Howard v. Woodyard

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

DECEMBER 13, 2001

KENNETH HOWARD

Appellant

v.

MELBA WOODARD, RECORDS SUPERVISOR, ARKANSAS DEPARTMENT OF CORRECTION

Appellee

00-1164

APPEAL FROM THE CIRCUIT COURT OF LINCOLN COUNTY, NO. LCIV 97-57-3 HONORABLE FRED D. DAVIS, JUDGE

AFFIRMED

On January 14, 1983, appellant pleaded guilty in Miller County to theft by receiving over $100.00. He was sentenced to two years' imprisonment in the Arkansas Department of Correction (ADC). After being discharged from this sentence, appellant was convicted in Miller County on December 8, 1987, of theft of property and burglary. He was sentenced to five years' imprisonment for each offense to be served concurrently. On July 7, 1992, appellant pleaded guilty in Miller County to theft of property and was sentenced to five years' imprisonment. On January 5, 1994, appellant pleaded guilty in Miller County to aggravated robbery and was sentenced to twenty-five years' imprisonment. On June 3, 1997, appellant filed a motion for declaratory judgment in Lincoln County claiming that the ADC erroneously classified him as a fourth offender for the 1994 aggravated robbery, making him ineligible for parole.

According to appellant, he was denied due process of law because he was erroneously classified as a fourth offender and denied parole without a pre-deprivation hearing.1 In addition, appellant claims that he suffered cruel and unusual punishment and a violation of equal protection. The State responded by arguing that appellant's claims were without merit, as there was no justiciable controversy upon which declaratory relief could be granted. The circuit court agreed and denied appellant's motion. From that order comes this appeal.

According to Ark. Code Ann. § 16-93-606(b)(4) (1987):

(4) Fourth offenders shall be inmates convicted of four (4) or more felonies and who have been incarcerated in some correctional institution in the United States, whether local, state, or federal, three (3) or more times, for a crime which was a felony under the laws of the jurisdiction in which the offender was incarcerated, prior to being sentenced to a correctional institution in this state for the offense or offenses for which they are being classified.

As stated previously, appellant had been convicted of four or more felonies and was incarcerated in the ADC three times prior to receiving his twenty-five year sentence in 1994. Therefore, he was properly classified as a fourth offender pursuant to § 16-93-606(b)(4). Further, § 16-93-607(5) provides that "[i]nmates classified as fourth offenders under 16-93-606, upon entering a correctional institution in this state under sentence from a circuit court, shall not be eligible for parole ...." Therefore, the ADC was correct in its determination that appellant was not eligible for parole.

The parole classification scheme used by the ADC does not violate appellant's due process rights, as there is no constitutional right or entitlement to parole. See Michalek v. Lockhart, 292 Ark. 301, 304, 730 S.W.2d 210, 211 (1987). In Michalek, the United States Supreme Court held that "[t]here is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence." Id. (citing Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7 (1979). Because appellant's constitutional claims were without merit, there was no basisfor declaratory relief, and further, appellant had no legal interest in the controversy.

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. Dev. Fin. 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 fails to meet two of the requisite conditions for declaratory relief. Accordingly, we affirm the circuit court's denial of appellant's motion.

Affirmed.

Imber, J., not participating.

1 Any claim that appellant had pertaining to error by the trial court in declaring him a habitual offender should have been raised in the trial court at the time of sentencing.