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                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
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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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