Barton v. State

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                 SUPREME COURT OF ARKANSAS
                                         No.   CR-13-293

                                                    Opinion Delivered October 9, 2014

                                                    PRO SE APPEAL FROM THE PULASKI
BRENDON BARTON                                      COUNTY CIRCUIT COURT
                                 APPELLANT          [NO. 60CR-11-3134]
V.                                                  HONORABLE WENDELL L.
                                                    GRIFFEN, JUDGE
STATE OF ARKANSAS
                                   APPELLEE         AFFIRMED.


                                          PER CURIAM

       In 2012, judgment was entered reflecting that appellant Brendon Barton had entered a

plea of guilty to eight counts of aggravated robbery, one count of aggravated residential burglary,

eight counts of felony theft of property, one count of kidnapping, and one count of battery in

the second degree. He was sentenced to an aggregate term of 300 months’ imprisonment.

       In 2013, appellant filed in the trial court a pro se petition for writ of habeas corpus

pursuant to Act 1780 of 2001, codified at Arkansas Code Annotated sections 16-112-201 to -208

(Repl. 2006). Act 1780, as amended by Act 2250 of 2005, provides that a writ of habeas corpus

can issue based on new scientific evidence proving a person actually innocent of the offense for

which he was convicted. 

(a)(1) (Repl. 2006); 

; Biggs v. State, 

 (per curiam); Strong v. State, 

, 

 (per curiam). The petition was denied, and appellant brings this appeal.

       The generally applicable standard of review of an order denying postconviction relief

dictates that this court does not reverse unless the circuit court’s findings are clearly erroneous,

although issues concerning statutory interpretation are reviewed de novo. Girley v. Hobbs, 2014
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Ark. 325, ___ S.W.3d ___ (per curiam); Cooper v. State, 

 (per curiam). An abuse-of-

discretion standard applies when the statute allows the trial court to exercise discretion. Girley,

, ___ S.W.3d ___. A finding is clearly erroneous when, although there is evidence

to support it, the appellate court, after reviewing the entire evidence, is left with the definite and

firm conviction that a mistake has been committed. Id.; Pitts v. State, 

 (per curiam).

An abuse of discretion occurs when the circuit court acts arbitrarily or groundlessly. Guy v. State,

 (per curiam).

       In his petition under the statute, appellant contended in conclusory fashion that there was

new scientific evidence that would prove that he is actually innocent of seven of the eight counts

of aggravated robbery to which he pled guilty. He failed, however, to state what specific

scientific evidence is now available. Instead, he argued at length that the evidence against him

was insufficient to sustain the judgment because the elements of the offense of aggravated

robbery were not proven beyond a reasonable doubt.

       Arkansas Code Annotated section 16-112-201(a)(1) provides that a petitioner must show

that there exists scientific evidence not available at trial that establishes his actual innocence.

When a petitioner under the statute fails to provide factual support for the claim that there is

scientific evidence which bears on his case, he has failed to demonstrate that he is entitled to

relief. See Darrough v. State, 

, ___ S.W.3d ___ (per curiam).1

       1
         To the extent that appellant intended his claim of actual innocence to be a challenge to
his plea of guilty, before a circuit court can order scientific testing under the statute, there are
a number of predicate requirements that must be met. Edwards v. State, 

 (per
curiam). This includes a requirement that the identity of the perpetrator was at issue during the
investigation or prosecution of the offense being challenged. 

(7).
This court held in Graham v. State, 

, 

 (2004) (per curiam), that when

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       As his second argument for relief under the statute, appellant contended that, under the

constitutional prohibition against double jeopardy, he should have been convicted of only one

of the five aggravated-robbery counts because those five robberies were a continuing course of

conduct. He bases the allegation on his claim that the five robberies took place in one parking

lot within minutes of each other. He did not, however, contend in his petition, nor does he

argue in his brief in this appeal, that the claim is one that is cognizable under Act 1780. As

stated, relief under the Act is based on new scientific evidence available to the convicted

defendant. The Act does not provide an opportunity to raise issues outside the purview of the

Act, and it is not a substitute for pursuing other remedies that may be available to the convicted

defendant to address error of constitutional dimension. See Graham, 

, 

.

       Because appellant failed to state a cause of action under the statute, the trial court did not

err in denying the petition. Accordingly, the order is affirmed.

       Affirmed.

       Brendon Barton, pro se appellant.

       Dustin McDaniel, Att’y Gen., by: Ashley Argo Priest, Ass’t Att’y Gen., for appellee.




a defendant has entered a guilty plea and admitted that he committed the offense, identity is not
in question for purposes of the Act. For that reason, a challenge to a guilty plea is not
cognizable in Act 1780 even in those instances where the petitioner alleges that there is new
scientific evidence available. Edwards, 

.


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