WILLIE CLARENCE MCLEOD V. STATE OF ARKANSASWILLIE CLARENCE MCLEOD V. STATE OF ARKANSAS
PER CURIAM
In 2006, appellant Willie Clarence McLeod entered a plea of guilty to terroristic threatening in the first degree. He was sentenced to probation for a period of thirty-six months, fined $1000, and ordered to pay certain costs. In 2007, the State filed a petition to revoke probation. Appellant was taken into custody and subsequently filed in the trial court a pro se “Emergency Petition for Writ of Habeas Corpus/Alternative Writ of Mandamus.” On December 13, 2007, judgment was entered reflecting that the court had granted the State‘s petition and revoked probation. Appellant was sentenced to a term of sixty months’ imprisonment. Counsel for appellant timely filed a notice of appeal on December 11, 2007. On January 10, 2008, the court denied the pro se petition for writ of habeas corpus or mandamus. Appellant timely filed a notice of appeal from that order.1
When the case was submitted to the Arkansas Court of Appeals, it was noted that the appeal concerned both the revocation order and the order that denied postconviction relief. As this court has jurisdiction over postconviction appeals pursuant to
In his points for reversal, appellant argues that the evidence was insufficient to support the terroristic-threatening charge to which he had pleaded guilty. He further complains that the arrest report in his case was false, that the felony information was inadequate, and that he was not afforded effective assistance of counsel in the plea proceeding. The issue in the instant appeal, however, is whether the revocation order should be upheld, not whether the appellant‘s guilty plea was proper. Any claims appellant desired to raise as to the guilty plea could, and should, have been raised in a timely petition for postconviction relief pursuant to
In regard to the pro se petition for writ of habeas corpus and mandamus, the court considered it primarily as an untimely Rule 37.1 petition because it raised allegations cognizable under the rule. A circuit court may treat any petition raising claims that are properly addressed in a petition for postconviction relief as a petition under Rule 37.1, regardless of the label given it by the petitioner. Pierce v. State, 2009 Ark. 606 (per curiam) (citing State v. Wilmoth, 369 Ark. 346, 255 S.W.3d 419 (2007)). Considered as a Rule 37.1 petition, the petition was indeed untimely.
A petitioner under the rule who entered a plea of guilty is required to seek relief under the statute within ninety days from the date that the judgment was entered.
Even if the petition were considered as a petition for writ of habeas corpus or mandamus, it clearly warranted no relief. The burden is on the petitioner in a petition for
Appellant did not contend in his petition that the trial court lacked jurisdiction or that the commitment was facially invalid. Rather, he asserted that he did not enjoy effective assistance of counsel in the plea proceeding, that his arrest was illegal, that the felony information was invalid, and that the evidence was insufficient to sustain the conviction in his case. None of the claims called into question the jurisdiction or validity of the commitment.
Finally, appellant stated no ground for a writ of mandamus to issue. The purpose of a writ of mandamus is to enforce an established right or to enforce the performance of a duty. Higgins v. Proctor, 2009 Ark. 496 (per curiam) (citing Manila Sch. Dist. No. 15 v. Wagner, 357 Ark. 20, 159 S.W.3d 285 (2004)). A petitioner must show a clear and certain right to the relief sought, and the absence of any other adequate remedy when requesting a writ of mandamus. Id.; see also Johnson ex rel. T J. v. Hargrove, 362 Ark. 649, 210 S.W.3d 79 (2005). Appellant here stated no basis for the writ.
Affirmed; motion granted.
C. Brian Williams, for appellant.
Dustin McDaniel, Att‘y Gen., by: Karen Virginia Wallace, Ass‘t Att‘y Gen., for appellee.