Allen T. Robinson v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

OCTOBER 26, 2000

ALLEN T. ROBINSON

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

99-1061

AN APPEAL FROM THE CIRCUIT COURT OF LINCOLN COUNTY,

NO. LCIV-96-91-3

HONORABLE FRED D. DAVIS III,

CIRCUIT JUDGE

AFFIRMED

In 1993, appellant, Allen T. Robinson, pleaded guilty to rape, possession of a firearm, and failure to appear in circuit court. Appellant received concurrent sentences of thirty-five years, fifteen years and ten years, respectively, in the Arkansas Department of Correction. In July of 1996, appellant filed a petition for declaratory judgment and a writ of mandamus alleging that the trial court failed to advise him that he would have to serve three-fourths of his sentence before becoming eligible for parole. Appellant argued that this failure by the trial court violated Arkansas Rule of Criminal Procedure 24.4, thereby making his plea involuntary. The circuit court denied appellant's petition because appellant alleged trial error and not error by the Department of Correction in its enforcement of the parole requirements against appellant.

On appeal, Robinson does not assign error to the trial court's finding about the cognizability of his claim. Rather, he continues to argue the merits of his case that the sentencingcourt failed to properly advise him about his parole eligibility. Because appellant does not challenge the circuit court's finding, we can affirm.1 But in addition, appellant's argument fails because it is more properly raised in Rule 26.1, or Rule 37.2 At the time that appellant filed his declaratory judgment action, the time limitations under Rule 26.1 and Rule 37 had elapsed. Therefore, it appears that appellant was attempting to use a declaratory judgment action to revive issues that are now untimely. The circuit court was correct in its disposition of this claim.

Appellant has also set forth a second point on appeal. He argues that the circuit court erred when it failed to make written findings of facts and conclusions of law in denying appellant's petition. After reviewing the record, it is apparent that appellant did not raise this issue below. We will not address arguments, even constitutional arguments, raised for the first time on appeal. Foster v. State, 66 Ark. App. 183, 991 S.W.2d 135 (1999).

Affirmed.

1 Despite appellant's procedural failure, his argument that the trial court should have informed appellant under Ark. R. Crim. P. 24.4 that he would have to serve three-fourths of his sentence would not prevail. Appellant does not cite any persuasive authority that requires the trial court to make the explanation suggested. There is no indication from the Arkansas Rules of Criminal Procedure that the trial court must advise appellant on parole matters. Also, in Haywood v. State, 288 Ark. 266, 704 S.W.2d 168 (1986), we noted that neither the state nor defense counsel is required to inform a defendant with information about parole eligibility in order for the defendant's plea of guilty to be voluntary.

2 An attack on the trial court's actions during sentencing is cognizable under Ark. R. Crim. P. 26.1 or Ark. R. Crim. P. 37 and not in a declaratory judgment action. A trial court may treat a declaratory judgment action as a petition under Rule 37 if timely. See Haywood v. State, 288 Ark. 266, 704 S.W.2d 168 (1996).