Herbert Fletcher v. Larry Norris, Director, Arkansas Department of Correction

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

September 23, 2004

HERBERT FLETCHER

Appellant

v.

LARRY NORRIS, Director, Arkansas

Department of Correction

Appellee

CR 03-929

APPEAL FROM THE CIRCUIT COURT OF JEFFERSON COUNTY, CV 2002-848-5, HONORABLE FRED D. DAVIS, III, JUDGE

AFFIRMED

Per Curiam

In 1967, appellant was convicted of murder in the first degree and battery in the first degree. He was sentenced to consecutive terms of life imprisonment and twenty-one years', respectively. Two years later he was convicted of escape in the second degree and theft of property for which he received an additional concurrent sentence totaling six months' imprisonment. In 1984, appellant escaped a second time and fled to Oklahoma, where he committed murder. In Oklahoma, he pled guilty to murder in the first degree and was sentenced to life imprisonment, which he is still due to serve. Thereafter, appellant was returned to Arkansas where he was convicted for the second escape and was sentenced to five years' imprisonment concurrent to the 1967 convictions.

Appellant brings this appeal from the Jefferson County Circuit Court's denial of a petition for declaratory judgment. Appellant contended that he is entitled to parole pursuant to Act 50 of 1968. He further argued that, as a result of his later convictions and subsequent change in inmate identification number, he was being denied parole by the application of ex post facto parole eligibility law. The circuit court denied the petition, concluding that Act 50 of 1968 failed to grant parole eligibility to appellant because his life sentence has not been commuted to a term of years by executive clemency as required by Act 50. We 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). 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).

Appellant committed first-degree murder in 1967. At that time, parole eligibility was governed by Arkansas Statutes Annotated §43-2823. It provided that an inmate was eligible for parole after serving one-third of the time sentenced or after serving one-third of a sentence that was commuted. Ark. Stat. Ann. §43-2823 (Repl. 1964).

Act 50 of 1968 repealed Ark. Stat. Ann. §43-2823, but did not change the parole eligibility law in effect at the time appellant committed his crime. Instead, it explicitly incorporated the provisions of the repealed §43-2823 into Ark. Stat. Ann. §43-2807(b)(1) (Supp. 1971). It provided that persons sentenced to a life sentence prior to March 1, 1968, became eligible for parole after having served one-third of the time to which the life sentenced was commuted to a term of years by executive clemency. See Ark. Stat. Ann. §43-2807(b)(1) (Supp. 1971).

Appellant's parole eligibility is governed by Ark. Stat. Ann. §43-2823 (Repl. 1964). Accordingly, if his sentence was commuted by executive clemency, he would become eligible for parole after serving one-third of the time to which the sentence is commuted. Ark. Stat. Ann. §43-2823 (Repl. 1964). The record shows that executive clemency was last denied appellant in 2001. He is therefore not eligible for parole.

Despite appellant's claim to the contrary, Act 50 of 1968 did not change appellant's parole eligibility, and therefore, it is not being unconstitutionally applied as an ex post facto law. Further, the record does not support appellant's argument that the sentences imposed for his later crimes or the change in his inmate identification number are somehow affecting his parole eligibility. Indeed, the record shows that appellant has already served the terms of the concurrent sentences imposed in1969 and 1984. Accordingly, the circuit court did not error in denying appellant's petition.

Affirmed.