Myers v. Payne

• Decision Date: 22 September 2022
• Docket Number: CV-22-5
• Parties: RANDY MYERS APPELLANT v. DEXTER PAYNE, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION APPELLEE
• Court: Arkansas Supreme Court

2022 Ark. 156

RANDY MYERS APPELLANT
v.
DEXTER PAYNE, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION APPELLEE

No. CV-22-5

Supreme Court of Arkansas

September 22, 2022

PRO SE APPEAL FROM THE LINCOLN COUNTY CIRCUIT COURT; MOTION TO SUPPLEMENT BRIEF [NO. 40CV-21-84] HONORABLE JODI RAINES DENNIS, JUDGE

Randy Myers, pro se appellant.

Leslie Rutledge, Att'y Gen., by: Jason Michael Johnson, Ass't Att'y Gen., for appellee.

JOHN DAN KEMP, CHIEF JUSTICE

Appellant Randy Myers appeals the dismissal of his pro se petition for writ of habeas corpus filed pursuant to Arkansas Code Annotated section 16-112-101 (Repl. 2016) in the Lincoln County Circuit Court, the county where he is incarcerated. For reversal, Myers argues that (1) the circuit court lacked jurisdiction; (2) his sentence was illegal; and (3) the order facially illegal. Because his arguments on appeal fail to raise cognizable claims for habeas relief, we affirm. We also deny his motion to supplement appellant's brief-in-chief.

I. Facts

In May 2018, Myers entered a negotiated plea of no contest to one count of conspiracy to commit rape and seven counts of possessing matter depicting sexually explicit images involving a child. Myers was sentenced to 360 months' imprisonment for conspiracy to commit rape and 120 months' imprisonment on each of four counts of possessing child

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pornography. The sentences were imposed to run consecutively for an aggregate sentence of 840 months' imprisonment or seventy years' imprisonment. Suspended sentences of 120 months were imposed on each of the remaining three counts for possession of child pornography. In exchange for Myers's no-contest plea, twenty-three additional counts of possession of child pornography were dismissed.^[1]

Subsequently, Myers filed a petition for writ of habeas corpus petition and asserted the following claims for relief: (1) the arresting officer perjured himself, which deprived the court of jurisdiction; (2) his sentence exceeded the presumptive sentence and was illegal; and (3) the victim's age did not appear on the sentencing order, which rendered the order facially illegal. Myers also raised in his petition, but abandons on appeal, certain claims that there was no proper chain of custody established for the evidence collected; that the trial judge violated judicial ethics rules; and that he is innocent. See Anderson v. State, 2011 Ark. 461, 385 S.W.3d 214 (standing for the proposition that issues raised below but not argued on appeal are abandoned). The circuit court dismissed Myers's petition, and he filed a notice of appeal. After the parties filed briefs in this matter, Myers filed a motion to supplement his brief, and we now consider the motion with his appeal.

II. Writ of Habeas Corpus

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On appeal, Myers makes the same arguments that he raised in his petition to the circuit court. A circuit court's decision on a petition for writ of habeas corpus will be upheld unless it is clearly erroneous. Hobbs v. Gordon, 2014 Ark. 225, at 5, 434 S.W.3d 364, 367. A decision 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 made. Id., 434 S.W.3d at 367.

A. Applicable Law

A writ of habeas corpus is proper when a judgment and commitment order is invalid on its face or when a circuit court lacks jurisdiction over the cause. Finney v. Kelley, 2020 Ark. 145, at 3, 598 S.W.3d 26, 28. Jurisdiction is the power of the court to hear and determine the subject matter in controversy. Id., 598 S.W.3d at 28. When the circuit court has personal jurisdiction over the appellant and also has jurisdiction over the subject matter, the court has authority to render the judgment. Id., 598 S.W.3d at 28.

Pursuant to Arkansas Code Annotated section 16-112-103(a)(1) (Repl. 2016), a petitioner for the writ who does not allege his or her actual innocence and proceed under Act 1780 of 2001 must plead either the facial invalidity of the judgment or the circuit court's lack of jurisdiction and make a showing, by affidavit or other evidence, of...