ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

NOVEMBER 6, 2003

BUFFORD McDONALD

v.

STATE OF ARKANSAS

Appellee

CR 02-1317

APPEAL FROM THE CIRCUIT COURT OF POPE COUNTY, CR 98-104, HONORABLE JOHN S. PATTERSON, JUDGE

AFFIRMED

Per Curiam

Appellant pled guilty to rape, and the trial court sentenced him to twenty years' imprisonment. Appellant later sought postconviction relief pursuant to Ark. R. Cr. P. 37, but the trial court denied his petition. On appeal, this court held that appellant's abstract was fatally deficient, and we affirmed the denial of the petition. McDonald v. State, CR 00-710 (Ark. Nov. 15, 2001).

Appellant subsequently filed a petition for writ of error coram nobis. As grounds for the writ, appellant contended that he was coerced into entering his plea, that he was denied a fair trial and plea hearing, that he was actually innocent of the crime, and that he was denied due process and equal protection of the law in violation of the United States Constitution and the Arkansas Constitution. Additionally, his petition could be read to raise claims of ineffective assistance of counsel and to allege a speedy trial violation. The circuit court denied the petition. Appellant then filed an amended petition, which also was denied. On appeal, appellant contends that the circuitcourt erred in denying his petition, and erred in failing to hold an evidentiary hearing. We affirm.

A writ of error coram nobis is an extraordinarily rare remedy, more known for its denial than its approval. Cloird v. State, 349 Ark. 33, 37, 76 S.W.3d 813, 815 (2002). The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Id. 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. Id. Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Id.

A writ of error coram nobis is not a substitute for a postconviction petition pursuant to Ark. R. Cr. P. 37. Larimore v. State, 327 Ark. 271, 277, 938 S.W.2d 818, 821 (1997). A Rule 37 proceeding is for a mistake at trial, while a writ of error coram nobis is appropriate when an issue was not addressed or could not have been addressed at trial because it was somehow hidden or unknown. Id.

Of the claims raised by appellant in his petition, only his claim that his guilty plea was coerced is in the four categories of error for which a writ of error coram nobis is available. Appellant alleged in his petition that he was hallucinating and disoriented due to improper treatment of his hypoglycemia by jail personnel, whom he alleged denied him extra meals as prescribed by his doctor. Appellant stated that he represented himself at trial, and according to him, he reached the height of mental instability during the lunch break. He claimed that "someone" recognized his condition and escorted him into the trial judge's chambers during lunch to take advantage of his condition. There, appellant stated that the public defender became involved in his case without his consent, and repeatedly advised him to take the plea offer. Appellant further claimed that the trial judge was aware of his condition, and that his questions contained threats and promises to enter a plea. Appellant also alleged that the court reporter refused to transcribe the plea and sentencing proceedings in an effort to conceal any threats made against him.

We first note that the record on appeal does not contain a plea statement and waiver, plea agreement, or a transcript of any plea hearing taking place in open court or the trial judge's chambers. This alone is reason to affirm the trial court's ruling. See Coulter v. State, 343 Ark. 22, 32, 31 S.W.3d 826, 832 (2000). It is well settled that the appellant bears the burden of producing a record that demonstrates error, and that we do not consider matters outside of the record on appeal. E.g., Miles v. State, 350 Ark. 243, 250, 85 S.W.3d 907, 912 (2002).

This court has consistently held, however, that an appeal of the denial of postconviction relief will not be permitted to go forward where it is clear that the appellant could not prevail. Pardue v. State, 338 Ark. 606, 607, 999 S.W.2d 198, 199 (1999). This appeal presents such a situation.

The writ of error coram nobis serves to fill a gap in the legal system and will provide relief after a plea of guilty only where a remedy was unavailable because a fact exists which was not known when the plea of guilty was entered. Williams v. State, 289 Ark. 385, 387, 711 S.W.2d 479, 481 (1986). The function of the writ of coram nobis 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. State v. Larimore, 341 Ark. 397, 406, 17 S.W.3d 87, 93 (2000). The classic example being material evidence withheld by the prosecution discovered by the defendant after his conviction that creates a reasonable probability that the result of the trial would have been different had the evidence been disclosed prior to trial. See Dansby v. State, 343 Ark. 635, 637, 37 S.W.3d 599, 601 (2001). Moreover, due diligence is required in making application for relief, and, in the absence of a valid excuse for delay, the petition will be denied. Larimore, 341 Ark. at 407, 17 S.W.3d at 93. A circuit court is not required to accept the allegations in a petition for writ of error coram nobis at face value. Id.

Here, appellant was obviously aware of his alleged medical condition, and he had opportunity to make the trial court aware of it prior to the start of his trial, during his trial, or in the meeting in the trial judge's chambers. Thus, appellant's allegations of coercion fail to state any fact that was unknown by him when he entered his plea of guilty. Accordingly, the circuit court did not err in refusing to hold a hearing, and we affirm the order of the circuit court's order denying the petition. 

Affirmed.