Cite as 2020 Ark. 175 SUPREME COURT OF ARKANSAS Nos. CR-91-279, CR-91-293
JOHN RICHARD LUKACH Opinion Delivered: April 30, 2020 PETITIONER
V. PRO SE SECOND PETITION TO REINVEST JURISDICTION IN THE STATE OF ARKANSAS TRIAL COURT TO CONSIDER A RESPONDENT PETITION FOR WRIT OF ERROR CORAM NOBIS AND PETITION FOR WRIT OF CERTIORARI; MOTION FOR APPOINTMENT OF COUNSEL; MOTION TO WITHDRAW PETITIONS [HOT SPRING COUNTY CIRCUIT COURT, NOS. 30CR-91-115, 30CR-91- 123, 30CR-91-124, 30CR-91-126]
PETITIONS DENIED; MOTION FOR COUNSEL DENIED; MOTION TO WITHDRAW PETITIONS FOR ERROR CORAM NOBIS AND WRIT OF CERTIORARI MOOT.
RHONDA K. WOOD, Associate Justice
This is John Richard Lukach’s second petition to reinvest jurisdiction in the trial
court to consider a petition for writ of error coram nobis. Lukach has also filed a second
petition for writ of certiorari, a motion for appointment of counsel, and a motion to
withdraw his petitions for error coram nobis and writ of certiorari or in the alternative to amend them.1 Because Lukach is not entitled to either coram nobis relief or issuance of a
writ of certiorari, we deny his petitions and the motion for appointment of counsel. His
motion to withdraw is moot.
I. Background
Lukach was charged with three counts of rape and one count of burglary. The
charges were severed, and he was tried in two separate trials. In his first trial, a Hot Spring
County Circuit Court jury convicted Lukach of the rapes of two girls, ages seven and nine
(case nos. 30CR-91-123 and 30CR-91-124). He was sentenced to two concurrent terms of
life imprisonment. We affirmed. Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992). In
the second trial, Lukach was convicted of the rape of a five-year-old child and burglary and
was sentenced to life plus twenty years’ imprisonment (case nos. 30CR-91-115 and 30CR-
91-126). We affirmed. Lukach v. State, 310 Ark. 38, 834 S.W.2d 642 (1992). Following his
convictions, Lukach filed multiple petitions for postconviction relief, including petitions
pursuant to Arkansas Code Annotated section 16-90-111, two petitions for writs of habeas
corpus, a petition to reinvest jurisdiction in the trial court to consider a petition for writ of
error coram nobis, and a petition for writ of certiorari. We denied the petitions.
II. Writ of Error Coram Nobis
Once a judgment is affirmed on appeal, a trial court cannot proceed with a petition
for writ of error coram nobis unless this court grants permission and reinstates jurisdiction.
1 Lukach subsequently filed an affidavit in support of this motion, and we consider it with the motion.
2 Newman v. State, 2009 Ark. 539, 354 S.W.3d 61. A writ of error coram nobis is an
extraordinarily rare remedy. Id. In coram nobis proceedings, the strong presumption is that
the judgment of conviction is valid. Id. The burden is on petitioner to demonstrate a
fundamental error of fact extrinsic to the record. Id. The writ is allowed only under
compelling circumstances to achieve justice and to address errors of the most fundamental
nature. Id. 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 in violation of Brady v. Maryland, 373 U.S. 83
(1963); or (4) a third-party confession to the crime during the time between conviction and
appeal. Howard v. State, 2012 Ark. 177, 403 S.W.3d 38. The petitioner must specify the
facts relied upon and not merely state conclusions as to the nature of such facts.
McCullough v. State, 2017 Ark. 292, 528 S.W.3d 833. We deny Lukach’s writ of error
coram nobis (1) because he makes arguments we have previously addressed and denied; (2)
because his new allegations are outside the scope of the writ; and (3) because he failed to
meet the essential elements of a Brady violation.
A. Reasserted Claims
Lukach reasserts several claims that he raised in his petition for error coram nobis
relief in Lukach v. State, 2014 Ark. 451 (per curiam). Reassertion of the same claims
without sufficient facts to distinguish them is an abuse of the writ and subjects the petition
to dismissal. Henington v. State, 2020 Ark. 11, 590 S.W.3d 736. The following claims were
already raised and decided by this court; therefore, we summarily dismiss: (1) the Grant 3 County Circuit Court lacked jurisdiction because the State filed the original charge in Hot
Spring County;2 (2) double-jeopardy violation; and (3) lack of jurisdiction based on a
defective information. Lukach, 2014 Ark. 451. We conclude these claims are an abuse of
the writ.
B. Claims Outside the Scope
Assertions of trial error that could have been raised at trial are not within the
limited scope on which the writ may issue. Carner v. State, 2018 Ark. 20, 535 S.W.3d 634.
Several of Lukach’s claims allege trial error which he should have raised at the trial court
proceedings or on direct appeal. Errors of this nature do not fall within the purview of the
writ. Roberts v. State, 2013 Ark. 56, 425 S.W.3d 771. The following claims are excluded
from our review for this reason: (1) speedy trial violation; (2) defective felony information;
and (3) a motion for change of venue was not filed. See Martinez-Marmol v. State, 2018 Ark.
145, 544 S.W.3d 49; Smith v. State, 2018 Ark. 37; McClinton v. State, 2018 Ark. 116, 542
S.W.3d 859; State v. Wilmoth, 369 Ark. 346, 351, 255 S.W.3d 419, 423 (2007). Lukach
insists that he was unaware of the alleged errors cited above but fails to establish that these
errors were concealed and that the defense could not have discovered them at the time of
trial. Therefore, we deny the writ on these claims.
2 This court also addressed and denied relief on this specific issue in Lukach’s habeas petition. See Lukach v. Norris, CR-05-1344 (Ark. Mar. 23, 2006) (unpublished per curiam) (explaining factually that the Hot Spring Circuit Court conducted the trial in Grant County within the same judicial district and the issue raised is one of venue and of trial error).
4 C. Brady Violation
Finally, Lukach alleges a Brady violation because the trial transcript did not include
certain documents when it was lodged in the direct appeal of his convictions. Lukach
appears to allege that the prosecutor withheld these documents, including the information,
the arrest warrant, and notice of an arraignment.
To establish a Brady violation, the petitioner must satisfy three elements: (1) the
evidence at issue must be favorable to the accused, either because it is exculpatory or
because it is impeaching; (2) the evidence must have been suppressed by the State, either
willfully or inadvertently; and (3) prejudice must have ensued. Henington v. State, 2018 Ark.
279, 556 S.W.3d 518. When a petitioner alleges a Brady violation as the basis for his or her
claim of relief in coram nobis proceedings, the facts alleged in the petition must establish
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Cite as 2020 Ark. 175 SUPREME COURT OF ARKANSAS Nos. CR-91-279, CR-91-293
JOHN RICHARD LUKACH Opinion Delivered: April 30, 2020 PETITIONER
V. PRO SE SECOND PETITION TO REINVEST JURISDICTION IN THE STATE OF ARKANSAS TRIAL COURT TO CONSIDER A RESPONDENT PETITION FOR WRIT OF ERROR CORAM NOBIS AND PETITION FOR WRIT OF CERTIORARI; MOTION FOR APPOINTMENT OF COUNSEL; MOTION TO WITHDRAW PETITIONS [HOT SPRING COUNTY CIRCUIT COURT, NOS. 30CR-91-115, 30CR-91- 123, 30CR-91-124, 30CR-91-126]
PETITIONS DENIED; MOTION FOR COUNSEL DENIED; MOTION TO WITHDRAW PETITIONS FOR ERROR CORAM NOBIS AND WRIT OF CERTIORARI MOOT.
RHONDA K. WOOD, Associate Justice
This is John Richard Lukach’s second petition to reinvest jurisdiction in the trial
court to consider a petition for writ of error coram nobis. Lukach has also filed a second
petition for writ of certiorari, a motion for appointment of counsel, and a motion to
withdraw his petitions for error coram nobis and writ of certiorari or in the alternative to amend them.1 Because Lukach is not entitled to either coram nobis relief or issuance of a
writ of certiorari, we deny his petitions and the motion for appointment of counsel. His
motion to withdraw is moot.
I. Background
Lukach was charged with three counts of rape and one count of burglary. The
charges were severed, and he was tried in two separate trials. In his first trial, a Hot Spring
County Circuit Court jury convicted Lukach of the rapes of two girls, ages seven and nine
(case nos. 30CR-91-123 and 30CR-91-124). He was sentenced to two concurrent terms of
life imprisonment. We affirmed. Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992). In
the second trial, Lukach was convicted of the rape of a five-year-old child and burglary and
was sentenced to life plus twenty years’ imprisonment (case nos. 30CR-91-115 and 30CR-
91-126). We affirmed. Lukach v. State, 310 Ark. 38, 834 S.W.2d 642 (1992). Following his
convictions, Lukach filed multiple petitions for postconviction relief, including petitions
pursuant to Arkansas Code Annotated section 16-90-111, two petitions for writs of habeas
corpus, a petition to reinvest jurisdiction in the trial court to consider a petition for writ of
error coram nobis, and a petition for writ of certiorari. We denied the petitions.
II. Writ of Error Coram Nobis
Once a judgment is affirmed on appeal, a trial court cannot proceed with a petition
for writ of error coram nobis unless this court grants permission and reinstates jurisdiction.
1 Lukach subsequently filed an affidavit in support of this motion, and we consider it with the motion.
2 Newman v. State, 2009 Ark. 539, 354 S.W.3d 61. A writ of error coram nobis is an
extraordinarily rare remedy. Id. In coram nobis proceedings, the strong presumption is that
the judgment of conviction is valid. Id. The burden is on petitioner to demonstrate a
fundamental error of fact extrinsic to the record. Id. The writ is allowed only under
compelling circumstances to achieve justice and to address errors of the most fundamental
nature. Id. 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 in violation of Brady v. Maryland, 373 U.S. 83
(1963); or (4) a third-party confession to the crime during the time between conviction and
appeal. Howard v. State, 2012 Ark. 177, 403 S.W.3d 38. The petitioner must specify the
facts relied upon and not merely state conclusions as to the nature of such facts.
McCullough v. State, 2017 Ark. 292, 528 S.W.3d 833. We deny Lukach’s writ of error
coram nobis (1) because he makes arguments we have previously addressed and denied; (2)
because his new allegations are outside the scope of the writ; and (3) because he failed to
meet the essential elements of a Brady violation.
A. Reasserted Claims
Lukach reasserts several claims that he raised in his petition for error coram nobis
relief in Lukach v. State, 2014 Ark. 451 (per curiam). Reassertion of the same claims
without sufficient facts to distinguish them is an abuse of the writ and subjects the petition
to dismissal. Henington v. State, 2020 Ark. 11, 590 S.W.3d 736. The following claims were
already raised and decided by this court; therefore, we summarily dismiss: (1) the Grant 3 County Circuit Court lacked jurisdiction because the State filed the original charge in Hot
Spring County;2 (2) double-jeopardy violation; and (3) lack of jurisdiction based on a
defective information. Lukach, 2014 Ark. 451. We conclude these claims are an abuse of
the writ.
B. Claims Outside the Scope
Assertions of trial error that could have been raised at trial are not within the
limited scope on which the writ may issue. Carner v. State, 2018 Ark. 20, 535 S.W.3d 634.
Several of Lukach’s claims allege trial error which he should have raised at the trial court
proceedings or on direct appeal. Errors of this nature do not fall within the purview of the
writ. Roberts v. State, 2013 Ark. 56, 425 S.W.3d 771. The following claims are excluded
from our review for this reason: (1) speedy trial violation; (2) defective felony information;
and (3) a motion for change of venue was not filed. See Martinez-Marmol v. State, 2018 Ark.
145, 544 S.W.3d 49; Smith v. State, 2018 Ark. 37; McClinton v. State, 2018 Ark. 116, 542
S.W.3d 859; State v. Wilmoth, 369 Ark. 346, 351, 255 S.W.3d 419, 423 (2007). Lukach
insists that he was unaware of the alleged errors cited above but fails to establish that these
errors were concealed and that the defense could not have discovered them at the time of
trial. Therefore, we deny the writ on these claims.
2 This court also addressed and denied relief on this specific issue in Lukach’s habeas petition. See Lukach v. Norris, CR-05-1344 (Ark. Mar. 23, 2006) (unpublished per curiam) (explaining factually that the Hot Spring Circuit Court conducted the trial in Grant County within the same judicial district and the issue raised is one of venue and of trial error).
4 C. Brady Violation
Finally, Lukach alleges a Brady violation because the trial transcript did not include
certain documents when it was lodged in the direct appeal of his convictions. Lukach
appears to allege that the prosecutor withheld these documents, including the information,
the arrest warrant, and notice of an arraignment.
To establish a Brady violation, the petitioner must satisfy three elements: (1) the
evidence at issue must be favorable to the accused, either because it is exculpatory or
because it is impeaching; (2) the evidence must have been suppressed by the State, either
willfully or inadvertently; and (3) prejudice must have ensued. Henington v. State, 2018 Ark.
279, 556 S.W.3d 518. When a petitioner alleges a Brady violation as the basis for his or her
claim of relief in coram nobis proceedings, the facts alleged in the petition must establish
that the evidence withheld was both material and prejudicial such that it would have
prevented the judgment had it been known at the time of trial. Martinez-Marmol, 2018 Ark.
145, 544 S.W.3d 49. Evidence is material if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been
different. Id.
Lukach does not explain how defense counsel’s preparation of the direct-appeal
record and inclusion or exclusion of documents supports his theory that the State withheld
those documents from the defense prior to trial. He does not explain why his counsel was
prevented from obtaining them and including them in the record. Furthermore, the
documents he refers to are public records. Brady does not require the State to conduct 5 research for the defense. See Jefferson v. State, 2017 Ark. 293, 528 S.W.3d 830. Therefore,
public records are not subject to being withheld or suppressed by the State. Wallace v. State,
2018 Ark. 164, 545 S.W.3d 767. Lukach has failed to meet any of the essential
requirements to establish a Brady violation that would entitle him to coram nobis relief.
VI. Writ of Certiorari
There are two requirements that must be satisfied for this court to grant a writ of
certiorari. Pedraza v. Circuit Court of Drew Cty., 2013 Ark. 116, 426 S.W.3d 441. First, there
can be no other adequate remedy but for the writ of certiorari. Id. Second, a writ of
certiorari lies only where (1) it is apparent on the face of the record that there has been a
plain, manifest, clear, and gross abuse of discretion, or (2) there is a lack of jurisdiction, an
act in excess of jurisdiction on the face of the record, or the proceedings are erroneous on
the face of the record. Id.
Lukach argues that we should issue a writ of certiorari on the grounds discussed
above. Lukach is not entitled to the issuance of a writ of certiorari because the arguments
he now makes could have been raised at trial or on direct appeal. As we explained in our
decision to deny Lukach’s first petition, certiorari will not be used for the correction of
trial error when the pursuit of other remedies has been lost due to the fault of the
petitioner. Lukach, 2014 Ark. 451; Gran v. Hale, 294 Ark. 563, 745 S.W.2d 129.
VII. Motion for Appointment of Counsel
The appointment of counsel in postconviction proceedings is discretionary. Lane v.
State, 2019 Ark. 5, at 13, 564 S.W.3d 524, 533. We have held that if an appellant makes a 6 substantial showing that he is eligible for relief in a postconviction appeal and that he
cannot proceed without counsel, we will appoint counsel. Evans v. State, 2014 Ark. 6.
Lukach has not demonstrated merit to his petition for postconviction relief; therefore, he
has not established that he is entitled to appointment of counsel.
Because the court has denied Lukach’s petitions, his motion to withdraw or in the
alternative amend, is moot.
Petitions denied; motion for counsel denied; motion to withdraw petitions for error
coram nobis and writ of certiorari moot.
HART, J., dissents.
JOSEPHINE LINKER HART, Justice, dissenting. I dissent from the majority opinion
because I do not believe this court can prevent Lukach from withdrawing his error coram
nobis petition. Lukach filed a motion to withdraw his petition on February 27, 2020—well
before this matter was submitted for decision by this court. The majority denies Lukach’s
petition on the merits and declares that his motion to withdraw is therefore moot, but this
goes out of order. Instead, we should first address his motion to withdraw, grant it because
there is no good reason not to, and then declare his petition moot.
I dissent.
John R. Lukach, pro se petitioner.
Leslie Rutledge, Att’y Gen., by: Christopher R. Warthen, Ass’t Att’y Gen., for appellee.