Gary Ensey v. Larry Norris, Director, Arkansas Department of Correction, and Post Prison Transfer Board

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

May 3, 2001

GARY ENSEY

Appellant

v.

LARRY NORRIS, Director, Arkansas

Department of Correction, and

POST PRISON TRANSFER BOARD

Appellees

99-752

APPEAL FROM THE CIRCUIT COURT OF JEFFERSON COUNTY, CIV-99-12-3, HONORABLE FRED D. DAVIS III, JUDGE

AFFIRMED

In 1994, appellant pleaded nolo contendere to first-degree sexual abuse. Imposition of sentence was withheld for five years conditioned on good behavior and other written terms. Three years later, appellant's suspended imposition of sentence was revoked after he was found guilty of second-degree escape. Appellant received a sentence of ten years' imprisonment in the Arkansas Department of Correction (ADC) for the original first-degree sexual abuse conviction, and an additional six years' imprisonment for the escape. An appeal of the revocation followed, and the Arkansas Court of Appeals affirmed in an unpublished opinion. Ensey v. State, CACR 97-852 (Ark. App. Apr. 29, 1998).

On April 16, 1998, the Arkansas Post Prison Transfer Board (Board) granted appellant a transfer from the ADC to the Department of Community Punishment (DCP) provided that he first complete the Reduction of Sexual Victimization Program (RSVP). Appellant interviewed for placement in RSVP but was denied because he refused to acknowledge that he was guilty ofa sexual offense. The Board subsequently refused to reconsider its order requiring appellant to complete RSVP as a condition for transfer.

Appellant thereafter filed a petition for declaratory judgment and writ of mandamus seeking removal of the RSVP requirement from the Boards' conditions for transfer and his immediate release on parole. The circuit court denied the petition, and in this appeal, appellant submits that the circuit court erred in doing so. We find no error and affirm.

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(a) (1987).

The purpose of a writ of mandamus is to enforce an established right or to enforce the performance of a duty. Arkansas-Democrat Gazette v. Zimmerman, 341 Ark. 771, 777, 20 S.W.3d 301, 304 (2000). A writ of mandamus is issued by this court only to compel an official or judge to take some action, and when requesting the writ, a petitioner must show a clear and certain right to the relief sought and the absence of any other remedy. Id. But a writ of mandamus will not lie to control or review matters of discretion. Id.

Appellant claims that the circuit court erred in denying him relief on his claim that the Board's requirement that he complete RSVP violated his right against self-incrimination and constituted an illegal condition for parole because placement in the program involved an admission of guilt. Appellant contends that because he pleaded nolo contendere he has never been found guilty of any sexual offense. Appellant further asserts that the circuit court erred in concluding that the Board's power to set conditions for transfer is discretionary. We disagree.

The Board authorized appellant's transfer to the Department of Community Punishment and set the conditions for the transfer as instructed to do so by Ark. Code Ann. § 16-93-206(e)(1) (Supp. 1999). In addition, the Board set conditions for appellant's transfer pursuant to Ark. Code Ann. § 16-93-1208(a)(1)(A) (Supp. 1999), which provides that the ADC will transfer an eligible offender to a community punishment program when he reaches his transfer date and in accordance with the "conditions set by the Post Prison Transfer Board." Transfer is not, however, a matter of right. Ark. Code Ann. § 16-93-1210 (Supp. 1999). The Board possesses the power and discretion to transfer based on certain conditions or to deny transfer based on a set of established criteria, and such denial is to be accompanied with a course of action to be undertaken by the inmate to rectify the Board's concerns regarding transfer. Ark. Code Ann. § 16-93-1302(a)(2)(B)(i)-(ii) (Supp. 1999). The Board's report recommending appellant's transfer states that appellant would be transferred to the supervision of the DCP if he completed RSVP. Upon completion of RSVP and his subsequent transfer, appellant would be subject to the following conditions: employment plan, periodic testing, total abstinence, intensive supervision, mental health counseling, and substance abuse counseling. The Board's action was well within its duties and discretionary power, and does not afford a basis for declaratory relief or a writ of mandamus. Appellant possessed no right to transfer when he failed to complete RVSP, the course of action established by the Board to be undertaken to rectify itsconcerns regarding appellant's transfer to DCP. Further, appellant fails to cite any authority or make a convincing argument that his plea of nolo contendere creates a right upon which declaratory relief or a writ of mandamus could issue. Such failure is sufficient reason to affirm the circuit court's denial of relief. Ayers v. State, 334 Ark. 258, 272, 975 S.W.2d 88, 95-96 (1998).

Appellant also raises on appeal claims that he failed to raise before the circuit court. It is well settled, however, that parties may not change their argument on appeal and 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).

Affirmed.