Kwasi McKinney v. State of Arkansas

2021 Ark. 210

• Court: Supreme Court of Arkansas
• Decided: November 12, 2021
• Status: Published

Opinion

Reason: I attest to the accuracy and integrity of this document Date: 2022.06.07 Cite as 2021 Ark. 210 15:54:31 -05'00' Adobe Acrobat SUPREME COURT OF ARKANSAS version: No. CR-18-546 2022.001.20117

Opinion Delivered: November 12, 2021 KWASI MCKINNEY PETITIONER PRO SE FOURTH PETITION TO V. REINVEST JURISDICTION IN THE TRIAL COURT TO CONSIDER A STATE OF ARKANSAS PETITION FOR WRIT OF ERROR RESPONDENT CORAM NOBIS [COLUMBIA COUNTY CIRCUIT COURT, NO. 14CR-16-35]

PETITION DENIED.

ROBIN F. WYNNE, Associate Justice

Petitioner Kwasi McKinney brings this pro se petition to reinvest jurisdiction in the

trial court to allow him to file a petition for writ of error coram nobis in his criminal case.

It is the fourth such petition filed by McKinney in this court. In the petition, McKinney

alleges that the writ should issue because (1) he was mentally ill at the time of trial because

he was forced to go to trial with a defense attorney who admitted that he (counsel) was not

ready for trial; (2) his trial attorney did not afford him effective assistance of counsel; (3) the

trial court erred by not permitting counsel to withdraw before trial and by not holding a

hearing on the prejudice that McKinney suffered by not being able to communicate with

counsel; (4) his inability to communicate with counsel amounted to a conflict of interest

that prevented him from having a rational or factual understanding of the trial proceedings,

and thus, he was rendered incompetent to stand trial. Because the claims raised by McKinney

do not establish a ground for the writ, the petition is denied. I. Nature of the Writ

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. Newman v. State, 2009 Ark. 539, 354 S.W.3d 61. A writ

of error coram nobis is an extraordinarily rare remedy. State v. Larimore, 341 Ark. 397, 17

S.W.3d 87 (2000). Coram nobis proceedings are attended by a strong presumption that the

judgment of conviction is valid. Green v. State, 2016 Ark. 386, 502 S.W.3d 524. The function

of the writ is to secure relief from a judgment rendered while there existed some fact that

would have prevented its rendition if it had 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. Newman, 2009 Ark. 539, 354 S.W.3d 61. The petitioner has the burden of

demonstrating a fundamental error of fact extrinsic to the record. Roberts v. State, 2013 Ark.

56, 425 S.W.3d 771.

II. Grounds for the Writ

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, 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.

2 III. Background

In 2016, a jury found McKinney guilty of multiple drug-related offenses.1 An

aggregate sentence of 1848 months’ imprisonment was imposed. In 2018, the Arkansas Court

of Appeals affirmed McKinney’s convictions for delivery and possession of

methamphetamine. McKinney v. State, 2018 Ark. App. 10, 538 S.W.3d 216. The court of

appeals reversed and remanded the remaining judgments, holding that the trial court had

abused its discretion in denying McKinney’s motions to suppress his statement and the search

of his house and in denying his request for a hearing on his motion to suppress his statement.

After the remand was completed, the trial court entered orders denying McKinney’s motion

to suppress statement, his motion to suppress search, and his motion for the trial court to

recuse itself. On appeal, the court of appeals affirmed all the orders. McKinney v. State, 2019

Ark. App. 347, 583 S.W.3d 399.

IV. Ineffective Assistance of Counsel as a Ground for the Writ

McKinney’s allegations that his attorney failed to represent him adequately are clearly

ineffective-assistance-of-counsel claims that should have been raised under our

postconviction rule, Arkansas Rule of Criminal Procedure 37.1 (2018).2 Allegations of

ineffective assistance of counsel are not cognizable in coram nobis proceedings. Brown v. State,

1 Delivery of methamphetamine, possession of methamphetamine, maintaining a drug premises, simultaneous possession of drugs and a firearm, possession of methamphetamine with intent to deliver, and possession of a firearm by certain persons. 2 McKinney filed a petition under Rule 37.1 in the trial court. It was denied, and the Arkansas Court of Appeals affirmed the order. McKinney v. State, 2021 Ark. App. 235, 626 S.W.3d 110. 3 2019 Ark. 348, 587 S.W.3d 550. A petitioner’s claim that he or she was denied effective

counsel either at trial or on appeal does not demonstrate a fundamental error of fact extrinsic

to the record that warrants issuance of the writ. Pugh v. State, 2019 Ark. 319, 587 S.W.3d 198.

Coram nobis proceedings are not to be used as a substitute for timely raising ineffective-

assistance-of-counsel allegations under Rule 37.1. Hutcherson v. State, 2019 Ark. 318, 587

S.W.3d 204; see also Wooten v. State, 2018 Ark. 198, 547 S.W.3d 683.

McKinney’s contention that the trial court erred by not granting a motion to relieve

counsel is merely another means of arguing that counsel was ineffective. Moreover, even if

the claim could be considered as an assertion of trial error, questions of trial error are properly

raised at trial and on the record on appeal. A claim of trial error is not a ground for the writ.

Davis v. State, 2019 Ark. 20, 566 S.W.3d 111. The writ functions to correct mistakes of

fact, not mistakes of law. Id.

V. Insanity or Incompetence as a Ground for the Writ

McKinney argues that because he and counsel did not communicate well, and

because he disagreed vehemently with counsel’s handling of the trial, he did not understand

the nature of the proceedings against him and was unable to assist in the preparation of his

defense. He concludes that his state of mind at trial amounted to “insanity” within the

meaning of that term as a ground for coram nobis relief. The claim is unavailing.

A court is not required to accept the allegations in a petition for writ of error coram

nobis at face value without factual substantiation, Rayford v. State, 2018 Ark. 183, 546

S.W.3d 475, and McKinney provides no factual substantiation to establish that his poor

4 relationship with counsel or counsel’s ineffectiveness rendered him incompetent at the time

of trial. The law presumes a criminal defendant is mentally competent to stand trial, and the

burden of proving incompetence lies with the defendant. Hayes v. State, 2020 Ark. 311, 608

S.W.3d 142. When a petitioner seeking the writ makes no assertion that there was any

evidence (1) of his incompetence extrinsic to the record, (2) hidden from the defense, or

(3) unknown at the time of trial, grounds based on the petitioner’s incompetence fail. Id.

As stated, if McKinney was not afforded effective assistance of counsel at trial, his remedy

would be a timely petition for postconviction relief under Rule 37.1.

Kwasi McKinney, pro se petitioner.

Leslie Rutledge, Att’y Gen., by: Adam Jackson, Ass’t Att’y Gen., for respondent.