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Markus v. State

Supreme Court of Arkansas

May 21, 2015

BENJAMIN W. MARKUS, APPELLANT
v.
STATE OF ARKANSAS, APPELLEE

Editorial Note:

This opinion is uncorrected and subject to revision before publication in the printed official reporter.

NO. 26CR-12-130. HONORABLE JOHN HOMER WRIGHT, JUDGE.

Benjamin W. Markus, appellant, Pro se.

Dustin McDaniel, Att'y Gen., by: Valerie Glover Fortner, Ass't Att'y Gen., for appellee.

OPINION

Page 676

PRO SE APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT

PER CURIAM

In 2013, appellant Benjamin W. Markus entered a plea of guilty to two counts of rape. The victims were his daughter and step-daughter, aged four and six respectively. He was sentenced to serve an aggregate term of 360 months' imprisonment. In 2014, Markus filed in the trial court a pro se petition for writ of error coram nobis in which he contended that the writ was warranted because he was incompetent when the plea was entered and a competency hearing should have been held before the plea was entered. The trial court denied the petition, and Markus brings this appeal. He reiterates in his brief the claims that he raised in the petition as grounds for reversal of the order. He also adds in the brief factual support for the allegations that were not a part of the petition filed below.

We first note that, to the degree that Markus has bolstered the claims raised below with added factual support, this court will consider only the allegations as addressed to the trial court in the petition. An appellant is limited to the scope and nature of his arguments made below, and we consider only those arguments that were considered by the trial court in rendering its ruling. Feuget v. State, 2015 Ark. 43, 454 S.W.3d 734 (per curiam).

The standard of review of a denial of a petition for writ of error coram nobis is whether the circuit court abused its discretion in denying the writ. Nelson v. State, 2014 Ark. 91, 431 S.W.3d 852. An abuse of discretion occurs when the circuit court acts arbitrarily or groundlessly. When a petition for writ of error coram nobis is filed directly in the circuit court, a hearing is not required if the petition clearly has no merit, either because it fails to state a cognizable claim to support issuance of the writ, or because it is clear from the petition that the petitioner did not act with due diligence. Westerman v. State, 2015 Ark. 69, 456 S.W.3d 374. Here, we address whether the circuit court abused its discretion in denying the writ.

A writ of error coram nobis is an extraordinarily rare remedy more known for its denial than its approval. Howard v. State, 2012 Ark. 177, 403 S.W.3d 38. Coram-nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Id. The function of the writ is to secure relief from a judgment rendered while there existed some fact that would have prevented its rendition if it had been known to the circuit court and which, through no negligence or fault of the defendant, was not brought forward before rendition of the judgment. Id. The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Sanders v. State,

Page 677

374 Ark. 70, 285 S.W.3d 630 (2008)(per curiam) (citing Larimore v. State, 327 Ark. 271, 9 ...


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