Lenard v. Kelley , 519 S.W.3d 682 ( 2017 )

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SUPREME COURT OF ARKANSAS.
No. CV-16-747
Opinion Delivered May 18, 2017
RICKY LYNN LENARD, SR.
APPELLANT
PRO SE APPEAL FROM THE JEFFERSON
V. COUNTY CIRCUIT COURT
[No. 35CV-15-534 ]
WENDY KELLEY, DIRECTOR,
ARKANSAS DEPARTMENT OF HONORABLE JODI RAINES
CORRECTION; JOHN FELTS, DENNIS, JUDGE
DIRECTOR, ARKANSAS BOARD OF
PAROLE; SHERI FLYNN, AFFIRMED IN PART; REVERSED AND
ADMINISTRATOR, SEX OFFENDER REMANDED IN PART.
COMMUNITY NOTIFICATION
APPELLEES
PER CURIAM
Pending before this court is an appeal filed by Ricky Lynn Lenard, Sr., from the
denial of his petition for declaratory relief and a writ of mandamus regarding decisions made
by the Arkansas Board of Parole (Board) on April 29, 2014, to rescind a finding that he was
eligible for transfer, and a later decision made by the Board on March 30, 20151 to deny
Lenard’s transfer eligibility for an additional period of two years. Lenard alleges on appeal,
as he did below, that the Board had erroneously rescinded his transfer eligibility based on a
disciplinary action taken by the Arkansas Department of Correction (ADC). Lenard further
1The Board held two separate hearings with respect to Lenard’s eligibility for transfer.
The first was on February 26, 2015, and the Board’s decision was rendered on March 4,
2015. A second hearing, this one considering a request for reconsideration, was held on
March 22, 2015, and the Board came to the same conclusion and entered its final decision
on March 30, 2015.
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contends that the Board subsequently denied his transfer eligibility by erroneously taking
into consideration a Sex Offender Community Notification Assessment (SOCNA) that was
implemented in accordance with the Sex Offender Registration Act (SORA), codified at
Arkansas Code Annotated sections 12-12-901 to –927 (Supp. 2009). For the reasons stated
below, we affirm in part and reverse and remand in part.
Before addressing the merits of Lenard’s declaratory action, it is necessary to set forth
the facts surrounding Lenard’s underlying convictions that led to his current incarceration
in the ADC. In November 2010, Lenard pleaded nolo contendere to fourth-degree sexual
assault, was sentenced to time served in the Jefferson County jail, and ordered to register as
a sex offender. On March 5, 2012, Lenard was notified by an official with the Sex Offender
Screening and Risk Assessment Committee (SOSRA) 2 that he had been assigned a level-
three risk assessment for purposes of community-notification requirements, due to Lenard’s
failure to appear for his scheduled assessments. Then, in July 2012, Lenard entered a
negotiated plea to charges of felony theft of property and criminal mischief and was
sentenced to 60 months’ probation.
Subsequently, in May 2013, Lenard entered a negotiated plea to violation of his
probation terms with respect to the above-cited 2012 theft and criminal-mischief
convictions and for failing to register as a sex offender as required by his 2010 conviction.
Lenard was sentenced to an aggregate term of 60 months’ imprisonment for all three crimes.
2SOSRA is the state agency responsible for assessing sex offenders and SOCNA is
the agency responsible for implementing community-notification requirements consistent
with the assessment made by SOSRA.
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The initial sentencing order classified Lenard as having committed an aggravated sex offense,
and Lenard was designated as a sexually violent predator. Lenard filed a motion to correct
the order. Consequently, the trial court entered an amended sentencing order on July 15,
2013, removing the designation of Lenard as a sexually violent predator and further
instructing that Lenard was not required to register as a sex offender and was not required
to undergo an evaluation at a facility designated by the ADC. See Lenard v. State, 2014 Ark.
478, at 1–2 (per curiam) (noting that the sentencing court had removed the erroneous sex-
offender indicators by an amended order).
On September 26, 2013, following a hearing, the Board determined that Lenard was
eligible for release to supervision by the Arkansas Department of Community Correction
on the condition that he complete a substance abuse education program prior to his release,
which Lenard completed in October 2013. On November 26, 2013, Lenard was notified
by an administrator with SOCNA that he had been assessed as a level-three offender by
default for his failure to cooperate with SOSRA.
On January 7, 2014, a hearing was conducted wherein Lenard was found guilty of a
major disciplinary infraction,3 and his punishment included 30 days’ punitive isolation, a
reduction in class status, and the forfeiture of 273 days’ good-time credit. Because of this
infraction, the Board rescinded Lenard’s transfer eligibility in April 2014. In the following
year, the Board held two separate hearings and issued a final decision in March 2015 that
It was found that Lenard had agreed to allow another inmate, Gary Stotts, to deposit
3
money into Lenard’s account for the purpose of purchasing items on behalf of Stotts, who
had been placed on commissary restrictions.
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denied Lenard’s transfer eligibility for two years. The Board also concluded that Lenard was
required to participate in the Reduction of Sexual Victimization Program (RSVP) before
becoming eligible for transfer. It is from the above-cited actions of the ADC, the Board,
and SOCNA that gave rise to this action that is currently on appeal before this court.
On October 2, 2015, and on January 4, 2016, Lenard filed two separate petitions for
declaratory relief. Attached to the petitions were documents related to the Board’s decisions
rescinding his transfer eligibility and subsequently denying his transfer eligibility for an
additional two years. A review of the petitions and attached documents reflect that Lenard
had challenged the requirement that he register as a sex offender with the ADC as a result
of his conviction for failing to register as a sex offender; that the Board had erroneously
rescinded his transfer eligibility in 2014 because he was innocent of the disciplinary
infraction; that the Board had illegally denied his transfer eligibility in 2015 based on his
classification as a level-three offender implemented by SOCNA, despite the fact that he had
been convicted of a misdemeanor sex offense.
The circuit court denied his petitions, finding that Lenard’s request for relief was
barred by the doctrine of sovereign immunity and, alternatively, finding that Lenard’s
allegations lacked merit. On appeal, Lenard makes the same arguments raised below and set
forth above regarding the denial of his eligibility for transfer in 2014 and again in 2015.
As an initial matter, appellees challenged venue because Lenard’s petitions amounted
to an action under the Administrative Procedure Act and should have been brought in either
Pulaski County, Arkansas, or in Lee County where Lenard is currently incarcerated. A
petition for declaratory relief is civil in nature and is properly filed in the county in which
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the defendants, or keeper of the records of the ADC, are located. Wiggins v. State, 299 Ark.
180, 181–82, 771 S.W.2d 759, 760 (1989). The director of the ADC is located in Pine
Bluff, Jefferson County, Arkansas. SOCNA is a division of the ADC, and the Board resides
in Pulaski County but conducts its hearings at units controlled and operated by the ADC
and in conjunction with the ADC. Moreover, when venue is appropriate as to one
defendant, then it is only proper as to co-defendants who are jointly liable with the resident
defendant. Boatmen’s Nat’l Bank of Ark. v. Cole, 329 Ark. 209, 213, 947 S.W.2d 362, 364
(1997). Therefore, this petition for declaratory relief was filed in the proper county even
though Lenard is currently incarcerated in Lee County and the Board resides in Pulaski
County. 4
The clearly-erroneous standard set forth in Rule 52(a) is the standard of review for
bench trials but not necessarily for all declaratory-judgment actions. Poff v. Peedin, 2010
Ark. 136, at 5–6, 366 S.W.3d 347, 350. We have held that a pro se petition for declaratory
relief challenging the conditions of incarceration is properly treated as a petition for
postconviction relief where the clearly erroneous standard is applied. Crawford v. Cashion,
2010 Ark. 124, at 1, 361 S.W.3d 268, 270 (per curiam).5 However, appellate courts should
4
In any event, under Rule 12(b) of the Arkansas Rules of Civil Procedure, a party
must assert the defense of improper venue in its answer or in a motion filed prior to or
simultaneously with its answer, and if he fails to do this, he waives this defense. Ark. R.
Civ. P. 12(h)(1); Gailey v. Allstate Ins. Co., 362 Ark. 568, 573, 210 S.W.3d 40, 43 (2005).
Here, respondents objected to venue but not on the basis of the residency of a co-
respondent. Therefore, any objection to venue pertaining to the Arkansas Parole Board was
waived.
5
In Crawford, the appellant challenged the constitutionality of the ADC’s actions,
alleging that the ADC had violated due process, and sovereign immunity was not an issue.
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not apply the clearly-erroneous standard if review of the underlying basis for the action is
governed by another standard. Poff, 2010 Ark. 136, at 5–6, 366 S.W.3d at 350.
We have also held that in an appeal from a decision granting summary judgment,
where the circuit court makes its decision based on whether the pleadings state sufficient
facts for an exception to sovereign immunity, we apply the abuse-of-discretion standard of
review. Smith v. Daniel, 2014 Ark. 519, at 5, 452 S.W.3d 575, 578. In those instances, we
treat the facts alleged in the complaint as true and view them in the light most favorable to
the party who filed the complaint. Id. Here, the circuit court dismissed Lenard’s petitions
as barred by sovereign immunity based on his pleadings and attached documents and
concluded that Lenard had not stated sufficient facts giving rise to an exception to the
application of the doctrine of sovereign immunity. Therefore, an abuse-of-discretion
standard is properly applied in this case. With respect to Lenard’s petition for mandamus
relief, if the right to declaratory relief is not established there is no basis for a writ of
mandamus. Cridge v. Hobbs, 2014 Ark. 153, at 2 (per curiam).
If a claim is made against the State, it is barred by the doctrine of sovereign immunity,
unless an exception to sovereign immunity applies. Mitchem v. Hobbs, 2014 Ark. 233, at 3–
5 (per curiam) (citing Ark. Dep’t of Cmty. Corr. v. City of Pine Bluff, 2013 Ark. 36, at 4, 425
S.W.3d 731, 734). This court has recognized three ways in which a claim of sovereign
immunity may be surmounted: when the State is the moving party seeking specific relief;
when an act of the legislature has created a specific waiver of sovereign immunity; and when
the state agency is acting illegally or if a state-agency officer refuses to do a purely ministerial
action required by statute. Mitchem, 2014 Ark. 233, at 3–5. This court has long recognized
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that a state agency may be enjoined if it can be shown that the agency’s action is ultra vires
or outside the authority of the agency. Fitzgiven v. Dorey, 2013 Ark. 346, at 13, 429 S.W.3d
234, 241–42. We have held that for an act to be ultra vires, it must be beyond the agency’s
or the officer’s legal power or authority. Id.; see also Hobbs v. Baird, 2011 Ark. 261, at 3–5
(affirming circuit court’s order granting declaratory relief based on the ADC’s
misinterpretation of parole statute).
Here, Lenard’s allegation that he was erroneously convicted of a disciplinary
infraction in 2014 does not establish that the ADC acted without statutory authority. The
ADC has the authority to prescribe rules and regulations to maintain order and discipline
and to conduct proceedings for dealing with violations. Ark. Code Ann. § 12-29-103
(Supp. 2009). Moreover, the Board retains the power to determine which persons shall be
placed on parole and the conditions upon which the ADC may transfer the inmate to the
Department of Community Correction. Ark. Code Ann. § 16-93-206(a)(1) and (b)(1)
(Supp. 2009). Finally, in determining eligibility, the Board is authorized to consider
whether an inmate has received a major disciplinary report against him or her that resulted
in a loss of good-time credit. Ark. Code Ann. § 16-93-206(b)(1)(C)(i).
The record before this court shows that Lenard was provided with a hearing on the
validity of the disciplinary charge, and the ADC was well within its statutory rights to impose
a reclassification and loss of good-time credit. The Board also provided Lenard with a
hearing and made the decision to rescind his transfer eligibility based on the ADC’s
conclusion that Lenard was guilty of an infraction. In view of the above, Lenard failed to
demonstrate that the ADC or the Board had acted ultra vires or outside their authority by
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disciplining Lenard or by rescinding his transfer eligibility. Fitzgiven, 2013 Ark. 346, at 13,
429 S.W.3d at 241–42. The circuit court did not abuse its discretion when it found that
this claim against the ADC and the Board was barred by the doctrine of sovereign immunity.
Mitchem, 2014 Ark. 233, at 3–5.
However, the same cannot be said as to the Board’s denial of Lenard’s transfer
eligibility in March 2015. Lenard’s petition and his argument on appeal, together with the
documents included in the record, reveal that in March 2015, the Board denied Lenard’s
transfer eligibility for a period of two years based on the following stated grounds:
“seriousness level of the crime,” “age of the victim,” and “prior criminal history.”
The law is well settled that parole eligibility is determined by the law in effect at the
time the crime is committed. Lewis v. Hobbs, 2014 Ark. 407, at 3, 443 S.W.3d 530, 532
(per curiam); see also Bosnick v. Lockhart, 283 Ark. 206, 207–08, 672 S.W.2d 52, 53 (1984).
Moreover, transfer eligibility applies to persons who “commit felonies . . . and who shall be
convicted and incarcerated for those felonies.” See Ark. Code Ann. § 16-93-1301(c) (Supp.
2009) (emphasis added). Therefore, the Board’s authority to grant or deny transfer must
correspond to felonies for which the inmate is incarcerated.
As stated above, Lenard was convicted of, and was incarcerated for, theft of property,
failure to register as a sex offender, and criminal mischief. The amended sentencing order
reflects that the theft-of-property crime was classified as a Class B felony and was committed
in April 2011; the criminal-mischief offense was classified as a Class C felony and was also
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committed in April 2011, and the failure to register as a sex offender was classified as a Class
C felony and was committed in May 2011.6
Arkansas Code Annotated section 16-93-1202(10)(A)(b) (Supp. 2009) designated
specific offenders who would be entitled to transfer to the Department of Community
Correction. This “target group” of offenders included felons convicted of theft, criminal
mischief, and all other Class C and Class D felonies that were neither violent nor sexual.
Ark. Code Ann. § 16-93-1202(10)(A)(i).7 Offenses defined as “sexual” were specifically
designated as those offenses listed in sections 5-14-101 et seq. Ark. Code Ann. § 16-93-
1202(10)(A)(iii). The sexual offenses designated in this code section do not include the
offense of failure to register as a sex offender, which is set forth in section 12-12-904 (Supp.
2009). Thus, Lenard falls within this “target group” that shall be eligible for transfer to the
Department of Community Correction after serving one-third or one-half of their
sentences. Ark. Code Ann. § 16-93-1301(c)(3)(A).
The Board acted outside its authority by denying Lenard’s transfer eligibility in
March 2015. The basis for our conclusion will be set forth below and separately analyzed
6
The relevant transfer- and parole-eligibility statutes were amended by Act 570 on
March 22, 2011. Act 570 did not contain an emergency clause and therefore did not
become effective until ninety days after its enactment. Priest v. Polk, 322 Ark. 673, 681–82,
912 S.W.2d 902, 907 (1995). Consequently, the statutes that were in effect at the time
Lenard committed the above-cited crimes were controlled by the relevant code sections in
effect in 2009 that set forth the procedures and factors to be taken into consideration for
determining parole or transfer eligibility.
7Class A and Class B felons who committed controlled substance offenses were also
included in this group, as well as unclassified felonies for which the prescribed limitations
on a sentence do not exceed the prescribed limitations for a Class C felony that are neither
sexual nor violent. Ark. Code Ann. § 16-93-1202(10)(A)(i).
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with respect to the Board’s decision to delay reconsideration for two years, together with
the three specific reasons set forth by the Board for denying Lenard’s transfer eligibility.
Two-Year Delay
The Board may deny transfer and delay reconsideration for a maximum of two years
if the offender has committed any homicide, first-degree sexual assault, second-degree sexual
assault; first-degree battery; first-degree domestic battery; and certain designated Y felonies.
Ark. Code Ann. § 16-93-206(c)(1) and (c)(2)(C). Lenard was not convicted of or
incarcerated for any of the crimes enumerated in this section, but was convicted and
incarcerated for one Class B felony and two Class C felonies. Furthermore, felons, such as
Lenard, who have committed Class B and Class C felonies are deemed eligible for transfer
after having served one-third or one-half of their sentences with credit for meritorious good
time “depending on the seriousness determination made by the Arkansas Sentencing Commission.”
Ark. Code Ann. § 16-93-1301(c)(3)(A) (emphasis added).
The Seriousness of the Crimes
The 2013 amended sentencing order under which Lenard is incarcerated classified
the seriousness of his crimes in a manner that was consistent with the determination of the
Arkansas Sentencing Commission as follows: level five for the Class B felony-theft charge
and level three for failure to register and criminal mischief, which are both Class C felonies.
Ark. Code Ann. § 16-90-803 (Repl. 2006) (authorizing the sentencing commission to
determine the levels of the seriousness of offenses from levels I through X); 154–00-001
Ark. Code R. § 4 (Weil 2008). Under the guidelines set forth by the Arkansas Sentencing
Commission, the seriousness levels for theft, failure to register, and criminal mischief fall
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below the line, resulting in a sentence of one-third to one-sixth of the time imposed. See
Beavers v. State, 2016 Ark. 277, at 3, 495 S.W.3d 76, 79; 154–00–001 Ark. Code R. § 4
(Weil 2008).
Applying the above-cited statutory parameters, Lenard has shown that the Board
miscalculated his transfer eligibility in a manner inconsistent with the law in effect at the
time he committed the crimes charged. Lewis, 2014 Ark. 407, at 4, 443 S.W.3d at 532.
Lenard was sentenced in 2013 to an aggregate term of 60 months’ imprisonment, and based
on the seriousness level of his crimes as reflected in the sentencing order and in accordance
with the Arkansas Sentencing Commission, he is eligible for parole after he had served 20
months, which is one-third of the aggregate 60-month sentence. Beavers, 2016 Ark. 277,
at 3, 495 S.W.3d at 79; 154-00-001 Ark. Code R. § 4. Therefore, the crimes for which
Lenard is incarcerated do not fall within a seriousness level that authorizes the Board’s
decision to deny Lenard’s transfer eligibility in 2015 for an additional two years.
Age of the Victim
Lenard argued below and argues on appeal that his transfer eligibility was denied
based on SOCNA’s implementation of the level-three risk assessment, designating Lenard
as a sexually violent felon, due to his failure to report for assessment as required by SORA.
Ark. Code Ann. § 12-12-917(b)(4)(A)(i). Lenard’s allegations are supported by the Board’s
determination that his transfer eligibility was denied because of the “age of the victim.”
This is so because the age of the victim is not a relevant factor with respect to the crimes of
theft, failure to register as a sex offender, and criminal mischief.
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As stated above, in 2010, Lenard was convicted of fourth-degree sexual assault
pursuant to section 5-14-127(a)(2) (Repl. 2006), which is a Class A misdemeanor. The
offense falls within the purview of SORA. Ark. Code Ann. § 12-12-903(12)(A)(f). Lenard
was not incarcerated in the ADC for that offense and was not subject to incarceration in the
ADC because it was not a felony offense. Ark. Code Ann. § 5-4-402(b) (Repl. 2006) (a
defendant convicted of a felony shall be committed to the Arkansas Department of
Correction); see also Jones v. State, 270 Ark. 328, 330, 605 S.W.2d 7, 9 (1980) (We take
judicial notice of the fact that a sentence to the Department of Correction is only ordered
in felony cases.).
After his conviction, Lenard did not comply with the requirements of SORA, in that
he repeatedly failed to appear for scheduled assessments on March 15, 2011, November 23,
2011, and February 12, 2012. Consequently, Lenard was assessed as a level-three offender
for purposes of community notification. Clearly, SOCNA had the authority to implement
the designation of Lenard as a level-three offender under the provisions of SORA. Ark.
Code Ann. § 12-12-917(b)(4)(A)(i). However, the implementation of a level-three risk
assessment by SOCNA is not a means through which a classification of a felony can be
upgraded or a misdemeanor offense can be transformed into a felony offense.
We have held that the SORA is not criminal in nature, including its assessment
process. Parkman v. Sex Offender Screening & Risk Assessment Comm., 2009 Ark. 205, at 11,
307 S.W.3d 6, 13. The sex-offender regulations set the parameters as to the extent of
information to be made public, depending on the offender’s level of dangerousness, pattern
of offending behavior, and the extent to which the information will enhance public safety.
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Burchette v. Sex Offender Screening & Risk Assessment Comm., 374 Ark. 467, 469, 288 S.W.3d
614, 616 (2008) (citing Ark. Code Ann. § 12-12-913(c)(2)(B)). Thus, classification as a
level three offender is part of a civil regulatory system, that involves a determination of the
scope of community notification, as well as the placement of work and residency limitations
for purposes of enhancing public safety. Parkman, 2009 Ark. 205, at 13–16, 307 S.W.3d at
15. The sex-offense registration scheme under SORA imposes civil but not criminal
penalties. Parkman, 2009 Ark. 205, at 11, 307 S.W.3d at 13.
Lenard was convicted and is currently incarcerated for failure to register as a sex
offender under section 12-12-904, which, as explained above, is not designated as a sexual
offense under section 16-93-1202(10)(A)(iii). Moreover, the amended sentencing order
under which Lenard is currently incarcerated specifically exempts Lenard from additional
registration requirements pursuant to SORA and indicates that Lenard had not been
adjudicated guilty of a sex offense, had not committed an aggravated sex offense, and had
not been alleged to be a sexually violent predator subject to evaluation by the ADC.
While Lenard clearly remains subject to civil regulations resulting from his failure to
cooperate in accordance with SORA, and he was subject to a criminal sanction in the form
of a conviction of a Class C felony due to this failure, he is not subject to a further criminal
penalty under the above-cited statutes governing transfer eligibility. In sum, the Board
miscalculated Lenard’s parole eligibility by applying a civil designation of Lenard as a level-
three sex offender to increase and reclassify the level of the offense for which he is currently
incarcerated and to erroneously take into consideration the age of the victim for a
misdemeanor offense for which he is not incarcerated. The Board exceeded its statutory
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authority by considering a factor that had no bearing on Lenard’s eligibility for transfer in
relation to a Class C felony offense of failure to register as a sex offender.
Prior Criminal History
The Board also based its decision upon Lenard’s prior criminal history. Again, this
finding supports Lenard’s allegations that the Board primarily considered his 2010
misdemeanor sex offense, which had been assessed as a level-three offense by SOCNA. The
Board is authorized to consider an inmate’s prior criminal history to lengthen the period of
confinement as applied to parole eligibility. Michalek v. Lockhart, 292 Ark. 301, 304, 730
S.W.2d 210, 211 (1987). However, parole eligibility is determined by an inmate’s criminal
history based on the inmate’s commission of previous crimes classified as Class Y, Class A,
or Class B felonies. Ark. Code Ann. §§ 16-93-606 to -607 (Repl. 2006). Lenard’s prior
criminal history falls outside the scope of this statutory authorization. The record
demonstrates that before his 2013 convictions for theft, failure to register, and criminal
mischief, Lenard had been convicted in 2008 of two prior felonies that included theft of
property and fraudulent use of a credit card, which, according to the judgment and
commitment order, were Class C felonies. Ark. Code Ann. § 5-36-103(a)(2) (Repl. 2006);
Ark. Code Ann. § 5-37-207(b)(1) (Repl. 2006). Moreover, Lenard’s 2010 conviction for
a sex offense was a Class A misdemeanor. Again, by taking into consideration Lenard’s prior
criminal history in denying his eligibility for transfer, the Board appeared to consider Lenard
as having been convicted of a prior felony classified as A, B, and Y felonies, apparently based
on the civil regulatory assessment as implemented by SOCNA designating Lenard as a level-
three sex offender. Again, there is no statutory basis for the Board to deny transfer based
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on Lenard’s prior criminal history of having committed two C felonies. Ark. Code Ann.
§§ 19-93-606 to -607.8
Participation in the RSVP
Finally, the Board imposed a condition for transfer eligibility that Lenard complete
the RSVP, which is a course of treatment for sexual offenders incarcerated in the ADC.
Seamster v. State, 2009 Ark. 258, at 1, 308 S.W.3d 567, 568. Lenard is a misdemeanor sex
offender who is currently incarcerated in the ADC, but he is not incarcerated for a felony
sex offense. Instead, Lenard is incarcerated under an executed sentencing order that
specifically exempted Lenard from further sex-offense-registration requirements or
evaluation by the ADC. Moreover, Lenard would not have been committed to the ADC
for a misdemeanor sex offense pursuant to statutory authority, and it follows then that
Lenard would not be subject to participation in programs specifically designed for felony
sex offenders that are committed to the ADC due to the nature and classification of the
offense. See Ark. Code Ann. § 5-4-402; Jones, 270 Ark. at 330, 605 S.W.2d at 9.
8
While prior criminal history is relevant to the Board’s risk needs assessment of
inmates eligible for transfer, there is a distinction between inmates who have committed
serious felonies, and those who have been convicted of felonies such as those for which
Lenard was convicted. Specifically, pursuant to section 16-93-206(b)(1)(C)(iii) inmates who
have not been convicted of felonies set forth in section 16-93-206(c)(1), a risk needs
assessment is relevant to a determination whether “special conditions are placed on an
inmate” who is eligible for transfer. On the other hand, inmates who have been convicted
of felonies set forth in 16-93-206(c)(1), a risk needs assessment is made for the purpose of
determining if there is “a reasonable probability that the inmate can be released without
detriment to the community.” Ark. Code Ann. § 16-93-206(c)(2)(B).
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We have repeatedly held that parole eligibility falls clearly within the domain of the
executive branch and specifically the ADC, as fixed by statute, and the judiciary has no
jurisdiction over how parole eligibility is determined or the conditions to be placed on it
once the sentence is placed into execution. Johnson v. State, 2012 Ark. 212, at 5. However,
determinations of transfer or parole eligibility as well as the conditions placed on it must
rationally correspond to the felonies for which the inmate had been convicted and incarcerated.
See Ark. Code Ann. § 16-93-1301(c). Participation in a program designed for felony sex
offenders is not a condition that is authorized by statute, regulations, or the executed
sentencing order. The Board and the ADC are authorized to fix conditions for parole
eligibility that are consistent with Lenard’s felony conviction for failure to register as a sex
offender and his failure to cooperate with the assessment requirements under SORA, but
participation in the RSVP program is a condition that is wholly inconsistent with the
conviction and sentence imposed for the Class C felony of failure to register as a sex
offender. Participation in an assessment process pursuant to SORA is clearly a condition
that would be authorized under the prevailing authority and rationally relates to the offense
for which Lenard is currently incarcerated.
For the reasons set forth above, the circuit court abused its discretion by denying
Lenard’s petition for declaratory relief with respect to the denial of his transfer eligibility on
March 30, 2015. Therefore, we reverse in part and remand this case to the circuit court for
entry of an order directing the Arkansas Parole Board and the Arkansas Department of
Correction in cooperation with the Sex Offender Community Notification Assessment
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Committee to determine Lenard’s transfer eligibility and the conditions placed on it
consistent with this opinion.
Affirmed in part; reversed and remanded in part.
Ricky Lynn Lenard, pro se appellant.
Leslie Rutledge, Att’y Gen., by: Christian Harris, Ass’t Att’y Gen., for appellee.
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