Guy v. StateGuy v. State
PRO SE MOTION TO REQUEST PERMISSION TO FILE MOTION TO SUBMIT EVIDENCE [CRITTENDEN COUNTY CIRCUIT COURT, CR 95-632, HON. RALPH WILSON, JR., JUDGE]
MOTION DENIED; APPEAL DISMISSED.
PER CURIAM
In 1996, appellant Bennie David Guy entered a negotiated plea of guilty to rape in Crittenden County Circuit Court. The trial court imposed a sentence of 600 months’ imprisonment. In 2007, appellant filed in the trial court a petition for writ of habeas corpus that asserted his actual innocence, that alleged that his attorney had withheld from him DNA test results exculpating him, and that sought relief under Act 1780 of 2001 Acts of Arkansas, as amended by Act 2250 of 2005 and codified as
Subsequently, the court ordered that some evidence in the case be retested. Following a hearing, the trial court denied further relief and provided a written order with findings of
The document that appellant would have this court consider is of dubious relevance to the proceedings on appeal. Appellant asserts that the document concludes that there was a violation of the requirements of Brady v. Maryland, 373 U.S. 83 (1963), in a case in another county in which appellant was also convicted of sexual assault of the same victim in the case before us. The information is not presented as published, and appellant does not assert that it was taken into consideration by the court below. This court has long and consistently held that it cannot, in the exercise of its appellate jurisdiction, receive testimony or consider anything outside of the record below. Smith v. Brownlee, 2010 Ark. 266 (per curiam).
Appellant‘s claims in his petitions centered on DNA evidence, available at the time of trial, that he claimed exonerated him. Appellant testified at the hearing on the petition that trial counsel would not show him copies of the reports on the DNA tests that had been conducted and that, when appellant asked to see the results, counsel said that he could not show appellant the results because of court rules. Appellant also testified that counsel had said that the test results indicated that appellant was the rapist and that appellant should plead guilty. At the hearing on appellant‘s petition, counsel testified that he was hired by appellant‘s family only to assist appellant in entering a plea; that appellant had copies of the DNA test results that he showed counsel and retained; that counsel advised appellant that the DNA results did not implicate him, but that the results also did not exonerate him; and that he would not have advised appellant to plead guilty if appellant maintained his innocence.
The trial court‘s findings of fact make clear that counsel‘s testimony was more credible and that the court accepted counsel‘s account. This court does not assess the credibility of the witnesses. Loggins v. State, 2010 Ark. 414, 372 S.W.3d 785; Lacy v. State, 2010 Ark. 388, 377 S.W.3d 227; Fernandez v. State, 2010 Ark. 148, 362 S.W.3d 905. Conflicts in testimony are
In addition to counsel‘s testimony, during the hearing on the petition, the trial court received evidence and testimony concerning new tests performed on samples taken from the victim and her clothing. The testimony was that, although there was DNA found on the samples and appellant was excluded as the source of that DNA, the samples were not sufficient for the testing to have tied the perpetrator to the crime. Although semen was found on the vaginal swabs, neither the swabs nor the underwear cuttings contained Y-chromosomal DNA. The experts testified that there were reasonable explanations for a lack of sperm in the samples, and that the exclusion of appellant as a contributor of the DNA did not necessarily exclude him as the offender.1
Appellant first sought a writ of error coram nobis. The standard of review of a denial of a petition for writ of error coram nobis is whether the circuit court abused its discretion in denying the writ. Benton v. State, 2011 Ark. 211 (per curiam); Williams, 2011 Ark. 203; Pierce v. State, 2009 Ark. 606 (per curiam). An abuse of discretion occurs when the circuit court acts arbitrarily or groundlessly. McCoy v. State, 2011 Ark. 13 (per curiam).
Appellant‘s claim for the writ was based on his assertion that his plea was coerced. To the extent that he alleged that information was withheld, he did not allege that the information was withheld from the defense by the prosecution. Instead, he alleged that the information was withheld by trial counsel as a part of the effort to coerce him into a guilty plea. The trial court found that appellant‘s testimony concerning what transpired in his meetings with counsel was not credible and specifically accepted counsel‘s version of events in its findings of fact. As a consequence, the facts supported a basis for denial of the writ, and the court did not abuse its discretion in finding that appellant was not coerced into entering a guilty plea.
As for appellant‘s claim under Act 1780, the court found that identity was not at issue and that appellant therefore failed to file a petition upon which relief could be granted. This
Appellant asserted that his claim fell within
Motion denied; appeal dismissed.