Duane Gonder, a Drew County man who hopes for a reduction of his 46-year prison sentence for the 2009 murder of his brother and other crimes, has been denied requests to file a supplemental argument in his appeal, the appointment of an attorney, and to supplement the record.
Because his appeal is clearly without merit, his motions are moot, the Arkansas Supreme Court said Thursday.
Gonder, 31, pleaded guilty in 2010 to first-degree murder in the shooting death of his brother, Marcus Gonder, and the aggravated assault of his brother’s girl friend, Tasha Lewis. He was sentenced to 30 years in prison for the murder of his brother and six years for assaulting Lewis. He also pleaded guilty to the attempted introduction of a prohibited article (a cell phone battery) into the Drew County Detention Center. He received a 10-year prison sentence for that crime.
Gonder previously petitioned the Drew County Circuit Court for a writ of error coram nobis, a rarely granted petition that allows a case to be reconsidered in light of new information that the petitioner says was not available at trial and was not previously a subject of an appeal. The Drew County Circuit Court declined to issue the writ and Gonder appealed that decision to the Arkansas Supreme Court.
Gonder argued that the Drew County Circuit Court abused its discretion by accepting his guilty plea because the plea was coerced by “overcharging” by the prosecutor. He bases the claim on the fact that he was originally charged with kidnapping and aggravated residential burglary and that those charges were dropped in exchange for his plea of guilty. He claims that those charges, as well a capital murder charge that was subsequently reduced to a first-degree murder and the furnishing-a-prohibited-articles charge, were not supported by the evidence.
“Gonder did not demonstrate that his plea was obtained through intimidation, coercion, or threats inasmuch as the petition did not allege that the plea was the result of fear, duress, or threats of mob violence as previously recognized by this court as cognizable for coram-nobis relief,” the Arkansas Supreme Court said. “The mere fact that Gonder was aware that he could receive a more severe penalty if he went to trial did not rise to the level of coercion within the purview of a coram-nobis proceeding.”
As his second ground for reversal of the Drew County Circuit Court order, Gonder argued that the prosecutor withheld material evidence pertaining to the charge of furnishing a prohibited article into a correctional facility.
“Gonder did not demonstrate a Brady violation in his petition because his claim was based entirely on the sufficiency of the evidence to prove the charge,” the Arkansas Supreme Court said. “Any challenge he desired to raise to the charge should have been raised before he chose to enter a plea of guilty. A claim that the evidence did not establish that he was guilty was outside the purview of a coram nobis proceeding.”
Gonder next claims that the prosecutor withheld victim-impact statements from the defense. He says the prosecutor concealed a statement his mother had made in a letter concerning the suffering she had endured because both Gonder and the murder victim were her sons.
“The allegation must fail because it is clear that Gonder was aware of who the victims were before he entered his plea, and he offered no fact in his petition to establish that the State concealed the opinions of those victims from the defense before the plea was entered,” the Arkansas Supreme Court said.
Gonder, according to the Arkansas Supreme Court, did not provide any facts to show that he would not have pleaded guilty or that the outcome of the proceeding would have been different had the defense had access to a particular statement.