ROMARIO V. WALLER, APPELLANT
WENDY KELLEY, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION, APPELLEE
FROM THE JEFFERSON COUNTY CIRCUIT COURT [CV-2006-43-5]
HONORABLE JODI RAINES DENNIS, JUDGE
Romario V. Waller, pro se appellant.
Rutledge, Att'y Gen., by: Evelyn D. Gomez, Ass't
Att'y Gen., for appellee.
F. WYNNE, Associate Justice
V. Waller appeals from the denial of his petition for
declaratory judgment and writ of mandamus by the Jefferson
County Circuit Court. He argues that the circuit court erred
in determining that he failed to demonstrate that his parole
eligibility was required to be calculated based on his
presumptive sentence rather than the sentence imposed. He
also challenges the circuit court's determination that
his petition failed to state a claim upon which relief could
be granted, rendering it a "strike" under Arkansas
Code Annotated section 16-68-607 (Repl. 2005). We affirm in
part and reverse in part.
1996, Waller entered a plea of guilty to charges of
first-degree murder, arson, and first-degree battery. He was
sentenced to forty years' imprisonment. He had a criminal
history score of two, which, under the existing sentencing
guidelines, gave him a presumptive sentence of thirty-six
years. The Arkansas Department of Correction calculated his
earliest possible date for transfer to the Arkansas
Department of Community Corrections on parole as being August
21, 2023, which would require him to serve twenty-eight years
of his forty-year sentence. In October 2014, Waller filed a
petition for declaratory judgment and writ of mandamus
against Ray Hobbs, as Director of the Arkansas Department of
Correction,  in which he contended that the Department
incorrectly calculated his parole-eligibility date because it
was statutorily required to calculate the date based on his
presumptive sentence, not the sentence imposed.
requested that he be allowed to proceed in forma pauperis,
submitting an affidavit stating that he has no income and no
assets, including no funds in his inmate welfare account. In
accordance with Arkansas Code Annotated section 16-68-601
(Repl. 2005), Waller submitted a calculation of initial
partial filing fee, signed by an official of the Department,
showing that there had been $0 deposited into his inmate
trust account during the preceding six months. The circuit
court signed an order setting initial partial filing fee,
which was part of the same form, in which the court stated
that it found Waller not to be indigent but set an initial
filing fee of $0. There is no indication in the record that
Waller was required to pay a filing fee.
Director responded to the petition and argued that Waller had
not demonstrated entitlement to declaratory judgment or, by
extension, a writ of mandamus. Waller subsequently moved for
summary judgment. The circuit court entered an order denying
Waller's petition for declaratory judgment and writ of
mandamus in which it dismissed the petition with prejudice.
In the order, the circuit court found that Waller had
previously unsuccessfully raised the argument made in his
petition in another case and was barred from relitigating the
issue. The court further found that, to the extent Waller
raised a new argument, he failed to state a claim for which
relief could be granted. The circuit court denied
Waller's motion for summary judgment. The circuit court
further ruled that the petition counted as a
"strike" pursuant to Arkansas Code Annotated
section 16-68-607. This appeal followed. The statement of
costs in the record reflects that Waller was not required to
pay either the circuit court clerk or the court reporter any
costs in connection with the preparation of the record on
Director has argued that this court should dismiss
Waller's appeal based on Arkansas Code Annotated section
16-68-607. That provision states as follows:
In no event shall an incarcerated person bring a civil action
or appeal a judgment in a civil action or proceeding under
the Arkansas indigence statutes if the incarcerated person
has on three (3) or more prior occasions, while incarcerated
or detained in any facility, brought an action that is
frivolous, malicious, or fails to state a claim upon which
relief may be granted, unless the incarcerated person is
under imminent danger of serious physical injury.
decline to entertain the Director's request to dismiss
the appeal. The Director never argued before the circuit
court that Waller's petition or any resulting appeal
should be dismissed pursuant to section 16-68-607. Nor did
the Director make a request that the circuit court determine
the number of "strikes" Waller has under the
statute. We will not consider issues on which there was no
ruling below or arguments in support of a claim that is
raised for the first time on appeal. Girley v.
Hobbs, 2014 Ark. 325, 445 S.W.3d 494 (per curiam).
challenges the circuit court's denial of his petition. A
petition for declaratory judgment and writ of mandamus is
civil in nature. Wiggins v. State, 299 Ark. 180, 771
S.W.2d 759 (1989) (per curiam). 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; (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, 721 S.W.2d 658 (1986). 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) (Repl. 2006).
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
eligibility is determined by the law in effect at the time
the crime is committed. Boles v. Huckabee, 340 Ark.
410, 12 S.W.3d 201 (2000) (per curiam). The determination of
parole eligibility is solely within the province of the
Department of Correction. Clardy v. State, 2011 Ark.
201 (per curiam); Morris v. State, 333 Ark. 466, 970
S.W.2d 210 (1998) (per curiam).
argued below and argues again on appeal that the Department
erred in calculating his parole-eligibility date because it
failed to follow Arkansas Code Annotated section 16-90-804(c)
(Repl. 1997), which was in effect at the time he ...