Rogers v. Knight , 527 S.W.3d 719 ( 2017 )


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  •                                     Cite as 
    2017 Ark. 267
    SUPREME COURT OF ARKANSAS
    No.   CV-16-834
    Opinion Delivered: October   5, 2017
    HAROLD EUGENE ROGERS
    APPELLANT APPEAL FROM THE LINCOLN
    COUNTY CIRCUIT COURT
    V.                           [NO. 40CV-16-53]
    GLEENOVER KNIGHT                            HONORABLE JODI RAINES
    APPELLEE DENNIS, JUDGE
    AFFIRMED.
    RHONDA K. WOOD, Associate Justice
    Harold Eugene Rogers, appearing pro se, appeals the dismissal of his petition for
    declaratory judgment and writ of mandamus. Rogers’s petition alleged that Knight, as
    records supervisor for the Arkansas Department of Correction (ADC), miscalculated
    Rogers’s parole eligibility. The circuit court dismissed the petition with prejudice because
    Rogers was parole eligible and he had a parole hearing; therefore, no justiciable controversy
    existed. We affirm.
    In 1973, a Sebastian County jury convicted Rogers of rape and sentenced him to life
    imprisonment. In 1980, Rogers was convicted of a second rape, which he committed while
    he was in prison. For that crime, he was sentenced to ten years’ imprisonment to be served
    consecutively to his life sentence. In 2015, Rogers filed a petition for writ of habeas corpus
    alleging that because he was sixteen years old when he committed the first rape, the life
    sentence violated the Eighth Amendment under Graham v. Florida, 
    560 U.S. 48
    (2010). The
    circuit court agreed and resentenced him to ninety years’ imprisonment.
    Cite as 
    2017 Ark. 267
    On May 31, 2016, Rogers filed a petition for declaratory judgment and writ of
    mandamus pertaining to the statutes that govern his parole-eligibility dates. He alleged that
    under Bosnick v. Lockhart, 
    283 Ark. 533
    , 
    677 S.W.2d 292
    (1984), his parole eligibility as to
    both of his sentences should be governed by the parole statute in effect at the time of his
    1973 conviction because it was his “original sentence.” 1 Rogers believed the ADC was
    requiring him to serve one-half of his aggregate 100-year sentence before becoming eligible
    for parole, and he asserted that he was parole eligible.
    In response, the State asserted that Rogers’s requested relief should be denied because
    Rogers was already parole eligible and had a parole hearing on May 5, 2016. It attached an
    ADC document titled “Inmate Record Summary,” which showed that Rogers already had
    a parole hearing. It argued that because Rogers was parole eligible, there was no justiciable
    controversy. The circuit court agreed and dismissed Rogers’s petition with prejudice.
    Because the circuit court considered exhibits outside the pleadings in making its
    ruling, we will treat the dismissal as one on summary judgment. See Hotfoot Logistics, LLC
    v. Shipping Point Mktg., Inc., 
    2013 Ark. 130
    , 
    426 S.W.3d 448
    . The purpose of a declaratory
    judgment “is to settle and to afford relief from uncertainty and insecurity with respect to
    rights, status, and other legal relations.” Ark. Dep’t of Human Servs. v. Civitan Ctr., Inc., 
    2012 Ark. 40
    , 
    386 S.W.3d 432
    . Declaratory relief may be granted if the petitioner establishes (1)
    a justiciable controversy; (2) that the controversy is between persons whose interests are
    1
    At the time of his 1973 sentencing, Ark. Stat. Ann. § 43-2807 (Supp. 1971) was
    the governing parole statute. Under Ark. Stat. Ann. § 43-2807, Rogers was parole eligible
    after serving one-third of his ninety-year-sentence. However, the controlling statute at the
    time of his 1980 sentence required him to serve one-half of the sentence before he would
    be eligible for parole. See Ark. Stat. Ann. § 43-2829 (Repl. 1977).
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    adverse; (3) that the party seeking relief has a legal interest in the controversy; and (4) that
    the issue involved in the controversy is ripe for judicial determination. 
    Id. We review
    a
    circuit court’s decision that there is no justiciable controversy de novo. Brown v. State, 
    2017 Ark. 232
    , 
    522 S.W.3d 791
    .
    We agree that no justiciable controversy exists. Rogers claims he is parole eligible
    and has a right to a parole hearing. The State is not contesting his parole eligibility or his
    entitlement to a parole hearing, and in fact had provided him such prior to the filing of the
    petition. A controversy is justiciable when “a claim of right is asserted against one who has
    an interest in contesting it.” McCutchen v. City of Fort Smith, 
    2012 Ark. 452
    , at 14, 
    425 S.W.3d 671
    , 681–82 (citing MacSteel Div. of Quanex v. Ark. Okla. Gas Corp., 
    363 Ark. 22
    ,
    35, 
    210 S.W.3d 878
    , 886 (2005)). A case is nonjusticiable “when any judgment rendered
    would have no practical legal effect upon a then-existing legal controversy.” Neely v.
    McCastlain, 
    2009 Ark. 189
    , at 5, 
    306 S.W.3d 424
    , 427.
    In his petition, Rogers also asked the circuit court to issue a writ of mandamus
    directing Knight to apply Ark. Stat. Ann. § 43-2807 to both of his rape sentences so that he
    would be parole eligible. Again, the State submitted an exhibit showing he was parole
    eligible at the time he filed his petition, and he had a parole hearing. Rogers presented no
    evidence or argument to contradict this. Accordingly, the circuit court did not err in
    denying Rogers’s petition for declaratory judgment and writ of mandamus.
    Affirmed.
    BAKER and HART, JJ., dissent.
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    KAREN R. BAKER, Justice, dissenting.              I cannot agree with the majority’s
    decision to affirm the circuit court’s denial of Rogers’s petition for declaratory judgment
    and writ of mandamus. Specifically, I cannot agree that no justiciable controversy exists
    simply because Rogers was eligible for parole at the time his petition was filed and he had a
    parole hearing. Because I would reverse and remand this case for a hearing to determine
    whether a writ of mandamus is appropriate, I must respectfully dissent.
    In the July 13, 2016 order denying Rogers’s petition, the circuit court found that
    “[i]t appears that the petitioner is upset that his parole was not granted and filed this matter
    in an effort to gain immediate release.” This statement is inaccurate. What Rogers asked
    was that his parole eligibility be accurately calculated pursuant to applicable law. He did
    not ask for a parole hearing. Based on the record before us, I cannot determine whether an
    accurate calculation was completed. Specifically, the record contains two letters from
    appellant Knight to Rogers. The March 1, 2016 letter states that “[y]our total sentence of
    100 years began 11/5/1973.” The March 4, 2016 letter states that “[y]our second offense
    of Rape was committed 3/8/1980 and falls under Act 93 which came into effect 4/1/77
    and states that second offenders (which you are) falls under this Act and must serve one half
    of your time before being parole eligible.” However, another document pertaining to
    Rogers’s 1980 rape conviction contains a section entitled “Minimum Release.” This
    section reflects that Rogers’s sentence will begin on “12/08/2021.” However, the same
    document also contains a section entitled “Parole Eligibility.” This section reflects that
    Rogers’s sentence began on “05/21/1991” and his parole-eligibility date was
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    “01/17/1995.”      Based on the foregoing, I cannot say that Rogers’s parole eligibility has
    been accurately calculated pursuant to the applicable law.
    Finally, I must note that the majority cites Neely v. McCastlain for the proposition
    that “a case is nonjusticiable ‘when any judgment rendered would have no practical legal
    effect upon a then-existing legal controversy.’ 
    2009 Ark. 189
    , at 5, 
    306 S.W.3d 424
    , 427.”
    However, Neely states that “[a] case becomes moot when any judgment rendered would have
    no practical legal effect upon a then-existing legal controversy. In other words, a moot case
    presents no justiciable issue for determination by the court.” 
    Id. at 5–6,
    306 S.W.3d at 427.
    (internal citations omitted) (emphasis added). There is at least a question of fact as to
    whether Rogers’s parole eligibility was correctly calculated. Further, because it is unclear
    what impact an incorrect calculation may have on Rogers, pursuant to Neely, I cannot say
    that Rogers’s case presents no justiciable issue based on mootness.
    In sum, because I would reverse and remand this case for a hearing to determine
    whether a writ of mandamus is appropriate, I must dissent.
    JOSEPHINE LINKER HART, Justice, dissenting. In my view, Harold Eugene
    Rogers’s petition established that he pled a justiciable issue. In his Petition and brief, Rogers
    relied on Bosnick v. Lockhart, 
    283 Ark. 206
    , 
    672 S.W.2d 52
    (1984), which, as in the case
    before us, involved a petition for declaratory judgment and writ of mandamus. In Bosnick, a
    prisoner serving a life sentence escaped. After he was apprehended, he received a three-
    year sentence for the escape, set to run consecutive to his life term. The Department of
    Correction (ADC) calculated Bosnick’s parole eligibility in accordance with Act 93 of 1977,
    that had been passed after his life sentence had been imposed but before his sentence for
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    escape. The Bosnick court held that such a scheme violated the Ex Post Facto Clause of the
    Constitution. The Bosnick court also issued a writ of mandamus compelling the ADC to
    properly calculate and credit him with the correct parole eligibility date. Bosnick proscribed
    the type of parole eligibility calculation to which Rogers believed he was being subjected.
    Because Rogers’s petition essentially asserted the same facts upon which the Bosnick court
    held were sufficient to grant relief, stare decisis dictates that Rogers’s pleadings established a
    justiciable controversy.
    Summary dismissal of Rogers’s petition for failure to state a justiciable issue is
    permissible only if he failed to plead the requisite predicate facts necessary to establish his
    entitlement to declaratory judgment. See Crawford v. Cashion, 
    2010 Ark. 124
    , 
    361 S.W.3d 268
    (per curiam) (affirming dismissal of a declaratory-judgment petition that did not plead
    sufficient facts to establish entitlement to a declaratory judgment). The circuit court’s
    conclusion is based on the response filed by the Arkansas Department of Correction (ADC)
    on June 29, 2016, rather than Rogers’s petition. The record reflects that on March 28,
    2016, Rogers’s petition was notarized at the prison and that Rogers served his petition on
    the attorney general by U.S. Mail on March 30, 2016. At this time, Rogers had not received
    a parole hearing or a parole-eligibility date. Inexplicably, Roger’s petition was not file-
    marked until May 31, 2016. By the time his petition was actually file-marked, he had
    received a parole hearing and was denied parole. However, Rogers Petition did not ask for
    a parole hearing. It sought a proper calculation of eligibility as required by Bosnick.
    Rogers attached several documents to his declaratory judgment petition asking the
    circuit court to find that the ADC had failed to properly calculating his parole-eligibility
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    date. He also asked the court to issue a writ of mandamus requiring the ADC to calculate
    his correct date for parole-eligibility. These exhibits included his 2016 re-sentencing order
    and documents that he received from the ADC. The latter included a letter dated February
    27, 1985, informing him that his “life + 10 year sentence began on November 5, 1973”,
    and that his “release date is controlled by [his] original sentence of life”; a letter dated March
    4, 2016 informing him that his second offence, which he committed on March 8,1980,
    “falls under Act 93 which came into effect April 1, 1977”. Act 93 required him to “serve
    one half of [his] sentence before being parole eligible”. The pleading and the attached
    documents establishes that Rogers’s sought an order requiring ADC to comply with this
    court’s decision in Bosnick. The purpose of a declaratory judgment is “to settle and to afford
    relief from uncertainty and insecurity with respect rights, status, and other legal relations”.
    Ark. Code Ann. section 16-111-102(b) (Repl. 2016). Each of these requirements is met by
    Rogers pleadings.
    The Attorney General, representing the ADC, filed a response on June 29, 2016
    praying that the circuit court deny Rogers relief and dismiss his petition. Although it did
    not address the issue presented, the ADC asserted that Rogers was now parole eligible and
    attached to the response was a document titled “Inmate Record Summary”, which showed
    that Rogers had been denied parole after a hearing on May 5, 2016. Significantly, this
    document shows that it was generated on June 7, 2016. It is not logical to suggest that
    Roger’s petition failed to establish a justiciable controversy when that assertion was based
    on a document that did not exist at the time Rogers drafted his pleadings. However, the
    majority side steps the issue by asserting that the petition is a request for a parole hearing. A
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    parole hearing was not requested by the pleading that was summarily dismissed by the trail
    court.
    The circuit court’s finding of parole eligibility and dismissal of his petition for lack
    of a justiciable issue does not answer the issue presented by Rogers’s declaratory judgment
    petition. Neither the eligibility determination nor a finding that a parole hearing was held
    establishes whether the hearing related to only one sentence or both sentences for which
    Rogers was incarcerated. Likewise, whether Rogers’s parole hearing was based on ninety
    years plus ten or one hundred years is different from a hearing on the ninety years without
    granting a hearing on his second sentence of ten years. The interplay between the two
    sentences and the computation of eligibility is subject to different calculations by the ADC
    when they establish parole eligibility.       Rogers’s petition alleges a miscalculation and
    appropriately seeks a writ of mandamus. Even so, on July 13, 2016, at 8:37 a.m., the circuit
    court entered its order dismissing Roger’s petition with prejudice, because Rogers had
    received a parole hearing and therefore, had failed to state a justiciable issue.
    However, I cannot subscribe to the majority’s logic that Rogers’s failure to respond
    to the ADC’s pleading is grounds for disposing of this case. Rogers did respond in a timely
    manner on July 13, 2016. While the circuit court made a summary disposition by order
    filed July 13, 2016, the court failed to provide Rogers with notice of its intention as required
    by Arkansas Rule of Civil Procedure 56. The court’s failure to consider Rogers’s response
    is troubling, particularly so, since his response to the ADC suggests that the time calculations
    by ADC treats his two sentences separately. Exhibit F to his pleadings provides a minimum
    release date on the 1973 sentence as 12/08/2021 and exhibit E, a separate document, relates
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    to his second offense of 1980 and establishes his sentence beginning date as 12/08/2021.
    Neither, the documents nor Rule 56 was considered by the trial court or this court in the
    dismissal of Rogers petition.
    Absent evidence explaining how ADC calculated the two sentences as required by
    Bosnick, we cannot determine the merits of Rogers’s petition, and therefore I would reverse
    and remand for further proceedings.
    Harold Eugene Rogers, pro se appellant.
    Leslie Rutledge, Att’y Gen., by: Kathryn Henry, Ass’t Att’y Gen., for appellee.
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