Swanigan v. State
485 S.W.3d 695
Ark.
2016
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Terry SWANIGAN, Petitioner v. STATE of Arkansas, Respondent.

No. CR-93-1127

Supreme Court of Arkansas.

March 10, 2016

2016 Ark. 109

Because of this, the court concluded that Sandrelli and his counsel must have agreed, pre-trial, that no witnesses would be called. This finding is clearly erroneous because there were no facts before the court to support it. Generally, the decision to call a witness is a matter of trial strategy. See . Still, such strategic decisions must be supported by reasonable professional judgment. Based on the record in this case, the court had no way of knowing whether counsel‘s decisions were based on his reasonable judgement without a hearing.

In addition, the record fails to conclusively show that counsel‘s failure to call additional witnesses resulted in no prejudice. The circuit court addressed this point by stating that counsel‘s failure to call character witnesses did not create a reasonable probability of a different outcome. But this ruling contradicts the facts of this case, which are unusual because a “control” case already exists. In Sandrelli‘s first trial, the jury failed to reach a verdict; in the second trial, the jury convicted. In the first trial, the defense offered a robust case, with five character witnesses and the defendant‘s own testimony; but in the second trial, the defense offered no case at all. Thus, Sandrelli has a colorable claim that he was prejudiced because in the first trial there was, in fact, a different outcome.

Again, this appeal presents an unusual case because the first jury trial resulted in a hung jury. Despite this outcome, Sandrelli‘s counsel called no witnesses in the second trial. This decision must be supported by reasonable professional judgment. The record and files do not conclusively show that it was. Therefore, we reverse and remand for the circuit court to hold a hearing to determine whether counsel‘s failure to call witnesses was based on reasonable judgment and, if not, whether this failure prejudiced Sandrelli.

Affirmed in part; reversed and remanded in part.

Danielson, J., concurs.

Paul Danielson, Justice, concurring.

I concur in the disposition of this case. However, I would reverse and remand for an evidentiary hearing for the simple reason that the petition and record do not conclusively show that Sandrelli is entitled to no relief on his claim that his trial counsel did not consult him before deciding that he would not testify. See Ark. R.Crim. P. 37.3; . It is well settled that an accused has the right to choose whether to testify in his own behalf and that counsel may only advise the accused in making this decision. See, e.g., (per curiam). Without an evidentiary hearing, we cannot conclusively determine whether counsel‘s performance on this issue was deficient and, if so, whether it prejudiced the defense.

PER CURIAM

Petitioner Terry Swanigan was charged with capital murder in the 1992 shooting death of Lewis Allen. The evidence at trial reflected that Swanigan had confronted Allen inside a shop and pointed a gun at Allen‘s face. Swanigan and Allen struggled for possession of the gun. Allen fell backwards during the struggle, and Swanigan fired the gun three times. One of the shots struck Allen, who ran outside, collapsed, and later died. In 1993, Swanigan was tried before a jury and found guilty of murder in the first degree. He was sentenced to life imprisonment. We affirmed. .

In 2002, Swanigan filed in this court a pro se petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis. The petition for leave to proceed in the trial court is necessary because the trial court can entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal only after we grant permission. . A writ of error coram nobis is an extraordinarily rare remedy. . Coram-nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. The function of the writ is to secure relief from a judgment rendered while there existed some fact that would have prevented its rendition had it been known to the trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition of the judgment. . The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. .

The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. A writ of error coram nobis is available for addressing certain errors that are found in one of four categories: (1) insanity at the time of trial, (2) a coerced guilty plea, (3) material evidence withheld by the prosecutor, or (4) a third-party confession to the crime during the time between conviction and appeal. .

We denied Swanigan‘s petition because it did not establish a ground for the writ. (unpublished per curiam). In 2015, Swanigan filed a second coram-nobis petition here. In the petition, he alleged that a writ of error coram nobis should be issued on the grounds that the prosecution in his case violated , and because the State used “false testimony” to obtain the conviction. The second petition was also denied. .

On February 9, 2016, Swanigan filed a third coram-nobis petition, which is now before us. In the petition, Swanigan reiterates the claims raised in the second petition that this court denied in 2015.

We find that the instant petition is an abuse of the writ because Swanigan has already raised essentially the same claims in his second petition; accordingly this third petition is subject to dismissal on that basis. ; see also . Swanigan does not allege that he has obtained any new information concerning the allegations since he filed his second coram-nobis petition, and he offers no explanation for his failure to raise any claim he desired to raise concerning the allegations in the second petition. Because Swanigan has alleged no fact sufficient to distinguish his claims in the instant petition from the claims in the second petition, his reassertion of largely the same claims is a misuse of the remedy. See ; see also (res judicata did not apply to bar a second petition for writ of error coram nobis, but abuse-of-writ doctrine was applied to subsume res judicata).

In , we noted that a court has the discretion to determine whether the renewal of a petitioner‘s application for the writ, when there are additional facts presented in support of the same grounds, will be permitted. As stated, there are no additional facts to distinguish this latest petition from the second petition filed by Swanigan. Swanigan has raised no cognizable ground for the writ in any of his three petitions. More importantly, he has reiterated in this latest petition claims already addressed by this court. Due process does not require this court to entertain an unlimited number of petitions to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis in a particular case. , 469 S.W.3d 356, 360.

Petition dismissed.

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