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ARKANSAS COURT OF APPEALS DIVISION I No. CR-19-292

RANDY JAMES MYERS Opinion Delivered: January 15, 2020

APPELLANT APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT V. [NO. 23CR-16-959]

HONORABLE CHARLES E. CLAWSON, STATE OF ARKANSAS JR., JUDGE

APPELLEE AFFIRMED

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,

,

. 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.

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.

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.

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.

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

1 Any other issues raised below but not argued on appeal are considered abandoned. Springs v. State,

,

.

2 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,

,

. 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,

,

.

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,

,

. The two-part standard adopted by the

United States Supreme Court in Strickland v. Washington,

(1984), is applied to

determine whether counsel was effective when a defendant has pleaded guilty. True v.

State,

,

. There is no distinction between guilty pleas and

pleas of no contest for purposes of Rule 37.1. Harris v. State,

, at 8 n.3,

, 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,

,

. 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.

3 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.

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.

Conclusory statements that counsel was ineffective cannot be the basis for postconviction

relief. Harmon v. State,

, ___ S.W.3d ___.

Myers 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.

Myers 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

4 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.

Myers’s 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, and we will not address arguments made for the first time on appeal.

Affirmed.

ABRAMSON and WHITEAKER, JJ., agree.

Randy James Myers, pro se appellant.

Leslie Rutledge, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appel

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