalia, and one count of failure to keep records. He was sentenced as a habitual offender

to an aggregate term of life imprisonment. No appeal was taken.1

       In 2012, appellant filed in the circuit court a pro se petition for writ of error coram nobis

in which he alleged that the judgment violated the prohibition against double jeopardy, counsel

failed to subpoena witnesses who had executed documents exonerating him, he was denied the

right to a speedy trial, he was denied the right to conduct his own defense and had ineffective

assistance of counsel, and his constitutional rights were violated when he was not given a copy

of his trial transcript. The circuit court denied the petition, and appellant lodged an appeal from

that order. Now before us are appellant’s pro se motions for extension of time to file his brief


       1
       Appellant later filed a motion for belated appeal, which was denied. Watts v. State, CR-
00-201 (Ark. Sept. 28, 2000) (unpublished per curiam).
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and for use of transcript.

       We need not address the merits of the motions because it is clear from the record that

appellant could not prevail on appeal if the appeal were permitted to go forward. An appeal

from an order that denied a petition for postconviction relief, including a petition for writ of

error coram nobis, will not be permitted to go forward where it is clear that the appellant could

not prevail. Morgan v. State, 2013 Ark. 341 (per curiam). Accordingly, the appeal is dismissed,

and the motions are moot.

       A writ of error coram nobis is an extraordinarily rare remedy, more known for its denial

than its approval. Cromeans v. State, 2013 Ark. 273 (per curiam); Howard v. State, 2012 Ark. 177,

___ S.W.3d ___. The writ is allowed only under compelling circumstances to achieve justice and

to address errors of the most fundamental nature. McDaniels v. State, 2012 Ark. 465 (per curiam).

We have held that a writ of error coram nobis is available to address certain errors that are found

in one of four categories: insanity at the time of trial, a coerced guilty plea, material evidence

withheld by the prosecutor, or a third-party confession to the crime during the time between

conviction and appeal. Cromeans, 2013 Ark. 273; Pitts v. State, 336 Ark. 580, 583, 986 S.W.2d 407,

409 (1999) (per curiam). 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 circuit court and which, through no negligence or fault of the defendant, was not brought

forward before rendition of judgment. McFerrin v. State, 2012 Ark. 305 (per curiam); Cloird v.

State, 2011 Ark. 303 (per curiam). To warrant a writ, a petitioner has the burden of bringing

forth some fact, extrinsic to the record, that was not known at the time of trial. Martin v. State,



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2012 Ark. 44 (per curiam). Coram-nobis proceedings are attended by a strong presumption that

the judgment of conviction is valid. Roberts v. State, 2013 Ark. 56, ___ S.W.3d ___; Carter v. State,

2012 Ark. 186 (per curiam); Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984) (citing Troglin v.

State, 257 Ark. 644, 519 S.W.2d 740 (1975)). 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.

McClure v. State, 2013 Ark. 306 (per curiam).

       As grounds for the writ, appellant first contended in his petition that the 1999 judgment

violated the prohibition against double jeopardy because the charges had been joined with

charges in a case previously concluded.2 In 1997, appellant had been found guilty by a jury of

possession of a controlled substance with intent to deliver, two counts of possession of drug

paraphernalia, and possession of a controlled substance.3 He was sentenced as a habitual

offender to an aggregate sentence of sixty years’ imprisonment. The Arkansas Court of Appeals

affirmed. Watts v. State, 68 Ark. App. 47, 8 S.W.3d 563 (2000).

       Double-jeopardy claims do not fall within any of the four categories of recognized claims,

and appellant has not provided a demonstration of any error concerning facts that were not



       2
        While appellant also summarily referred to the lack of subject-matter jurisdiction, a
violation of the doctrine of collateral estoppel, and violations of equal protection and due
process, it is clear that the claim is essentially an allegation of a violation of the prohibition
against double jeopardy.
       3
        Prior to the 1997 trial, appellant filed a pro se “Motion for Joinder of Offenses,” in
which he alleged that he was entitled to have “these offenses” joined. Pursuant to the felony
information, appellant was charged with the four offenses for which he was ultimately convicted.
On the day of the trial, appellant referred to the motion, and the State responded that the
offenses were joined and that all offenses were being tried that day. The trial court then granted
the motion.

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known at the time of trial or that were not included in the record pertaining to that claim. See

Hoover v. State, 2012 Ark. 136 (per curiam). Moreover, we have previously addressed this same

issue in appellant’s previous appeal of the denial of a motion to vacate his 1999 conviction and

sentence based on a double-jeopardy claim. Granting appellant’s motion to dismiss the appeal,

we did so with prejudice because the application for relief was untimely. We also noted that the

1999 judgment did not violate the prohibition against double jeopardy because the 1997 and

1999 judgments indicate convictions for different offenses occurring on different dates. Watts

v. State, CR-08-1280 (Ark. Jan. 30, 2009) (unpublished per curiam). We again addressed the

effect of any joinder of offenses in Watts v. State, 2013 Ark. 318 (per curiam) in an appeal of the

dismissal of a petition for writ of habeas corpus. In response to appellant’s claim that double

jeopardy attached at the 1997 trial rendering the 1999 judgment a nullity, we held that if

appellant was raising a double-jeopardy claim, it was without merit. Appellant also argued in that

case that the trial court lacked subject-matter jurisdiction to enter the 1999 judgment because

the court had granted appellant’s motion for joinder of offenses in the 1997 trial. We held that

appellant offered nothing to establish that, at the time of the 1999 conviction, the trial court did

not have personal jurisdiction over him, jurisdiction over the subject matter, or the authority to

render the particular judgment. Id.

       Appellant’s second ground for issuance of the writ was that counsel’s failure to subpoena

certain defense witnesses who had executed documents exonerating him, along with the

intentional delay of his trial, resulted in the witnesses disappearing or relocating to an unknown

address. Without providing any factual support, appellant claimed that the trial was delayed due



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to the “buddying” relationship between counsel and the prosecuting attorney. These allegations

amount to a claim of ineffective assistance of counsel, which is outside the purview of a coram-

nobis proceeding. See Hall v. State, 2013 Ark. 404 (per curiam). To the extent that appellant

alleged that the prosecuting attorney, with the assistance of counsel, withheld or suppressed

documents executed by these witnesses, he has failed to state a violation of Brady v. Maryland, 373

U.S. 83 (1963). This court has previously recognized that a writ of error coram nobis was

available to address errors pertaining to material evidence withheld by the prosecutor. Cromeans,

2013 Ark. 273; Burks v. State, 2013 Ark. 188 (per curiam). 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. Cromeans, 2013 Ark. 273;

Burks, 2013 Ark. 188. In his petition, appellant admitted that he received the documents while

in jail and forwarded them to the prosecuting attorney’s office and that the documents were

introduced as evidence during an omnibus hearing. Accordingly, appellant did not show that

the evidence was withheld willfully or inadvertently by the prosecuting attorney. To the extent

that appellant raised any related claims, he has not stated a cognizable claim for relief because

the allegations concern matters, which were known or could have been known at the time of

trial and addressed at that time. See Cromeans, 2013 Ark. 273.

       In his third ground for issuance of the writ, appellant alleged that he was denied a speedy

trial because he was not brought to trial within twelve months from the time provided in our

rules of criminal procedure. Again, without providing any factual support, he also claimed that



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the prosecuting attorney and counsel intentionally delayed his trial to give the prosecuting

attorney a tactical advantage and to harass him. Additionally, appellant argued that the delay was

a violation of his right to due process and that the trial court erred in denying his motions to

dismiss based on speedy-trial violations. The information put forth by appellant as proof that

he had been denied a speedy trial was available at the time of trial and was not hidden in some

way by the State. See Rodgers v. State, 2012 Ark. 193 (per curiam). The question of whether there

was a speedy-trial violation is one that could have been addressed at trial and, if the issue was

decided adversely to appellant, on the record on direct appeal. Claims that could have been

raised at trial are not grounds for the writ. Smith v. State, 2012 Ark. 403 (per curiam). As the

information was available, appellant did not meet his burden of establishing a basis for a writ of

error coram nobis. To the extent that appellant has alleged a related claim of prosecutorial

misconduct, we find no merit to this allegation. While certain prosecutorial misconduct may be

grounds for a writ, the claims raised by appellant could have been addressed at trial. Likewise,

to the extent that appellant has raised a claim of ineffective assistance of counsel, such claims,

as held herein, are not cognizable in an error-coram-nobis proceeding. See Hall, 2013 Ark. 404.

       In his fourth ground for issuance of the writ, appellant raised a number of claims of

ineffective assistance of counsel. He also alleged related claims of misconduct of the prosecuting

attorney, police, and counsel, as well as trial error and conflict of interest of counsel. Again,

allegations of ineffective assistance of counsel are outside the purview of a coram-nobis

proceeding. Id. Additionally, the other allegations of error are not subject to review in a coram-

nobis proceeding because these matters were known or could have been known to appellant at



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the time of trial such that the issue could have been raised at trial. See Cromeans, 2013 Ark. 273.

Finally, we do not consider the allegations raised by appellant in his attempt to reargue issues

that we have addressed in previous appeals brought by appellant.

       Appellant’s final ground for issuance of the writ was based on the allegation that he has

not been able to obtain a copy of his trial transcript, which he concluded was due to its

destruction by the trial court to conceal violations of his right to due process and equal

protection. A writ of error coram nobis is not available to address this type of error, which, even

if true, would not have prevented the judgment against him.

       Appeal dismissed; motions moot.

       Frank Watts II, pro se appellant.

       No response.




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