Smith v. Hobbs , 2014 Ark. 286 ( 2014 )

Cite as 2014 Ark. 286
SUPREME COURT OF ARKANSAS
No. CV-12-1062
Opinion Delivered June 19, 2014
JAMES EDWARD SMITH
APPELLANT PRO SE APPEAL FROM THE
JEFFERSON COUNTY CIRCUIT
V. COURT
[NO. 35CV-12-523]
RAY HOBBS, DIRECTOR, ARKANSAS
DEPARTMENT OF CORRECTION HONORABLE JODI RAINES DENNIS,
APPELLEE JUDGE
AFFIRMED.
PER CURIAM
In 1994, appellant James Edward Smith was found guilty of rape, kidnapping, and
burglary. He was sentenced to an aggregate term of forty years’ imprisonment in the Arkansas
Department of Correction (“ADC”). In 2009, appellant entered a plea of guilty to first-degree
battery, theft of property, and fleeing, for which he was sentenced as a habitual offender to an
aggregate term of 120 months’ imprisonment in the ADC.
In 2012, appellant filed in the Jefferson County Circuit Court a pro se petition for
declaratory judgment and for writ of mandamus, in which he sought to challenge the calculation
of his parole-eligibility date by the ADC. The petition primarily pertained to Act 1805 of 2001,
codified at Arkansas Code Annotated section 16-93-609(b)(1) (Repl. 2006). In pertinent part,
Act 1805 provides that any person who commits a violent felony subsequent to August 13, 2001,
who has previously been found guilty of a violent felony shall not be released on parole. Ark.
Code Ann. § 16-93-609(b)(1). Appellant argued that the application of the statute to his
sentence amounted to an enhancement of the sentence. He further claimed that Act 536 of
Cite as 2014 Ark. 286
1993 and Act 558 of 1993, codified at Arkansas Code Annotated section 12-28-201 (Supp.
1995), under which an inmate may be eligible for meritorious “good time,” and, thus, advance
his parole-eligibility date, were in conflict with Act 1805 to the extent that Act 1805 removed
an inmate’s ability to be eligible for parole contrary to the dictates of Acts 536 and 558.
The circuit court entered an order that dismissed the petition with prejudice. Appellant
brings this appeal. We review the action 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. See Crawford v. Cashion, 2010 Ark. 124 (per curiam). On appeal, appellant reiterates
the arguments made in the petition.
A petition for declaratory judgment and writ of mandamus is civil in nature. Wiggins v.
State, 299 Ark. 180, 771 S.W.2d 759 (1989). We have 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. Pitts v. Hobbs, 2013 Ark. 457 (per curiam); see also Aguilar v.
Lester, 2011 Ark. 329 (per curiam) (citing Ark. Dep’t of Human Servs. v. Ross-Lawhon, 290 Ark. 578,
721 S.W.2d 658 (1986)).
The purpose of a writ of mandamus is to enforce an established right or to enforce the
performance of a duty. Pitts, 2013 Ark. 457; Banks v. Hobbs, 2013 Ark. 377 (per curiam) (citing
Aguilar, 2011 Ark. 329). A writ of mandamus is issued 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
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to the relief sought and the absence of any other remedy. Pitts, 2013 Ark. 457. But, a writ of
mandamus will not lie to control or review matters of discretion. Id.
Arkansas Code Annotated section 16-93-609 is not a sentencing statute, and it is not an
enhancement statute; it merely sets out certain provisions for parole eligibility. Pursuant to
Arkansas Code Annotated section 5-4-402(a) (Repl. 2006), parole eligibility is within the domain
of the executive branch, specifically the ADC. Cridge v. Hobbs, 2014 Ark. 153 (per curiam).
Appellant did not establish that there was a justiciable issue within the purview of a declaratory-
judgment proceeding or that there was a cause on which a petition for writ of mandamus could
be granted.
Morever, we have held that a criminal defendant may not use a declaratory-judgment
action or a suit for an extraordinary writ to challenge a criminal conviction and sentence.
Manning v. Norris, 2011 Ark. 439 (per curiam); see Johnson v. State, 340 Ark. 413, 12 S.W.3d 203
(2000) (per curiam) (holding that an attack on appellant’s judgment of conviction was not
cognizable in a suit for declaratory judgment or mandamus). A criminal defendant is required
to raise any claims regarding his judgment and sentence in the trial court or on direct appeal, and
he may not raise them in a collateral civil proceeding at a later time. Manning, 2011 Ark. 439; see
also Williams v. State, 346 Ark. 54, 56 S.W.3d 360 (2001). A declaratory-relief action is not a
substitute for an ordinary cause of action. Manning, 2011 Ark. 439; see also Davis v. Hobbs, 2011
Ark. 249 (per curiam); McKinnon v. Norris, 366 Ark. 404, 231 S.W.3d 725 (2006) (per curiam).
Further, a writ of mandamus cannot be used by a pro se petitioner as a substitute for raising an
issue in the trial court or in an appeal. Manning, 2011 Ark. 439; see also Gran v. Hale, 294 Ark.
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563, 745 S.W.2d 129 (1988).
Affirmed.
James Edward Smith, pro se appellant.
Dustin McDaniel, Att’y Gen., by: LeaAnn J. Adams, Ass’t Att’y Gen., for appellee.
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