Markus v. State ( 2015 )

Cite as 2015 Ark. 228
SUPREME COURT OF ARKANSAS
No. CR-14-879
Opinion Delivered May 21, 2015
BENJAMIN W. MARKUS PRO SE APPEAL FROM THE
APPELLANT GARLAND COUNTY CIRCUIT
COURT
V. [NO. 26CR-12-130]
HONORABLE JOHN HOMER
STATE OF ARKANSAS WRIGHT, JUDGE
APPELLEE
AFFIRMED.
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
Cite as 2015 Ark. 228
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, ___
S.W.3d ___. 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, 374 Ark. 70, 285 S.W.3d 630 (2008)(per curiam)
(citing Larimore v. State, 327 Ark. 271, 938 S.W.2d 818 (1997).
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The writ is allowed only under compelling circumstances to achieve justice and to
address errors of the most fundamental nature. Howard, 2013 Ark. 273, 403 S.W.3d 38. We
have held that a writ of error coram nobis is available to address certain errors that are found
in one of four categories: (1) insanity at the time of trial, (2) a coerced guilty plea, (3) material
evidence withheld by the prosecutor, or (4) a third-party confession to the crime during the
time between conviction and appeal. Id.
As his basis for reversal of the order, Markus argues that there should have been a
competency hearing before he entered his guilty plea. He contends that he lacked the ability
to understand the charges against him and, if he had been capable of appreciating the
criminality of his conduct, he would not have committed sexual acts on his children. Markus
further asserts he was denied due process of law because the State failed to asked for a pretrial
competency evaluation when he had a history of psychiatric problems.
Markus has not stated a ground to reverse the trial court’s denial of the petition. The
record on appeal contains a copy of the report from a pretrial psychiatric examination of
Markus in 2012, which was conducted at the request of the defense. In that report, the
psychiatrist who examined Markus reported that he was very depressed, he had longstanding
unhappiness pertaining to loss and abandonment that may have been repressed, and he had
a history of being abused that played a large role in his own abusive behavior and his
inadequate ability to achieve closeness and to have his own needs met. The psychiatrist
further found that, despite the presence of depression, Markus understood the charges against
him, understood the range of potential consequences, was capable of working rationally and
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effectively with counsel, could conform his behavior appropriately for a courtroom
proceeding, and was fully competent to proceed with trial.
As the result of the psychiatric testing was clearly known at the time of trial, Markus
did not demonstrate that there was a fact extrinsic to the record that could not have been
known at the time that his plea of guilty was entered. Markus has not shown that there
existed some fact—incompetence at the time of the guilty plea—that would have prevented
rendition of judgment had it been known to the trial court and that, through no negligence
or fault of the defendant, was not brought forward before rendition of judgment. Westerman,
2015 Ark. 69, ___ S.W.3d ___ (citing Ridgeway v. State, 239 Ark. 377, 389 S.W.2d 617
(1965), cert. denied, 382 U.S. 902 (1965) (stating that the mental examination of the
petitioner by state hospital officials, which was reported to the circuit court, showed that any
possible claim of the petitioner’s insanity was before the circuit court and could not later be
considered on a petition for writ of error coram nobis)).
The application for coram-nobis relief must make a full disclosure of specific facts relied
upon as the basis for the writ. Larimore, 327 Ark. 271, 938 S.W.3d 818. Because Markus
failed to assert facts in support of the allegations contained in the coram-nobis petition that
established a ground for the writ, the trial court did not err in denying the petition. Wright
v. State, 2015 Ark. 83, ___ S.W.3d ___ (per curiam).
Affirmed.
Benjamin W. Markus, pro se appellant.
Dustin McDaniel, Att’y Gen., by: Valerie Glover Fortner, Ass’t Att’y Gen., for appellee.
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