ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

DECEMBER 18, 2003

CHAD HILDERBRAND

Appellant

v.

LARRY NORRIS, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION

Appellee

03-982

PRO SE MOTION AND AMENDED MOTION FOR EXTENSION OF TIME TO FILE APPELLANT'S BRIEF [CIRCUIT COURT OF IZARD COUNTY, NO. CIV 2001-30-2, HON. JOHN NORMAN HARKEY, JUDGE]

APPEAL DISMISSED; MOTION AND AMENDED MOTION MOOT

Per Curiam

On March 23, 1998, Chad Hilderbrand entered a plea of nolo contendere in the Circuit Court of Pope County to violating the terms of probation imposed on him as the result of a 1994 conviction for the offense of sexual abuse in the first degree in CR 94-58. He was sentenced to 120 months' imprisonment. He further entered a plea of nolo contendere to sexual abuse in the first degree in CR 96-313 and was sentenced to an additional 120 months' imprisonment. The court ordered that three years of the sentence in CR 96-313 was to be served consecutively to the sentence imposed in CR 94-58 with the remainder to be served concurrently.

Hilderbrand subsequently filed in the trial court a timely pro se petition for postconviction relief pursuant to Criminal Procedure Rule 37 seeking to vacate the judgments. The petition was denied, and Hilderbrand appealed to this court. Although appellant Hilderbrand was granted two extensions of time to file the appellant's brief, the brief was not timely filed and on January 6, 2000, we granted the State's motion to dismiss the appeal.

On March 30, 2001, Hilderbrand filed in the circuit court in the county in which he was incarcerated a petition for writ of habeas corpus. The petition was amended twice. On May 15, 2003, the court denied the relief sought. Hilderbrand has lodged an appeal from that order and now seeks an extension of time to file the appellant's brief.

It is well settled that the burden is on the petitioner in a habeas corpus proceeding to establish that the trial court lacked jurisdiction or that the commitment was invalid on its face; otherwise, there is no basis for a finding that a writ of habeas corpus should issue. Birchett v. State, 303 Ark. 220, 795 S.W.2d 53 (1990). The petitioner must plead either the facial invalidity of the commitment or the lack of jurisdiction and make a "showing, by affidavit or other evidence, [of] probable cause to believe" he is illegally detained. Ark. Code Ann. 16-112-103 (1987). See Wallace v. Willock, 301 Ark. 69, 781 S.W.2d 478 (1989).

The appeal is dismissed as it is clear that appellant Hilderbrand could not succeed on appeal inasmuch as the allegations raised in the habeas petition and amended petitions were not sufficient to demonstrate that the commitment was invalid or that the trial court lacked jurisdiction. The motion and amended motion for extension of time is moot. This court has consistently held 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, 999 S.W.2d 198 (1999); Seaton v. State, 324 Ark. 236, 920 S.W.2d 13 (1996); Harris v. State, 318 Ark. 599, 887 S.W.2d 514 (1994); Reed v. State, 317 Ark. 286, 878 S.W.2d 376 (1994); Chambers v. State, 304 Ark. 663, 803 S.W.2d 932 (1991); Johnson v. State, 303 Ark. 560, 798 S.W.2d 108 (1990); Williams v. State, 293 Ark. 73, 732 S.W.2d 456 (1987).

Appellant contended that the trial court committed a myriad of errors, including sentencing him to 120 months' imprisonment upon revocation of probation in CR 94-58 on the ground that he had already been sentenced to five years' probation in the case. He further argued that the evidence was insufficient to sustain the revocation of probation, that he was denied a speedy trial by the machinations of the prosecutor, that the plea was not voluntarily made, that the court failed to inform him of the consequences of the plea, that there was no written explanation pertaining to the presumptive sentence, and that he was denied effective assistance of counsel.

The claims could have been raised at sentencing or in a petition for postconviction relief

pursuant to Criminal Procedure Rule 37.1. Because none of the claims was sufficient to show that the commitment was facially invalid or that the trial court lacked jurisdiction, the court did not err in declining to issue a writ of habeas corpus.

Appeal dismissed; motion denied.