Michael Britt Hodges v. Larry Norris, Director, Arkansas Department of Correction

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

March 11, 2004

MICHAEL BRITT HODGES

Appellant

v.

LARRY NORRIS, Director, Arkansas

Department of Correction

Appellee

02-786

APPEAL FROM THE CIRCUIT COURT OF JEFFERSON COUNTY, CV 2002-406-2-5, HONORABLE FRED D. DAVIS, III, JUDGE

AFFIRMED

Per Curiam

In 1994, appellant was convicted of attempted rape and violation of a minor in the first degree. He was sentenced to twenty years' imprisonment in the Arkansas Department of Correction (ADC). He brings this appeal from the Jefferson County Circuit Court's denial of a petition for declaratory judgment. We affirm.

A petition for declaratory judgment is civil in nature. See Wiggins v. State, 299 Ark. 180, 181, 771 S.W.2d 759, 760 (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; and (4) the issue involved in the controversy must be ripe for judicial determination. Arkansas Dep't of Human Servs. v. Ross-Lawhon, 290 Ark. 578, 579, 721 S.W.2d 658, 658 (1986). Our declaratory judgment act was not intended to allow any question to be presented by any person; the matters must first be justiciable. Andres v. First Ark. Development Finance Corp., 230 Ark. 594, 606, 324 S.W.2d 97, 104 (1959). The declared legislative purpose is "to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations." Ark. Code Ann. § 16-111-102(b) (1987).

Appellant claimed that he was improperly dismissed from the ADC's Reduction of Sexual Victimization Program (RSVP) in 1998. Appellant stated that he was dismissed from the program because he refused to acknowledge that he was guilty of a sexual offense. Appellant contended that he was denied parole in 1999 because he had not completed RSVP, and that he was denied any consideration of parole until he had completed the program. Appellant stated that he filed an action in federal district court against the parole board, and filed a clemency petition. Sometime after their respective dismissal and denial, appellant attempted to escape from prison. In his request for relief, appellant sought a determination of his expected parole date if he been allowed to complete RSVP, and if that date had passed, his immediate release. He further requested that his record be expunged of the discipline he received for attempting to escape, because, according to appellant, it was brought on by his dismissal from the program. Finally, appellant requested that his good time be restored and for all past and future costs related and resulting from his declaratory judgment action.

The circuit court denied appellant's petition. The circuit court concluded that the ADC's established pre-transfer conditions were not arbitrary and did not violate appellant's rights, and that the ADC had not abused its discretion in denying appellant parole. Appellant alleges error in the circuit court's findings and in the denial of any declaratory relief. Appellant also contends that the circuit court erred in not appointing appellant counsel to represent him on appeal.

The determination of parole eligibility is in the province of the Department of Correction. Morris v. State, 333 Ark. 466, 468, 970 S.W.2d 210, 211 (1998). Parole eligibility is determined by the law in effect at the time the crime is committed. Boles v. Huckabee, 340 Ark. 410, 412, 12 S.W.3d 201, 202 (2000). Transfer for parole is not a matter of right. Ark. Code Ann. § 16-93-1210 (Supp. 1999). The Post Prison Transfer Board retains the power over who shall be placed on parole, and the time and conditions of parole. Ark. Code Ann. §§ 16-93-206(e)(1) (Supp. 1999) and 16-93-1302 (Supp. 1999). Eligible offenders are transferred by the ADC to a community punishment program "in accordance with the rules and regulations promulgated by the Board of Correction and Community Punishment and conditions set by the Post Prison Transfer Board." Ark. Code Ann. § 16-93-1208(a)(1)(A) (Supp. 1999).

The Board's April 14, 2000 report states that appellant's parole eligibility would be reviewed upon his completion of RSVP, and such a condition was well within the Board's discretionary power. Appellant has acknowledged that he was dismissed from RSVP because he refused to admit that he was guilty of the sex crimes leading to his incarceration. According to appellee, a condition of admission to RSVP is an acknowledgment by the applicant that he committed the sex crimes leading to his incarceration. Such acknowledgment is considered a necessary element for recovery or rehabilitation. Appellant has not explained or shown why such a precondition to admission to RSVP is invalid or entitles him to relief. He contends that his dismissal based upon a failure to acknowledge his guilt violates RSVP policy, but he has not produced any record in support of this claim. The burden is clearly placed on the appealing party to provide both a record and abstract sufficient to demonstrate error for appellate review. E.g. McGehee v. State, 344 Ark. 602, 43 S.W.3d 125 (2001). Appellant has failed to show that the ADC is miscalculating his parole eligibility date in a manner inconsistent with the law. Accordingly, we affirm the denial of his petition.

We also find no error in the circuit court's failure to appoint appellant counsel for this appeal. The record shows that appellant requested counsel to pursue his action, but it fails to show that the circuit court ever ruled upon the request. The record does not reveal if appellant again requested that counsel be appointed to pursue this appeal. It is well settled that parties are limited to the scope and nature of their arguments made below. Hunter v. State, 330 Ark. 198, 203, 952 S.W.2d 145, 148 (1997). In any event, there is no absolute right to appointment of counsel in civil matters. See e.g. Martin v. State, 340 Ark. 719, 13 S.W.3d 576 (2000).

Affirmed.