ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

OCTOBER 16, 2003

MICHAEL DILWORTH

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 02-1016

APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY, NO. CR 97-2897, HONORABLE MARION HUMPHREY, JUDGE

AFFIRMED

Per Curiam

Appellant was convicted of two counts of rape and sentenced as a habitual offender to a total of twenty-five years' imprisonment. The Arkansas Court of Appeals affirmed. See Dilworth v. State, CA CR 98-1097 (June 30, 1999). Appellant subsequently filed a pro se petition for postconviction relief pursuant to Ark. R. Crim. P. 37. Following the filing of the petition, the trial court appointed counsel, who amended the petition to include the claim that appellant was entitled to Rule 37 relief because the victim recanted her trial testimony. Appellant also filed in the court of appeals a petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis, claiming that the victim's recantation entitled him to issuance of the writ. Because only this court can grant leave to proceed in the trial court with a petition for writ of error coram nobis after a judgment has been affirmed on appeal, see Larimore v. State, 327 Ark. 271, 938 S.W.2d 818 (1997), we accepted certification of the petition and denied relief, noting that appellant's only remedy was to seek clemency. See Dilworth v. State, CA CR 98-1097 (Ark. Nov. 16, 2000) (per curiam). Appellant sought clemency on the basis of the recantation, which was denied. Following these denials, the trial court conducted a hearing on the Rule 37 petition and denied relief. From that order comes this appeal.

Appellant's point on appeal is that because the victim recanted her trial testimony, he is innocent and entitled to have his convictions set aside and to be discharged from his sentences. In denying appellant's Rule 37 petition, the trial court held that the decision of this court to deny the petition for writ of error coram nobis was the "law of this case." Moreover, the trial court cited Malone v. State, 294 Ark. 127, 132-133, 741 S.W.2d 246, 249 (1987) for the proposition that Rule 37 "provides for collaterally attacking a judgment and was never intended to provide a means to add evidence to the record or refute evidence adduced at trial." It is true that at the Rule 37 hearing, the victim did recant her trial testimony that she was raped by appellant; however, pursuant to our decision in Malone, appellant is not entitled to postconviction relief.

In Malone, we held that Rule 37 does not provide relief when a witness at trial subsequently recants trial testimony. The presentation of evidence which attacks the credibility of a witness at trial, like the recantation of testimony, constitutes a direct attack on the judgement. Id. Rule 37 provides relief only when a sentence imposed by a trial court is subject to collateral attack. Ark. R. Crim. P. 37.1(d); see also Wainwright v. State, 307 Ark. 569, 590, 823 S.W.2d 449, 455 (1992). Appellant acknowledges our holding in Malone but argues that it does not apply to his case because his claim, that he will be deprived of his right to due process if he does not get relief, is a constitutional claim. Appellant may not avoid our holding in Malone by presenting his claim as one of due process. Appellant's claim amounts to an attack on the victim's credibility at trial, which is a direct attack on the judgment and not a basis for Rule 37 relief. Accordingly, we affirm the ruling below.

Affirmed.