Carroll v. Hobbs , 2014 Ark. LEXIS 506 ( 2014 )

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SUPREME COURT OF ARKANSAS
No. CV-13-763
Opinion Delivered September 25, 2014
CONRAY CARROLL PRO SE APPEAL FROM THE
APPELLANT JEFFERSON COUNTY CIRCUIT
COURT
V. [NO. 35CV-13-279]
RAY HOBBS, DIRECTOR, ARKANSAS HONORABLE JODI RAINES DENNIS,
DEPARTMENT OF CORRECTION JUDGE
APPELLEE
AFFIRMED.
PER CURIAM
In 1997, judgment was entered reflecting that appellant Conray Carroll had entered a plea
of guilty to rape for which he was sentenced as a habitual offender to 720 months’
imprisonment. In 2013, 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 was being held. The circuit
court dismissed the petition, and appellant brings this appeal from the order.1
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
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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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Crawford v. Cashion, 2010 Ark. 124, 361 S.W.3d 268 (per curiam).
Appellant argued in the petition that the application of Arkansas Code Annotated section
16-93-611 (Supp. 1995) to his sentence was an unconstitutional “sentence enhancement” illegally
applied by the ADC without a court order. The judgment-and-commitment order in appellant’s
case reflects that he was sentenced as a habitual offender under Arkansas Code Annotated
section 5-4-501(c). His sentence is also subject to the provisions of Arkansas Code Annotated
section 16-93-611(a)(1), whereby he is required to serve at least seventy percent of his sentence
before being eligible for parole or transfer, and which states that the seventy-percent
requirement applies notwithstanding any law allowing the award of meritorious good time or any
law to the contrary. His eligibility for parole was determined by the law in effect at the time the
offense was committed in 1996. See Boles v. Huckabee, 340 Ark. 410, 12 S.W.3d 201 (2000).
The purpose of the declaratory-judgment statutory scheme is to settle and to afford relief
from uncertainty and insecurity with respect to rights, status, 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-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
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to issue. Cridge v. Hobbs, 2014 Ark. 153 (per curiam); see also Crawford, 2010 Ark. 124, 361 S.W.3d
268. 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).
Appellant argues that the appellee has denied him due process of law by applying the
statutes at issue to his case. There is, however, 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 v. Hobbs, 2013 Ark. 439 (per curiam), 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
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
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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 guilty to rape committed in 1996, an offense referenced in section
16-93-611, and the ADC correctly applied section 16-93-611 to appellant’s sentence to
determine his parole-eligibility date. Section 16-93-611, in effect when appellant committed the
offenses, stated as follows:
Notwithstanding any law allowing the award of meritorious good time or any other law
to the contrary, any person who is found guilty of or who pleads guilty or nolo
contendere to . . . rape, § 5-14-103, shall not be eligible for parole until the person serves
seventy percent (70%) of the term of imprisonment to which the person is sentenced.
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We have recognized that this version of section 16-93-611 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).
Appellant also asserts that it was error for him to be subjected to two statutes governing
parole eligibility. He argues that either the 100-percent requirement of section 5-4-501(c) or the
70-percent requirement of section 16-93-611(a)(1) must apply to him. He argues for the
application of section 5-4-501(c), presumably because it would require him to serve his sentence
until he reached the age of fifty-five before being eligible for parole, which would be more
favorable to him.2
Appellant was sentenced under the provisions of Acts 1009 and 1101 of 1995, codified
at section 5-4-501(c). Under the statute, rape is one of the felonies enumerated by section 5-14-
103 as a serious felony involving violence. However, the provision of section 5-4-501(c) denying
parole or transfer eligibility to the defendant convicted of a serious felony involving violence was
abrogated by section 16-93-1302(f) (Supp. 1995), which stated that inmates sentenced under the
provisions of section 5-4-501(c) or 5-4-501(d) for serious violent felonies may be considered
eligible for parole or community-punishment transfer upon reaching regular parole or transfer
eligibility, but only after reaching a minimum age of fifty-five. As stated, appellant’s sentence
2
Appellant cites an opinion issued by the Arkansas Attorney General as support for the
assertion, but such opinions are not binding precedent. See Ark. Prof’l. Bailbondsman Licensing Bd.
v. Oudin, 348 Ark. 48, 69 S.W.3d 855 (2002); see also Thompson v. Hall, 2012 Ark. 66, 359 S.W.3d
387.
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was also subject to section 16-93-611(a)(1) which required him to serve seventy percent of his
sentence.
Appellant’s contention that only one statute can apply to his parole eligibility is not well
founded. The applicable provision of section 16-93-611(a)(1) (Act 1326 of 1995) was enacted
after the applicable provisions of sections 5-4-501(c) and 16-93-1302(f) in the same legislative
session, and the legislature is presumed to have been aware of the prior Acts from that same
legislative session. See Brock v. Townsell, 2009 Ark. 224, 309 S.W.3d 179. Section 16-93-611(a)(1)
specifically provides that the seventy-percent requirement applies to rape convictions
notwithstanding any law allowing the award of meritorious good time or any other law to the
contrary. Accordingly, the provision applies to the “regular parole or transfer eligibility” referred
to in section 16-93-1302(f) for a person convicted of rape and sentenced under section 5-4-
501(c). As further indication of legislative intent, section 16-93-611 was amended in 1997 by
Act 1197 to clarify that the seventy-percent requirement did apply to a sentence prescribed
under section 5-4-501(c). See Rosario v. State, 319 Ark. 764, 874 S.W.2d 888 (1995) (clarification
made by subsequent amendment may indicate legislative intent). Statutes relating to the same
subject should be read in a harmonious manner if possible. Gardner, 2013 Ark. 439. All
legislative acts relating to the same subject matter are said to be in pari materia and must be
construed together and made to stand if they are capable of being reconciled. Id. (citing Hobbs
v. Baird, 2011 Ark. 261); Sesley v. State, 2011 Ark. 104, 380 S.W.3d 390. Repeals by implication
are strongly disfavored by the law, and a statute will be impliedly repealed in Arkansas only
when two enactments cannot stand together. Cox v. State, 365 Ark. 358, 229 S.W.3d 883 (2006).
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Repeal by implication is recognized in only two situations: (1) where the statutes are in
irreconcilable conflict, and (2) where the legislature takes up the whole subject anew, covering
the entire subject matter of the earlier statute and adding provisions clearly showing that it was
intended as a substitute for the former provision. Gardner, 2013 Ark. 439 (citing Thomas v. State,
349 Ark. 447, 79 S.W.3d 347(2002)). Appellant did not demonstrate that both the statutory
provisions requiring him to be fifty-five years of age and also to have served seventy percent of
his sentence should not have been applied to his parole or transfer eligibility or that he was
entitled to any relief by means of a declaratory judgment or a writ of mandamus on any ground
raised in his petition.
Affirmed.
Conray Carroll, pro se appellant.
Dustin McDaniel, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y Gen., for appellee.
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