Myers v. State

• Citation: 2020 Ark. App. 16,593 S.W.3d 29
• Decision Date: 15 January 2020
• Docket Number: No. CR-19-292,CR-19-292
• Parties: Randy James MYERS, Appellant v. STATE of Arkansas, Appellee
• Court: Court of Appeals of Arkansas

2020 Ark. App. 16

593 S.W.3d 29

Randy James MYERS, Appellant

v.STATE of Arkansas, Appellee

No. CR-19-292

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered: January 15, 2020

Randy James Myers, pro se appellant.

Leslie Rutledge, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., for appellee.

MEREDITH B. SWITZER, Judge

On May 11, 2018, appellant Randy James Myers appeared before the Faulkner County Circuit Court to enter nolo contendere pleas to one count of conspiracy to commit rape and seven counts of distributing/possessing/viewing matter depicting sexually explicit conduct involving a child (child pornography). The State nolle prossed another twenty-three counts of child pornography. Myers was sentenced to thirty years on the conspiracy-to-commit-rape charge and ten years each for four of the child-pornography charges, with the sentences to run consecutively. He was sentenced to suspended impositions of sentence of ten years each on the remaining three child-pornography charges. Myers subsequently filed a petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1. The petition was denied without a hearing, and Myers filed his notice of appeal. We affirm.

Denials of postconviction relief are not reversed unless the circuit court's findings are clearly erroneous. Davis v. State , 2018 Ark. App. 540, 564 S.W.3d 283. A finding is clearly erroneous when the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that the circuit court made a mistake. Id. When reviewing the circuit court's ruling on a Rule 37.1 petition, the appellant is limited to the scope and nature of the arguments he made below that were considered by the circuit court in making its ruling. Id. We do not address arguments raised for the first time on appeal, nor do we consider factual substantiation added to bolster the allegations made below. Id.

Myers groups his arguments into four categories on appeal.¹ First, he contends that the State failed to establish proof of the bases for filing charges—specifically the charge of conspiracy to commit rape—and argues the State failed to establish a factual basis for a plea agreement as required by Rule 24.6 of the Arkansas Rules of Criminal Procedure. However, Myers did not allege in his Rule 37 petition that the circuit court violated Rule 24.6 and therefore cannot now make that argument on appeal. Davis , supra.

Second, Myers alleges various evidentiary shortcomings, including that the State was not required to authenticate the evidence against him; that the evidence against him was retrieved from corrupt devices that showed signs of tampering or corruption; and that there was no properly authenticated evidence to corroborate the identity of the sender of a text message. Myers further alleges entrapment due to evidence tampering and missing text messages.

Direct challenges to the sufficiency of the evidence are not cognizable in Rule 37.1 proceedings. Scott v. State , 2012 Ark. 199, 406 S.W.3d 1. When a plea of guilty or nolo contendere is entered, the sole issue in postconviction proceedings is whether the plea was intelligently and voluntarily entered on advice from competent counsel. Bridgeman v. State , 2017 Ark. App. 321, 525 S.W.3d 459.

Myers's third claim is that his counsel provided ineffective assistance when he entered his nolo contendere pleas. In making a determination regarding a claim of ineffective assistance of counsel, the appellate courts consider the totality of the evidence. Johnson v. State , 2018 Ark. 6, 534 S.W.3d 143. The two-part standard adopted by the United States Supreme Court in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), is applied to determine whether counsel was effective when a defendant has pleaded guilty. True v. State , 2017 Ark. 323, 532 S.W.3d 70. There is no distinction between guilty pleas and pleas of no contest for purposes of Rule 37.1. Harris v. State , 2017 Ark. App. 381, at 8 n.3, 526 S.W.3d 43, 49 n.3. Under the Strickland test, a claimant must demonstrate both that counsel's performance fell below an objective standard of reasonableness and that counsel's deficient performance prejudiced his defense to such an extent that the petitioner was deprived of a fair trial. Jamett v. State , 2010 Ark. 28, 358 S.W.3d 874. There is no reason for a court deciding an ineffective-assistance claim to address both components of the inquiry if the defendant makes an insufficient showing on one. True , supra.

An appellant who has pleaded guilty normally will have considerable difficulty in proving any prejudice as his plea rests upon his admission in open court that he did the act with which he was charged. Jamett , supra. To establish prejudice and prove that he was deprived of a fair trial due to ineffective assistance of counsel, an appellant who has pleaded guilty must demonstrate a reasonable probability that, but for counsel's errors, he would not have so pleaded and would have...