Neely v. McCastlain
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SUPREME COURT OF ARKANSAS
No.
08-973
Opinion Delivered April
LARRY NEELY,
9, 2009
VS.
APPEAL FR O M THE LONOKE
COUNTY CIRCUIT COURT,
NO. CV-2007-67,
HON. LANCE HANSHAW, JUDGE,
HON. LONA MCCASTLAIN, Prosecuting
Attorney, in her official capacity as
Prosecuting Attorney of the 23rd Judicial
District, Lonoke County, Arkansas, and
STATE OF ARKANSAS,
APPELLEES,
AFFIRMED.
APPELLANT,
JIM GUNTER, Associate Justice
Appellant Larry Neely appeals the grant of summary judgment to the State on
appellant’s complaint for declaratory judgment and writ of habeas corpus. Appellant argues
that the trial court erred in holding that (1) appellant failed to present a justiciable issue with
regard to his declaratory judgment action, and (2) appellant was in “constructive custody” for
purposes of habeas corpus and denying the habeas writ on the merits. We granted appellees’
motion to transfer this case to our court; therefore, we have jurisdiction pursuant to Ark. R.
Sup. Ct. 1-2(b). We affirm the grant of summary judgment.
In October 2003, several young men in the Lonoke area, ages fourteen to seventeen,
received telephone calls from an unknown individual. In these phone calls, the caller sexually
propositioned the boys, specifically suggesting that they engage in oral sex with him. The calls
were reported to the Lonoke Police Department and were traced to appellant, who was living
in Albuquerque, New Mexico. On August 12, 2005, appellant pled guilty to five
misdemeanor counts of harassing communications and two felony counts of sexual indecency
with a child. Appellant was sentenced to five years’ probation, including three years’
supervised, and ordered to pay $1900 in costs and fees. Pursuant to an agreement with the
prosecuting attorney, the supervision of appellant’s probation was transferred to New Mexico.
On June 29, 2006, the Lonoke prosecuting attorney filed a petition to revoke
appellant’s probation, alleging that he had (1) refused to wear a GPS device as required by the
New Mexico Probation Department; (2) violated the condition that he not live within 1000
feet of a school; and (3) failed to cooperate with his supervising officer.1 On August 11, 2006,
appellant filed a petition for a writ of habeas corpus in the United States District Court for the
Eastern District of Arkansas, alleging, inter alia, that the statute under which he was convicted,
Ark. Code Ann. § 5-14-110 (Supp. 2007),2 was unconstitutional, and that his felony
convictions violated due process because the crimes did not occur within Arkansas’s territorial
jurisdiction. The district court, however, held that appellant had not met his burden of
showing that he had exhausted his state remedies; therefore the district court stayed and held
in abeyance appellant’s federal petition pending his pursuit of state-court remedies.
Thereafter, on February 12, 2007, appellant filed a complaint for declaratory judgment
1
This petition to revoke has since been dismissed.
2
Arkansas Code Annotated section 5-14-110 has been amended subsequent to appellant’s
conviction in 2005; however, the subsection under which appellant was convicted,
subsection (a)(1), has remained unchanged.
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and writ of habeas corpus in the Lonoke County Circuit Court. In his action for declaratory
judgment, he first argued that Ark. Code Ann. § 5-14-110 was unconstitutionally vague and
overbroad. Arkansas Code Annotated section 5-14-110(a) provides that a person commits
sexual indecency with a child if: “Being eighteen (18) years of age or older, the person solicits
another person who is less than fifteen (15) years of age or who is represented to be less than
fifteen (15) years of age to engage in: (A) Sexual intercourse; (B) Deviate sexual activity; or
(C) Sexual contact.” Appellant argued that the term “solicits” in the statute was vague, and
he asserted that the statute was overbroad because it criminalized speech that would not
constitute a felony if addressed to a person over fifteen years of age. Appellant also argued that
his due process rights had been violated because Arkansas never had territorial jurisdiction
over him; that § 5-14-110 impermissibly authorizes conviction on a strict liability basis
because it fails to require proof that he knew or should have known the victim was under the
age of fifteen years, which is contrary to the requirement of proof of culpability in the
criminal code; and that § 5-14-110 improperly places the burden of proof on the element of
knowledge of the victim’s age on the accused if the affirmative defense of lack of knowledge
or mistake is to be used, which also compromises the accused’s Fifth Amendment right to
remain silent. In his petition for a writ of habeas corpus, appellant repeated his territorial
jurisdiction argument, contending that his criminal acts were not performed within the State
and that the State’s improper exercise of jurisdiction violated his federal constitutional
protections.
The complaint named the State of Arkansas and Lona McCastlain, in her capacity as
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prosecuting attorney of the 23rd Judicial District, Lonoke County, Arkansas, as defendants.
On August 20, 2007, the defendants/appellees filed a joint motion for summary judgment.
At a hearing on the motion held March 20, 2008, the parties agreed that no additional
evidence in the form of witness testimony or briefs was necessary, that no facts were in
dispute, and that it was a “clear-cut case of just deciding matters of law.” Appellant initially
argued that the court may find that it had no jurisdiction to grant either the declaratory
judgment or the writ of habeas, because appellant was not “in custody,” but the court ruled
that the prosecuting attorney had “constructive custody” of appellant because his probation
was established in Arkansas. In its written order, entered on May 8, 2008, the court held that,
with respect to the habeas portion of appellant’s petition, the State had constructive custody
over appellant until the supervised portion of his probation has ceased and that the motion for
summary judgment was granted in its entirety, the issues were moot, and the habeas petition
was denied on its merits. Regarding the declaratory judgment portion of appellant’s petition,
the court held that there was no justiciable controversy, which was required for declaratory
relief, and there were no more issues for the court to decide because appellant had entered
into a negotiated plea. A notice of appeal from this order was filed on June 2, 2008.
The law is well settled that summary judgment is to be granted by a trial court only
when it is clear that there are no genuine issues of material fact to be litigated, and the party
is entitled to judgment as a matter of law. Jackson v. Blytheville Civ. Serv. Comm’n, 345 Ark.
56, 43 S.W.3d 748 (2001). The evidence is viewed most favorably for the person resisting the
motion, and any doubts or inferences are resolved against the moving party. Id. But in a case
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where the parties agree on the facts, this court simply determines whether the appellee was
entitled to judgment as a matter of law. Id.
For his first argument on appeal, appellant asserts that the trial court erred in holding
that no justiciable issue existed in the complaint for declaratory judgment and granting
summary judgment on that basis. Our statute on the right to a declaratory judgment states:
Any person interested under a deed, will, written contract, or other writings
constituting a contract or whose rights, status, or other legal relations are affected by
a statute, municipal ordinance, contract, or franchise may have determined any
question of construction or validity arising under the instrument, statute, ordinance,
contract, or franchise and obtain a declaration of rights, status, or other legal relations
thereunder.
Ark. Code Ann. § 16-111-104 (Repl. 2006). While this section recognizes a party’s right to
a declaratory judgment, a justiciable controversy is required. Jegley v. Picado, 349 Ark. 600, 80
S.W.3d 332 (2002). A case becomes moot when any judgment rendered would have no
practical legal effect upon a then-existing legal controversy. Shipp v. Franklin, 370 Ark. 262,
258 S.W.3d 744 (2007). In other words, a moot case presents no justiciable issue for
determination by the court. Id.
Appellant argues that just as in Jegley, supra, in which private citizens were allowed to
challenge the constitutionality of a criminal statute through a declaratory judgment action, he
should be allowed to challenge the constitutionality of the statute under which he was
convicted through a declaratory judgment action. In response, appellees assert that appellant’s
claims are not cognizable in a declaratory action, citing to Bailey v. State, 312 Ark. 180, 848
S.W.2d 391 (1993), in which this court held that Bailey was not allowed to challenge, via a
declaratory judgment or writ of mandamus, the constitutionality of the sentences he received
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after being found guilty and sentenced for drug crimes. In Bailey, this court noted that a
petition for post-conviction relief attacking a judgment, regardless of the label placed on it by
the petitioner, is considered pursuant to our post-conviction rule, Ark. R. Crim. P. 37. Id.
at 182, 848 S.W.2d at 392. A petitioner seeking Rule 37 post-conviction relief must be
incarcerated in order for the rule’s remedies to be available, and a person on parole or
probation is not in custody for purposes of Rule 37. See Bohanan v. State, 336 Ark. 367, 985
S.W.2d 708 (1999) (holding that paroled inmate did not meet the “in custody” requirement
for post-conviction relief); Reeves v. State, 339 Ark. 304, 5 S.W.3d 41 (1999) (noting that a
person on probation is, by definition, not in custody). Because appellant is on probation, and
therefore clearly not in custody, we hold that he is not entitled to any post-conviction relief
pursuant to Rule 37 and affirm the grant of summary judgment with regard to the declaratory
judgment action.
The lack of custody is also dispositive of appellant’s second argument regarding his
habeas corpus petition. Arkansas law is clear that a circuit court does not have jurisdiction to
release on a writ of habeas corpus a prisoner not in custody in that court’s jurisdiction. Pardue
v. State, 338 Ark. 606, 999 S.W.2d 198 (1999). For his second point on appeal, appellant takes
issue with the court’s finding that the State had “constructive custody” of appellant, thereby
making jurisdiction proper in appellant’s habeas corpus action. Appellees agree with appellant
that he was not in custody, citing Reeves, supra. Therefore, appellees contend that the circuit
court properly denied appellant habeas relief, albeit for a different reason than the one
articulated by the court. We agree that appellant was not in custody for purposes of habeas
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corpus and therefore affirm the grant of summary judgment on the habeas corpus claim. See
Harris v. City of Fort Smith, 366 Ark. 277, 234 S.W.3d 875 (2006) (holding that a trial court’s
judgment can be affirmed as reaching the right result for the wrong reason).
Affirmed.
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