Opinion
CR 08-262
Opinion Delivered February 25, 2010
Appeal from Circuit Court of Crittenden County, CR 2006-528, Hon. Cindy Thyer, Judge; Motion to Withdraw as Appellate Counsel, Affirmed; Motion Granted.
In 2006, appellant Willie Clarence McLeod entered a plea of guilty to terroristic threatening in the first degree. He was sentenced to probation for a period of thirty-six months, fined $1,000, and ordered to pay certain costs. In 2007, the State filed a petition to revoke probation. Appellant was taken into custody and subsequently filed in the trial court a pro se "Emergency Petition for Writ of Habeas Corpus/Alternative Writ of Mandamus." On December 13, 2007, judgment was entered reflecting that the court had granted the State's petition and revoked probation. Appellant was sentenced to a term of sixty months' imprisonment. Counsel for appellant timely filed a notice of appeal on December 11, 2007. On January 10, 2008, the court denied the pro se petition for writ of habeas corpus or mandamus. Appellant timely filed a notice of appeal from that order.
Both notices of appeal were timely in accordance with Rule 2(b)(1) of the Arkansas Rules of Appellate Procedure-Criminal (2009). The rule provides that, "[a] notice of appeal filed after the trial court announces a decision but before the entry of the judgment or order shall be treated as filed on the day after the judgment or order is entered."
Counsel for appellant lodged an appeal from the revocation order and the order that denied the pro se petition in the Arkansas Court of Appeals. He also filed a motion in which he asked to be allowed to withdraw as counsel on the ground that the appeal was wholly without merit. Anders v. California, 386 U.S. 738 (1967), and Arkansas Supreme Court Rule 4-3(k) (2008) set requirements for the withdrawal of counsel for a defendant in a criminal case after a notice of appeal has been filed on the ground that an appeal is without merit. While a "no-merit" brief is typically filed in a direct appeal from a judgment, this court permits the filing of no-merit briefs in postconviction appeals. See Hewitt v. State, 362 Ark. 369, 208 S.W.3d 185 (2005) (per curiam); Brady v. State, 346 Ark. 298, 57 S.W.3d 691 (2001) (per curiam). One of our staff attorneys provided appellant with a copy of the no-merit brief and motion as required by Rule 4-3(k), and appellant submitted pro se points for reversal.
When the case was submitted to the Arkansas Court of Appeals, it was noted that the appeal concerned both the revocation order and the order that denied postconviction relief. As this court has jurisdiction over postconviction appeals pursuant to Rule 1-2(a)(8) of the Rules of the Arkansas Supreme Court, the appeal was certified to this court. We ordered rebriefing after it was determined that the addendum to the brief submitted by counsel was deficient. Counsel submitted a conforming brief, and attempts were made to locate appellant so that he could respond to the new brief with further points for reversal, if he desired to do so, but his current address could not be determined. As appellant could not be located, we will consider the points for reversal filed in response to the original brief as appellant's points in this appeal.
With respect to the revocation of probation, no objections were made in the course of the revocation hearing. Witnesses testified that appellant had failed to make the monthly payments on the fine and costs imposed, the regular payment of which was a condition of his release on probation. He further failed to report to his probation officer and to make known to officials his current address. Appellant also tested positive during the probationary period for ingestion of controlled substances.
In his points for reversal, appellant argues that the evidence was insufficient to support the terroristic threatening charge to which he had pleaded guilty. He further complains that the arrest report in his case was false, that the felony information was inadequate, and that he was not afforded effective assistance of counsel in the plea proceeding. The issue in the instant appeal, however, is whether the revocation order should be upheld, not whether the appellant's guilty plea was proper. Any claims appellant desired to raise as to the guilty plea could, and should, have been raised in a timely petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2009); Buckhanna v. State, 2009 Ark. 490 (per curiam) (citing Jackson v. State, 352 Ark. 359, 105 S.W.3d 352 (2003) (citing Strickland v. Washington, 466 U.S. 668 (1984)). In a revocation proceeding, the burden is on the State to prove a violation of a condition of probation by a preponderance of the evidence. Davis v. State, 368 Ark. 351, 246 S.W.3d 433 (2007). On appeal, the trial court's findings will be upheld unless they are clearly against a preponderance of the evidence. Id. As a determination of a preponderance of the evidence turns on the question of credibility and the weight to be given testimony, we defer to the trial court's superior position to resolve those matters. Seamster v. State, 2009 Ark. 258. From our consideration of the record, briefs, and appellant's points for reversal, we find no cause to reverse the trial court's determination that appellant violated the terms of probation and was thus subject to imposition of the sentence imposed.
In regards to the pro se petition for writ of habeas corpus and mandamus, the court considered it primarily as an untimely Rule 37.1 petition because it raised allegations cognizable under the rule. A circuit court may treat any petition raising claims that are properly addressed in a petition for postconviction relief as a petition under Rule 37.1, regardless of the label given it by the petitioner. Pierce v. State, 2009 Ark. 606 (per curiam) (citing State v. Wilmoth, 369 Ark. 346, 255 S.W.3d 419 (2007)). Considered as a Rule 37.1 petition, the petition was indeed untimely.
A petitioner under the rule who entered a plea of guilty is required to seek relief under the statute within ninety days from the date that the judgment was entered. Ark. R. Crim. P. 37.2(c) (2009); Wilmoth, 369 Ark. 346, 259 S.W.3d 419; see also Lauderdale v. State, 2009 Ark. 624 (per curiam). The judgment of conviction in appellant's case was entered on June 24, 2006, but his petition challenging it was not filed until November 26, 2007, more than one year later. Time limitations imposed in Rule 37.2(c) are jurisdictional in nature, and if they are not met, a trial court lacks jurisdiction to grant postconviction relief. See Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989); see also Buckhanna, 2009 Ark. 490.
Even if the petition were considered as a petition for writ of habeas corpus or mandamus, it clearly warranted no relief. The burden is on the petitioner in a petition for writ of habeas corpus to establish that the trial court lacked jurisdiction or that the commitment was invalid on its face; otherwise, there is no basis for a writ to issue. Young v. Norris, 365 Ark. 219, 226 S.W.3d 797 (2006) (per curiam). The petitioner must plead either the facial invalidity or the lack of jurisdiction and make a "showing by affidavit or other evidence, [of] probable cause to believe" he is illegally detained. Id. at 221, 226 S.W.3d at 798-99.
Appellant did not contend in his petition that the trial court lacked jurisdiction or that the commitment was facially invalid. Rather, he asserted that he did not enjoy effective assistance of counsel in the plea proceeding, that his arrest was illegal, that the felony information was invalid, and that the evidence was insufficient to sustain the conviction in his case. None of the claims called into question the jurisdiction or validity of the commitment.
Finally, appellant stated no ground for a writ of mandamus to issue. The purpose of a writ of mandamus is to enforce an established right or to enforce the performance of a duty. Higgins v. Proctor, 2009 Ark. 496 (per curiam) (citing Manila Sch. Dist. No. 15 v. Wagner, 357 Ark. 20, 159 S.W.3d 285 (2004)). A petitioner must show a clear and certain right to the relief sought, and the absence of any other adequate remedy when requesting a writ of mandamus. Id.; see also Johnson ex rel. T J. v. Hargrove, 362 Ark. 649, 210 S.W.3d 79 (2005). Appellant here stated no basis for the writ.
Affirmed; motion granted.