Pitts v. Hobbs , 2013 Ark. 457 ( 2013 )

Cite as 2013 Ark. 457
SUPREME COURT OF ARKANSAS
No. CV-11-106
Opinion Delivered November 7, 2013
KENNETH RAY PITTS PRO SE MOTION FOR LEAVE TO
APPELLANT FILE AMENDED COMPLAINT and
PRO SE APPEAL FROM THE
v. LINCOLN COUNTY CIRCUIT
COURT, 40LCV-10-100, HON. JODI
RAY HOBBS, DIRECTOR, RAINES DENNIS, JUDGE
ARKANSAS DEPARTMENT OF
CORRECTION, and GLEENOVER
KNIGHT, RECORDS SUPERVISOR,
ARKANSAS DEPARTMENT OF APPEAL AFFIRMED; MOTION
CORRECTION DISMISSED.
APPELLEES
PER CURIAM
In 2006, appellant Kenneth Ray Pitts was found guilty by a jury in the Pulaski County
Circuit Court of second-degree sexual assault and sexual indecency with a child. He was
sentenced as a habitual offender to consecutive sentences of 720 months’ imprisonment for
the charge of second-degree sexual assault and 180 months’ imprisonment for the charge of
sexual indecency with a child. The Arkansas Court of Appeals affirmed. Pitts v. State,
CACR-07-110 (Ark. App. Oct. 31, 2007) (unpublished).
In 2010, appellant filed in the Lincoln 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. The circuit court entered an order that denied and
dismissed the petition with prejudice, and appellant timely lodged an appeal from the order.
Cite as 2013 Ark. 457
Now before us is appellant’s pleading entitled, “Pro Se Motion for Leave to File an
Amended Complaint Pur. R. 15(a) and 19(a) Fed. R. Civil P. and 18 U.S.C. § 3583(a)
Sentencing Guidelines.” In the instant pleading, appellant appears to argue that his sentence
should be dismissed as unconstitutional on the ground that the trial judge did not follow
federal sentencing guidelines. Appellant also cites Arkansas Code Annotated sections 16-112-
101, et seq. (Repl. 2006), and alleges that the Pulaski County Circuit Court lacked
jurisdiction and that he is being held pursuant to an invalid conviction. To the extent that
appellant seeks to file an amended complaint, the circuit court lost jurisdiction over the parties
and the subject matter in controversy once the record on appeal was lodged with this court.
See Watkins v. State, 2010 Ark. 156, 362 S.W.3d 910 (per curiam) (noting that once the
appeal transcript is lodged in the appellate court, the circuit court loses jurisdiction to enter
any additional rulings). To the extent that appellant seeks a writ of habeas corpus, any
petition for writ of habeas corpus is properly addressed to the circuit court in the county in
which the petitioner is held in custody. Wilencewicz v. Hobbs, 2012 Ark. 230 (per curiam).
We therefore dismiss the motion and affirm the circuit court’s order denying appellant’s
petition for declaratory relief and for writ of mandamus.
A petition for declaratory judgment and for 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
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controversy must be ripe for judicial determination. 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. 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 to the relief
sought and the absence of any other remedy. Id. But, a writ of mandamus will not lie to
control or review matters of discretion. Id.
Appended to appellant’s petition for declaratory judgment and for writ of mandamus
were four time-computation cards. Two time-computation cards, dated November 27, 2007,
and February 8, 2008, indicated that appellant’s parole-eligibility status for the sexual-
indecency sentence was one-third, and his parole-eligibility status for the second-degree
sexual-assault sentence was noted with an asterisk. Two additional time-computation cards,
dated June 12, 2009, and March 19, 2010, indicated that appellant’s parole-eligibility status
for the sexual-indecency sentence was one-third, and his parole-eligibility status for the
second-degree sexual-assault sentence was noted with the number, 1805, and an asterisk. The
“1805*” notation referred to Act 1805 of 2001, codified at Arkansas Code Annotated section
16-93-609 (Supp. 2003). That statute provides that any person who commits a felony offense
after August 13, 2001, and who has previously been found guilty of, or pled guilty to, a felony
offense, shall not be eligible for parole. Ark. Code Ann. § 16-93-609(b).
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On appeal, appellant argues that the Arkansas Department of Correction (ADC)
incorrectly applied section 16-93-609 to the calculation of his parole-eligibility date for the
720-month sentence, which was imposed for the charge of second-degree sexual assault.
Specifically, appellant asserts that section 16-93-609 was not applicable to either of his
sentences because it was not so indicated on his judgment-and-commitment order. While
appellant argues that a parole-eligibility statute cannot be applied to a sentence absent some
reference to that particular statute on the judgment-and-commitment order, such is not the
case, and appellant has failed to cite to any convincing authority otherwise.
The law is well settled that parole eligibility is determined by the law in effect at the
time the crime is committed. Aguilar, 2011 Ark. 329. The determination of parole eligibility
is solely within the province of the ADC. Anderson v. Hobbs, 2013 Ark. 354 (per curiam).
Section 16-93-609(b), in effect at the time appellant committed the crimes of second-degree
sexual assault and sexual indecency with a child, provided as follows:
(1) Any person who commits . . . any felony sex offense subsequent to August 13,
2001, and who has previously been found guilty of or pleaded guilty or nolo
contendere to . . . any felony sex offense shall not be eligible for release on parole by
the board.
(2) For purposes of this subsection, “a violent felony offense or any felony sex offense”
means those offenses listed in § 5-4-501(d)(2).
The ADC correctly applied section 16-93-609(b) to appellant’s sentence for second-degree
sexual assault, which he committed subsequent to August 13, 2001.1 Second-degree sexual
assault is listed as one of the felony sex offenses referred to in section 16-93-203(b)(2). See
1
The record reflects that commission of the crime occurred on or about May 15, 2004.
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Ark. Code Ann. § 5-4-501(d)(2)(A)(xi) (Supp. 2003). At trial, certified copies of two
judgment-and-commitment orders were admitted to prove appellant’s status as a habitual
offender. Those documents indicated that appellant was convicted of first-degree sexual abuse
in 1990 and pled guilty to first-degree sexual abuse in 1984. At the time that appellant was
convicted and sentenced for the crimes of sexual assault in the second degree and sexual
indecency with a child, first-degree sexual abuse was listed in section 5-4-501(d)(2) as one of
the referenced felony sex offenses. See Ark. Code Ann. § 5-4-504(d)(2)(A)(viii) (Supp.
2003).2
Appellant also raises arguments that are not preserved for our review. Specifically,
appellant raises allegations of trial error that are precluded by the law-of-the-case doctrine,3
as well as a claim of an ex-post-facto violation for which appellant failed to obtain a ruling.
Nevertheless, appellant’s claim that application of Act 1805 to his sentence amounts to an ex-
post-facto application of the law is without merit. There are two critical elements that must
be present for a criminal law to be ex post facto: (1) it must be retrospective, that is, it must
apply to events occurring before its enactment; (2) it must disadvantage the offender affected
by it. Brown v. Lockhart, 288 Ark. 483, 707 S.W.2d 304 (1986). Neither element is present
2
The statute has since been amended by Act 827 of 2007, which repealed the subsection
listing “sexual abuse in the first degree.”
3
Appellant asserts on appeal that the trial court should not have allowed testimony
regarding his prior conviction of first-degree sexual abuse. This argument was raised by appellant
on his direct appeal, and the court of appeals found no error in the admission of the testimony
in question. Pitts, CACR-07-110, slip op. at 2. Thus, the argument is barred by the law-of-the-
case doctrine. See Strong v. Hobbs, 2013 Ark. 376 (per curiam) (explaining that, where the merits
of a claim were addressed and adjudicated in a prior appellate decision, that issue is settled and
may not be revisited in a subsequent appeal).
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in this case. Act 1805 was in effect at the time of appellant’s present offenses, and it is applied
by the ADC to the present offense of second-degree sexual assault, not to appellant’s prior
convictions. Therefore, there was no violation.
As appellant failed to show that he was entitled to declaratory judgment or a writ of
mandamus, we affirm the circuit court’s order denying relief.
Appeal affirmed; motion dismissed.
Kenneth Ray Pitts, pro se appellant.
Dustin McDaniel, Att’y Gen., by: Christian Harris, Ass’t Att’y Gen., for appellee.
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