ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

MARCH 8, 2001

JERRY L. NEWTON

Petitioner

v.

STATE OF ARKANSAS

Respondent

CACR 99-1293

PRO SE PETITION FOR LEAVE TO PROCEED IN CIRCUIT COURT WITH PETITION FOR WRIT OF ERROR CORAM NOBIS [CIRCUIT COURT OF JEFFERSON COUNTY, CR 98-18-2]

PETITION DENIED

In 1996, a man was struck and killed by pick-up truck while jogging in Pine Bluff. Jerry

A. Newton was ultimately found guilty in the incident of manslaughter and leaving the scene of a personal- injury accident. He was sentenced to ten years' imprisonment. An additional prison term of six years was suspended, and Newton was also fined $20,000. The court of appeals affirmed. Newton v. State, CACR 99-1293 (June 28, 2000).

Newton now asks that this court reinvest the trial court with jurisdiction to consider a petition for writ of error coram nobis in the case. The petition for leave to proceed in the trial court is necessary because the circuit court can entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal only after we grant permission.1 ··²TopOfPage²····²TopOfPage²··-

A writ of error coram nobis is an extraordinarily rare remedy, more known for its denial than its approval. 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. Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984); Pitts v. State, 336 Ark. 580, 986 S.W.2d 407 (1999). We have held that a writ of error coram nobis was available to address certain errors of the most fundamental nature 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. Pitts, supra. When determining whether a petitioner is entitled to relief as a result of material evidence withheld by the prosecutor, the petitioner must demonstrate that there is a reasonable probability that the judgment of conviction would not have been rendered, or would have been prevented, had the evidence been disclosed at trial. Larimore, supra.

A mere claim of newly discovered evidence in itself is not a basis for relief under coram nobis. Smith v. State, 301 Ark. 374, 784 S.W.2d 595 (1990). Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. After reviewing the instant petition, we do not find that petitioner Newton has stated any ground sufficient for this court to grant leave to proceed with a petition for writ of error coram nobis in the trial court.

Petitioner contends that he is entitled to error coram nobis relief on the ground that the State withheld evidence from the defense at trial. The evidence that petitioner alleges was not disclosed to the defense pertained to two persons who testified at trial: Dr. Frank Peretti, the forensic pathologist who performed the autopsy on the victim, and William Acklin who testified about motor vehicle parts.

Petitioner filed a motion for new trial after he was convicted in which he argued that the State had improperly withheld exculpatory evidence in the testimony of Peretti and Acklin. On appeal, the court of appeals found no abuse of discretion on the trial court's part in denying the motion and declined to reverse the judgment.

Six months after he was convicted, petitioner filed in the trial court a motion to reconsider the motion for new trial based on the allegation that newly discovered evidence revealed Acklin's testimony to have been inaccurate and misleading and that the Pine Bluff Police Department had not disclosed its evidence log concerning the bumper. Petitioner reasserts in the instant petition the claims raised in the motion for reconsideration.

There is a distinction between fundamental error and newly discovered evidence. Before a writ of error coram nobis may issue it must appear that the facts as alleged as grounds for its issuance are such that there is a reasonable probability that the judgment of conviction would not have been rendered, or would have been prevented, had the exculpatory evidence been disclosed at trial, not that the newly discovered evidence might have produced a different result had it been known to judge and jury. Larimore, supra. The allegations raised by petitioner as newly discovered exculpatory evidence are not of such fundamental nature that it can be said that there is a reasonable probability that the judgment would not have been rendered had the information been brought out at trial, especially in view of the evidence that petitioner told one person he had struck and run over a person, that following the time of the accident he had an injury to his arm for which he gave differing explanations, and that he lied to police concerning whether his truck had ever had front-end damage. Petitioner has not demonstrated that there was some suppression by the State of exculpatory evidence that could not have been known to the petitioner during thetrial or that a fundamental error extrinsic to the record occurred.

Petition denied.

1 For clerical purposes, the petition was filed under the docket number assigned to the direct appeal of the judgment in the court of appeals.