ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

JUNE 27, 2002

TONY STRINGFELLOW

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 02-328

PRO SE MOTION TO FILE BELATED PETITION FOR WRIT OF CERTIORARI [CIRCUIT COURT OF CLARK COUNTY, NO. CR 98-168, HON. JOHN A. THOMAS, JUDGE]

MOTION DENIED

In 1999, Tony Stringfellow entered a plea of guilty to two counts of sexual abuse in the first degree and possession of visual or print medium depicting sexually explicit conduct involving a child. An aggregate sentence of 360 months' imprisonment was imposed. On May 21, 2001, Stringfellow filed a pro se petition for writ of error coram nobis in the trial court. The petition was denied, and petitioner Stringfellow filed a notice of appeal from the order rather than a petition for writ of certiorari in this court which was the proper avenue to seek review of the denial of an coram nobis action at the time the order was entered.1 See Larrimore v. State, 327 Ark. 271, 938 S.W.2d 818 (1997), citing Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984). Petitioner took no further action in this court, until he was notified that the circuit clerk had forwarded the record to this court in response to the notice of appeal. Now before us is petitioner's motion seeking to be permitted to proceed with a review of the court's decision to deny the coram nobis petition. Finding that petitioner failed to state a ground in the petition filed in the trial court on which a writ of error coram nobis could be issued, we deny leave to proceed.

Petitioner Stringfellow stated in the petition filed in the trial court that all the grounds raised in the petition for writ of error coram nobis were known to him at the time he pleaded guilty, but he was denied the opportunity to raise the grounds in a timely petition for postconviction relief pursuant to Criminal Procedure Rule 37 by his attorney and the court reporter who did not make a transcript of the guilty plea hearing availing to him. He argues that because he was unable to proceed under Rule 37 in a timely manner, there is a "gap" in the legal system and he should be allowed to proceed with a petition for writ of error coram nobis for that reason.

Petitioner has misconstrued what constitutes a gap in the legal system. While we have said that error coram nobis proceedings fill a gap, we did not refer to errors that the petitioner was aware of at the time of trial, but rather 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 v. State, 336 Ark. 580, 986 S.W.2d 407 (1999), citing Penn, supra). Alleged errors that the petitioner concedes were known to him at the time of trial are not cognizable in a coram nobis proceeding because such grounds could have been raised in the trialcourt or in a timely petition for postconviction relief pursuant to Criminal Procedure Rule 37. See McArty v. State, 335 Ark. 445, 983 S.W.2d 418 (1998). Petitioner failed to raise the grounds advanced in the coram nobis petition when he could have done so and has failed to show that there is any good cause to permit him to proceed further in this matter.

Motion denied.

1 In Magby v. State, 348 Ark. ___(April 25, 2002), we held that the review of all orders denying coram nobis relief entered on or after April 25, 2002, would be by appeal rather than by writ of certiorari.