FROM THE FAULKNER COUNTY CIRCUIT COURT [NO. 23CR-16-959]
HONORABLE CHARLES E. CLAWSON, JR., JUDGE
James Myers, pro se appellant.
Rutledge, Att'y Gen., by: Brad Newman, Ass't
Att'y Gen., for appellee
MEREDITH B. SWITZER, JUDGE.
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.
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.
groups his arguments into four categories on
appeal. 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.
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.
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
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 (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,
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 insisted on going to
trial. Jamett, supra. Conclusory statements
that counsel was ineffective cannot be the basis for
postconviction relief. Harmon v. State, 2019
Ark.App. 492, ___S.W.3d ___.
asserts that his counsel did not ask if he was pleading nolo
contendere because he was guilty of the offenses. He claims
his counsel failed to properly investigate the case, and he
was prejudiced by such failure by being prosecuted for
charges for which the burden of proof was not met. He also
contends his counsel failed to contest the evidence to
support the arrest and search warrant at a motion hearing,
thus resulting in false information being used to secure his
arrest, obtain his statement, and seize his property. Myers
further argues the plea agreement subjected him to cruel and
unusual punishment. Myers's cruel-and-unusual-punishment
argument was not made to the circuit court; therefore, it
cannot now be addressed. Davis, supra.
does not claim that but for his counsel's actions, he
would not have entered his pleas. In fact, in exchange for
his nolo contendere pleas, the State nolle prossed
twenty-three additional counts of possession of child
pornography. Had Myers gone to trial, not only would he have
been on trial for the one count of conspiracy to commit rape
and seven counts of possession of child pornography to which
he entered nolo contendere pleas, he would have also been
subjected to prosecution for those additional twenty-three
counts of possession of child pornography. Myers has failed
to demonstrate that but for his counsel's performance he
would not have entered his nolo contendere pleas and would
have proceeded to trial on thirty-one counts.
last claim is that the plea hearing was inadequate because
the circuit court did not adhere to the requirements of Rules
24.6 and 24.4 of the Arkansas Rules of Criminal Procedure.
However, Myers asserted no violation of these rules in his
Rule 37 petition, ...