Cuatepotzo v. Hobbs , 2014 Ark. 489 ( 2014 )

Cite as 2014 Ark. 489
SUPREME COURT OF ARKANSAS
No. CV-14-482
Opinion Delivered November 20, 2014
ELIAS CUATEPOTZO PRO SE APPEAL FROM THE
APPELLANT JEFFERSON COUNTY CIRCUIT
COURT
V. [NO. 35CV-14-18]
RAY HOBBS, DIRECTOR, ARKANSAS HONORABLE JODI RAINES DENNIS,
DEPARTMENT OF CORRECTION JUDGE
APPELLEE
AFFIRMED.
PER CURIAM
In 2012, an amended judgment was entered reflecting that appellant Elias Cuatepotzo
had entered a plea of nolo contendere to rape and residential burglary for which he was
sentenced to serve an aggregate sentence of 180 months’ imprisonment.1 In 2014, appellant filed
in the Jefferson County Circuit Court a pro se petition for declaratory judgment and for writ of
mandamus against the Director of the Arkansas Department of Correction (“ADC”), in whose
custody appellant is being held, concerning appellant’s eligibility for parole. The circuit court
dismissed the petition, and appellant brings this appeal from the order.2 We review the action
1
Appellant also entered a plea of nolo contendere in the same proceeding to a
misdemeanor charge of domestic battering in the third degree.
2
This court will consider only those issues raised below. If an issue was not raised in the
petition, or if the support for an issue was not included in the petition, the trial court did not
have the opportunity to rule on the issue or to consider the grounds advanced in support of the
issue, and this court will not consider issues on which there was no ruling below or arguments
in support of a claim that are advanced for the first time on appeal. See Girley v. Hobbs, 2014 Ark.
325, ___ S.W.3d ___ (per curiam).
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of the circuit court de novo, and we will uphold the circuit court’s decision in a declaratory
judgment and mandamus action unless it is clearly erroneous. Carroll v. Hobbs, 2014 Ark. 395,
___ S.W.3d ___ (per curiam).
Appellant’s eligibility for parole was determined by the law in effect at the time his
offenses were committed in 2007. Id. Under the provisions of Arkansas Code Annotated
section 16-93-611(a)(1) (Repl. 2006) as in effect at the time appellant committed the offenses,
he was required to serve at least seventy percent of the 180-month sentence before being eligible
for parole or transfer. The seventy-percent requirement applies notwithstanding any law
allowing the award of meritorious good time or any law to the contrary. See Gardner v. Hobbs,
2013 Ark. 439 (per curiam).
Appellant argued in the petition that the application of section 16-93-611(a)(1) to his
sentence was an unconstitutional “sentence enhancement” illegally applied by the ADC without
a court order, that he was denied due process of law by the application of the statute without
notice, and that the ADC usurped the power of the judiciary by modifying his sentence.
The purpose of the declaratory-judgment statutory scheme is to settle and to afford relief
from uncertainty and insecurity with respect to rights, statutes, and other legal relations.
McCutchen v. City of Ft. Smith, 2012 Ark. 452, 425 S.W.3d 671. This court has held that there are
four requisite conditions before declaratory relief may be granted: (1) there must exist a
justiciable controversy; (2) the controversy must be between persons whose interests are adverse;
(3) the party seeking relief must have a legal interest in the controversy; (4) the issue involved
in the controversy must be ripe for judicial determination. Ark. Dep’t of Human Servs. v. Ross-
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Lawhon, 290 Ark. 578, 721 S.W.2d 658 (1986). Here, appellant failed to state a basis for
declaratory judgment under Arkansas Code Annotated sections 16-111-101 to -111 (Repl. 2006).
Without establishing a right to declaratory judgment, appellant provided no basis for a writ of
mandamus to issue. Cridge v. Hobbs, 2014 Ark. 153 (per curiam). The purpose of a writ of
mandamus is to enforce an established right or to enforce the performance of a duty. Banks v.
Hobbs, 2013 Ark. 377 (per curiam). A writ of mandamus is issued by this court only to compel
an official or a judge to take some action, and, when requesting a writ, a petitioner must show
a clear and certain right to the relief sought and the absence of any other remedy. Id. A writ of
mandamus will not lie to control or review matters of discretion. Id.; see also Aguilar v. Lester, 2011
Ark. 329 (per curiam).
With respect to appellant’s argument that the appellee has denied him due process of law
by applying the statute at issue to his case, there is no constitutional right or entitlement to parole
that would invoke due-process protection. Cridge, 2014 Ark. 153; see also Michalek v. Lockhart,
292 Ark. 301, 730 S.W.2d 210 (1987). Moreover, we have held that section 16-93-611 does not
violate the right to equal protection, see Gardner, 2013 Ark. 439, and appellant has failed to cite
any convincing authority otherwise.
As to appellant’s contention that a trial court order was required before the ADC could
apply certain statutes to appellant’s parole-eligibility status, parole eligibility is not within the
purview of the trial court. See Mitchem v. Hobbs, 2014 Ark. 233 (per curiam) (citing Thompson v.
State, 2009 Ark. 235 (per curiam)) (holding that, because determining parole eligibility is the
prerogative of the ADC, the trial court would not have had authority to place conditions as to
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parole eligibility on the sentence pronounced).
The arguments raised by appellant in his petition and in this appeal stem primarily from
his erroneous characterization of section 16-93-611 as an enhancement statute. Parole-eligibility
determinations by the ADC do not constitute a modification of a prison sentence. Cridge, 2014
Ark. 153. The determination of parole eligibility is solely within the province of the ADC.
Aguilar, 2011 Ark. 329. This court has repeatedly held that the ADC, not the sentencing court,
determines parole eligibility. See Pitts v. Hobbs, 2013 Ark. 457 (per curiam) (rejecting the
argument that a parole-eligibility statute cannot be applied to a sentence absent some reference
to the particular statute on the judgment-and-commitment order); Stephens v. Hobbs, 2012 Ark.
332 (per curiam) (rejecting appellant’s due-process argument that a parole-eligibility statute
should not apply when the jury, the court, and the appellant were unaware of the statute and did
not intend for it to apply to the judgment); Johnson v. State, 2012 Ark. 212 (per curiam) (holding
that parole eligibility falls clearly within the domain of the executive branch and specifically the
ADC, as fixed by statute); Thompson v. State, 2009 Ark. 235 (per curiam) (holding that, because
determining parole eligibility is the prerogative of the ADC, the trial court would not have had
authority to place conditions as to parole eligibility on the sentence announced); see also Abdullah
v. Lockhart, 302 Ark. 506, 790 S.W.2d 440 (1990); Fain v. State, 286 Ark. 35, 688 S.W.2d 940
(1985).
Here, appellant pled nolo contendere to rape committed in 2007, and the ADC, in
accordance with section 16-93-611, applied the statute to appellant’s sentence to determine his
parole-eligibility date. Section 16-93-611, in effect when appellant committed the offenses,
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provided that any person who is found guilty of, or who pleads guilty or nolo contendere to,
rape shall not be eligible for parole until the person serves seventy percent of the term of
imprisonment to which the person is sentenced. We have specifically recognized that the statute
does not allow for parole or transfer until a person who has been found guilty of, or who pleads
guilty or nolo contendere to, designated crimes has served seventy percent of his sentence. Ritter
v. Hobbs, 2014 Ark. 68 (per curiam); Anderson v. Hobbs, 2013 Ark. 354 (per curiam).
Finally, appellant contended that section 16-93-611 should not have been applied to his
sentence by the ADC because the face of the judgment did not cite the statute. We rejected this
argument in Pitts v. Hobbs, 2013 Ark. 457 (per curiam) (The parole-eligibility statute may be
applied to a sentence absent some reference to the particular statute on the judgment-and-
commitment order.).
Inasmuch as none of the claims for relief raised in appellant’s petition demonstrated that
he was entitled to any relief by means of a declaratory judgment or a writ of mandamus, the
circuit court did not err in declining to grant the relief sought. The order is affirmed.
Affirmed.
Elias Cuatepotzo, pro se appellant.
Dustin McDaniel, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y Gen., for appellee.
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