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Lenard v. Kelley

Supreme Court of Arkansas

May 18, 2017

RICKY LYNN LENARD, SR., APPELLANT
v.
WENDY KELLEY, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION; JOHN FELTS, DIRECTOR, ARKANSAS BOARD OF PAROLE; SHERI FLYNN, ADMINISTRATOR, SEX OFFENDER COMMUNITY NOTIFICATION, APPELLEES

         PRO SE APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT [No. 35CV-15-534 ] HONORABLE JODI RAINES DENNIS, JUDGE

          Ricky Lynn Lenard, pro se appellant.

          Leslie Rutledge, Att'y Gen., by: Christian Harris, Ass't Att'y Gen., for appellee.

          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, 2015[1] 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 Lenard alleges on appeal, as he did below, that the Board had erroneously rescinded his transfer eligibility based on a disciplinary action taken by the Arkansas Department of Correction (ADC).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 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. 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 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 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 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 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 ...


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