Walter Urquhart v. Larry Norris

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

DECEMBER 13, 2001

WALTER URQUHART

Appellant

v.

LARRY NORRIS, Director

Arkansas Department of Correction

Appellee

00-870

APPEAL FROM THE CIRCUIT COURT OF JEFFERSON COUNTY, NO. CIV 99-223-2-3 HONORABLE FRED D. DAVIS, JUDGE

AFFIRMED

Appellant pled guilty in Jefferson County to possession of cocaine with intent to deliver. He was sentenced to ten years' imprisonment to be served concurrently with the time appellant was already serving; that was, a ten year sentence on another delivery conviction and two concurrent five year sentences for aggravated assault and possession of a firearm by a felon, all to be served consecutively for an aggregate sentence of fifteen years. Appellant filed a petition for writ of declaratory judgment, claiming that the Arkansas Department of Correction Records supervisor did not follow the trial court's instructions and miscalculated his parole status and release date. Appellant argues that his original fifteen year sentence controls his parole eligibility and discharge dates, not his more recent ten year sentence; therefore, he should be released from custody once he has served his original sentence.

The State filed a motion to dismiss for failure to state facts upon which relief may be granted pursuant to Ark. R. Civ. P. 12(b)(6). The circuit court granted the motion, and from that order comes this appeal.

The issue on appeal is whether or not the Arkansas Department of Correction miscalculated appellant's parole eligibility and release date for his latest sentence. Before his most recent conviction, appellant's minimum release date was November 12, 2004. Because this recent sentence was imposed almost four years after appellant's previous convictions, his minimum release date was extended to August 23, 2008. Appellant does not agree with this calculation. According to appellant, his ten year sentence was to run concurrently with his original sentence of fifteen years. Appellant claims his sentencing order was altered to read "sentence running concurrent with the undischarged position [sic] of your 15 year sentence."

As noted by both the State and circuit court, Ark. Code Ann. § 5-4-403(b) provides that a subsequent sentence "shall run concurrently with any undischarged portion of the previous sentence." Further, the statute says absolutely nothing about the subsequent sentence being discharged by the completion of the earlier sentence when the subsequent sentence extends beyond the earlier sentence. Ricks v. State, 316 Ark. 601, 608, 873 S.W.2d 808, 812 (1994). There was no error in the computation of appellant's parole status and release date, as these calculations were done in accordance with § 5-4-403(b) .

In his brief, appellant also claims that the State miscalculated parole, transfer eligibility, and discharge dates for prior sentences and that such miscalculations resulted in various constitutional violations. However, the circuit court did not issue a ruling on these claims. It is appellant's obligation to obtain a ruling in order to properly preserve an issue for review. Beshears v. State, 340 Ark. 70, 72, 8 S.W.3d 32, 34 (2000). We have repeatedly stated that the failure to obtain a ruling on an issue at the trial court level, including a constitutional issue, precludes review on appeal. Jackson v. State, 334 Ark. 406, 412, 976 S.W.2d 370, 373 (1998). Accordingly, we affirm the circuit court's dismissal of appellant's petition pursuant to Ark. R. Civ. P. 12 (b)(6).

Affirmed.

Imber, J., not participating.