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                   SUPREME COURT OF ARKANSAS
                                          No.   CR-13-761

                                                     Opinion Delivered   February 6, 2014

ROBERT E. BANNISTER                                  PRO SE MOTION FOR BELATED
                                PETITIONER           APPEAL OF ORDER [WASHINGTON
                                                     COUNTY CIRCUIT COURT, 72CR-11-
V.                                                   902]

STATE OF ARKANSAS
                              RESPONDENT             MOTION DENIED.


                                         PER CURIAM

       In 2011, petitioner Robert E. Bannister entered a plea of guilty to two counts of second-

degree sexual assault. He was sentenced to an aggregate term of 240 months’ imprisonment.

       In 2013, petitioner filed in the trial court a pro se petition for writ of error coram nobis

in which he alleged that the judgment should be vacated on the grounds that his guilty plea was

coerced and that there was newly discovered evidence that warranted issuance of the writ. The

trial court denied and dismissed the petition. No appeal was taken, and petitioner now seeks

leave to proceed with a belated appeal of the order.

       As it is clear from the record that petitioner could not prevail on appeal if the appeal were

permitted to go forward, the motion is denied. See Crain v. State, 2012 Ark. 412 (per curiam); see

also Bates v. State, 2012 Ark. 394 (per curiam). 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); Davis v. State, 2012 Ark. 228 (per curiam).

       The standard of review of a denial of a petition for writ of error coram nobis is whether
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the circuit court abused its discretion in denying the writ. Morgan, 2013 Ark. 341; Lee v. State,

2012 Ark. 401 (per curiam); Carter v. State, 2012 Ark. 186 (per curiam); Benton v. State, 2011 Ark.

211 (per curiam); Pierce v. State, 2009 Ark. 606 (per curiam). An abuse of discretion occurs when

the circuit court acts arbitrarily or groundlessly. Lee, 2012 Ark. 401 (citing Estrada v. State, 2011

Ark. 479 (per curiam)). There can be no abuse of discretion in the denial of error coram nobis

relief where the claims in the petition did not provide a basis to support issuance of the writ.

See Benton, 2011 Ark. 211.

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

than its approval. Edwards v. State, 2013 Ark. 517 (per curiam); Larimore v. State, 341 Ark. 397,

17 S.W.3d 87 (2000). The writ is allowed only under compelling circumstances to achieve justice

and to address errors of the most fundamental nature. Pitts v. State, 336 Ark. 580, 986 S.W.2d

407 (1999) (per curiam). We have held that a writ of error coram nobis was available to address

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

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

between conviction and appeal. Sanders v. State, 374 Ark. 70, 285 S.W.3d 630 (2008) (per

curiam).

       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. Cloird v. State, 357 Ark. 446, 182 S.W.3d 477 (2004). A writ of error

coram nobis is appropriate when an issue was not addressed or could not have been addressed



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at trial because it was somehow hidden or unknown. Larimore v. State, 327 Ark. 271, 938 S.W.2d

818 (1997). For the writ to issue following the affirmance of a conviction, the petitioner must

show a fundamental error of fact extrinsic to the record. Thomas v. State, 367 Ark. 478, 241

S.W.3d 247 (2006) (per curiam). Looking to the petition filed in the trial court and not to any

new claims or arguments raised in the motion for belated appeal, we find that petitioner asserted

no issue that was hidden or unknown or any error of fact extrinsic to the record, and he did not

demonstrate that there was an error in the proceedings against him that would warrant the writ.

       Petitioner’s grounds for the writ combined the claim that his guilty plea was coerced with

the claim that the prosecution withheld evidence from the defense. The coercion was alleged

to have begun when petitioner initially met with the police concerning the allegation that he had

engaged in sexual contact with a minor. He alleged that he agreed to go to the police station

after it was closed for the day and was told that he could terminate questioning at any time and

that the door would be unlocked if he wished to leave. When the questioning turned from mere

misdemeanor sexual contact to sexual assault, petitioner asserted that he asked for an attorney

and asked to stop the questioning. He contended that he was then shown a pair of handcuffs

and told that he would be placed under arrest if he requested counsel. His wife and children

were then allowed to join him in the interrogation room, and his wife attempted to contact a

lawyer but was unable to do so. Petitioner was shown a large paper bag that he was told

contained evidence; he was not shown the evidence but was shown a photocopied document

containing pictures of the crime scene and pictures of the evidence said to be in the paper bag.

Even though his family was allowed to join him and his wife was allowed to attempt to contact



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an attorney, petitioner argued that he was nevertheless coerced into pleading guilty by virtue of

the manipulative techniques used by the interrogator. Those techniques included mocking his

religion, forcing him to pray with the investigator, asking misleading questions, questioning him

about his sexual relationship with his wife, making references to petitioner’s father’s criminal

record, accusing petitioner’s father of having molested petitioner, not taping the questioning,

threatening petitioner with additional charges in another county, and compelling him to write

out a second statement admitting to experiencing sexual gratification from touching the minor’s

buttocks and feeling remorse for touching the minor. Even if those techniques were a violation

of some constitutional right, petitioner could have declined to enter a plea of guilty and

challenged at trial any evidence adduced through the techniques. By pleading guilty, he admitted

to the offenses charged and abandoned a challenge to the evidence obtained during the

interrogation. See Wells v. State, 2012 Ark. 308 (per curiam).

       Except for the allegation that the investigator grabbed his wrist, petitioner did not claim

physical abuse or threats of physical abuse, prolonged isolation, sleep deprivation, or prolonged

denial of food or drink or otherwise assert that other such abusive tactics were employed to

coerce a confession. Petitioner did not claim that his plea was coerced in the sense that it was

the result of fear, duress, or threats of mob violence as previously recognized by this court as

cognizable in coram-nobis relief. See, e.g., Hardwick v. State, 220 Ark. 464, 248 S.W.2d 377 (1952).

While there could be little doubt that petitioner felt considerable emotional pressure during the

interrogation, he did not contend that there was a specific act that rendered him unable to make

a voluntary, intelligent decision to enter a plea of guilty, and he failed to offer any substantiation



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that he was subjected to any specific mistreatment. See Pierce v. State, 2009 Ark. 606 (per curiam).

That is, he did not argue that he was somehow coerced into appearing before the court and

entering his plea. Petitioner could have made his attorney aware of every aspect of the

interrogation and opted to stand trial rather than entering a plea. Petitioner’s claims did not rise

to the level of coercion required to demonstrate that a writ of error coram nobis should issue.

See Demeyer v. State, 2013 Ark. 456 (per curiam)(citing McClure v. State, 2013 Ark. 306(per curiam);

see also Pierce, 2009 Ark. 606.

        The allegation concerning evidence hidden from the defense was based on petitioner’s

claim that he wrote two statements, the first of which was not made available to the defense.

While he contended that the police attempted to cover up the first statement because it did not

incriminate him, he conceded that the first statement was in his possession while he was

incarcerated after the interrogation. He contended that he could not locate the first statement

due to his property being stored. It is this first statement that petitioner labeled in his coram-

nobis petition “newly discovered evidence.” Petitioner also contended that a photocopied

document that he was shown during questioning, which was said to contain pictures of evidence

to be sent to the Arkansas State Crime Laboratory, was not given to the defense and that his

attorney was not told that the evidence collected was never sent to the laboratory. He argued

that his attorney would not have led him into entering a plea of guilty if counsel had known that

the evidence had not gone to the laboratory.

        Based on a consideration of the allegations raised in the petition, the trial court did not

err in declining to issue the writ based on the assertion that evidence was hidden from the



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defense. Failure to disclose evidence to the defense is a violation of Brady v. Maryland, 373 U.S.

83 (1963). Suppression of material exculpatory evidence by a prosecutor falls within one of the

four categories of coram-nobis relief. Pitts, 336 Ark. 580, 986 S.W.2d 407. The Supreme Court

in Brady held that “the suppression by the prosecution of evidence favorable to an accused upon

request violates due process where the evidence is material to guilt or punishment, irrespective

of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87. In Strickler v. Greene,

527 U.S. 263 (1999), the Court revisited Brady and declared that evidence is material “if there is

a reasonable probability that, had the evidence been disclosed to the defense, the result of the

proceeding would have been different.” 527 U.S. at 280 (quoting United States v. Bagley, 473 U.S.

667, 682 (1985)). In Strickler, the Court also set out the three elements of a true 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; and (3) prejudice must have ensued. Strickler, 527 U.S. 263; Buchanan v. State,

2010 Ark. 285 (per curiam).

       Here, petitioner admits that he had the first written statement in his possession while he

was incarcerated and that it was later located apparently among material he had in storage.

Clearly, it was not hidden from the defense. As to the photocopied document that was alleged

to contain a list of the evidence to be submitted to the Arkansas State Crime Laboratory,

petitioner knew of the document because he said it was shown to him. He could, therefore,

have told his attorney about it if it was of value to the defense. Moreover, he failed to meet his

burden of establishing that he was prejudiced by any conduct of the prosecution with respect



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to the document. In short, the petition filed in the trial court did not demonstrate a Brady

violation in that there was no fact cited by petitioner that could not have been known at the time

the plea was entered. Where the defense could have been aware of the facts at the time of trial,

those facts are not sufficient to support grounds for the issuance of the writ. Jackson v. State,

2010 Ark. 81 (per curiam); see also Demeyer, 2013 Ark. 456.

       Motion denied.

       Robert E. Bannister, pro se petitioner.

       No response.




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