Poland v. Kelley

2015 Ark. 401

WAYNE FREDERICK POLAND APPELLANT v. WENDY KELLEY, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION APPELLEE

No. CV-15-586

SUPREME COURT OF ARKANSAS

October 29, 2015

PRO SE MOTION FOR EXTENSION OF TIME TO FILE BRIEF AND MOTION FOR APPOINTMENT OF COUNSEL

[CHICOT COUNTY CIRCUIT COURT, NO. 09CV-15-42]

HONORABLE ROBERT BYNUM GIBSON, JUDGE

APPEAL DISMISSED; MOTIONS MOOT.

PER CURIAM

In 2003, appellant Wayne Frederick Poland was charged with 40 counts of rape, 20 counts of possession of child pornography, and one count of failure to appear. In 2009, he pleaded guilty to all the counts of rape, possession of child pornography, and failure to appear for which he was sentenced to 300 months', 120 months', and 72 months' imprisonment, respectively.

On April 30, 2015, Poland filed in the circuit court a pro se petition for writ of habeas corpus alleging over one hundred paragraphs of grounds supporting issuance of the writ, including, but not limited to, concerns about his food and dietary requirements, medically and religiously, while in the county jails; claims of a speedy-trial violation; questions regarding the excessive amount of bail-bond money ordered; claims of ineffective assistance of counsel; issues regarding the admissibility of his computer and computer-expert testimony during a pretrial hearing; arguments regarding the law-enforcement officers' failure to question him during their investigation and reliance on the victims' statements; complaints about the lack of a law library at his disposal; a myriad of complaints regarding the conditions of his confinement, including disregard of his physical well-being and lack of medical care and attention; the circuit court's denial of a motion for change of venue; lack of an evidentiary hearing regarding the location that his plea was taken; and claims that his guilty plea was not knowingly, intelligently, and voluntarily made due to the loss of his mental and physical fortitude while being detained. The circuit court denied Poland's petition for writ of habeas corpus, finding he made no allegation that his judgment and commitment was invalid on its on face or that the trial court lacked jurisdiction. Poland filed a timely notice of appeal from the denial.

Now before us are Poland's motion for extension of time to file a brief and motion for appointment of counsel. Because it is clear from the record that Poland could not prevail on appeal, we dismiss the appeal, and the motions are therefore moot. An appeal from an order that denied a petition for postconviction relief, including a petition for writ of habeas corpus, will not be permitted to go forward where it is clear that the appellant could not prevail. Daniels v. Hobbs, 2011 Ark. 192 (per curiam).

A circuit court's denial of habeas relief will not be reversed unless the court's findings are clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with a definite and firm conviction that a mistake has been committed. Hobbs v. Gordon, 2014 Ark. 225, at 5, 434 S.W.3d 364, 367.Here, the circuit court correctly determined that Poland did not allege grounds in his petition on which the writ could be granted.

A writ of habeas corpus is proper when a judgment of conviction is invalid on its face or when a trial court lacked jurisdiction over the cause. Fields v. Hobbs, 2013 Ark. 416. The burden is on the petitioner in a habeas-corpus petition to establish that the trial court lacked jurisdiction or that the judgment-and-commitment order was invalid on its face; otherwise, there is no basis for a finding that a writ of habeas corpus should issue. Young v. Norris, 365 Ark. 219, 226 S.W.3d 797 (2006) (per curiam). The petitioner must plead either the facial invalidity or the lack of jurisdiction and make a "showing by affidavit or other evidence [of] probable cause to believe" that he is illegally detained. Id. at 221, 226 S.W.3d at 798.

As to Poland's argument, that a hearing may be necessary to determine "where he signed the plea bargain and entered his nolo-contendere plea on September 2, 2009," the record before this court does not contain Poland's plea statement or judgment-and-commitment order, nor were those documents before the circuit court for consideration when it denied his request for habeas relief. Thus, we cannot reach the merits of Poland's jurisdictional argument because he has failed to supply us with the pleadings, documents, and testimony necessary to review the issue. See, e.g., Cloird v. State, 352 Ark. 190, 195, 99 S.W.3d 419, 423 (2003) (referencing Cloird v. State, CR-00-166 (Ark. Oct. 11, 2001) (per curiam) (stating this court was "unable to determine whether the trial court lacked jurisdiction over the criminal offense")).

Even if Poland raises the argument on appeal, he cannot append or supplement the record or his yet-to-be filed brief to include the necessary pleadings, documents, or testimony,as this court cannot, in the exercise of its appellate jurisdiction,...