CEDRIC L. BROWN APPELLANT
STATE OF ARKANSAS APPELLEE
MOTION FOR EXTENSION OF BRIEF TIME [POINSETT COUNTY CIRCUIT
COURT, NO. 56CR-13-381]
L. Brown, pro se appellant.
R. BAKER, Associate Justice
Cedric L. Brown lodged an appeal from a decision of the trial
court that denied his pro se petition for declaratory relief
asking the trial court to enforce the terms of an alleged
plea agreement concerning Brown's parole eligibility.
Brown contended that his counsel, relying on assurances from
the prosecutor, had promised that if he pleaded guilty, Brown
would not be required to serve more than four years'
imprisonment in the Arkansas Department of Correction (ADC)
before becoming eligible for parole. Brown contended in his
petition for declaratory relief that the ADC had contravened
this plea agreement when it determined that he would be
required to serve 100 percent of the sentence. The trial
court entered an order that denied Brown's request for
relief, concluding that it did not have the authority to
abrogate the ADC's determination of parole eligibility.
pending before this court is Brown's pro se motion for an
extension of time to file his brief in this appeal. For the
reasons set forth below, a de novo review of the record
demonstrates that Brown did not join the director of the ADC
as a party to his declaratory-judgment action. Therefore,
Brown failed to establish the existence of a justiciable
controversy over which the circuit court had jurisdiction. As
it can be determined from the record that Brown could not
prevail, the appeal is dismissed, which renders Brown's
motion for an extension moot.
appeal from an order that denied a petition for
postconviction relief, including civil postconviction
remedies, will not be permitted to go forward where it is
clear that the appellant could not prevail. Justus v.
State, 2012 Ark. 91, at 2. This court treats
declaratory-judgment proceedings as applications for
postconviction relief in those instances in which a prisoner
seeks relief from the conditions of his incarceration.
Neely v. McCastlain, 2009 Ark. 189, at 6, 306 S.W.3d
424, 427. Declaratory relief may be granted when it is
established that a justiciable controversy exists. Jegley
v. Picado, 349 Ark. 600, 613, 80 S.W.3d 332, 337 (2002).
The question as to whether there was an absence of a
justiciable issue shall be reviewed de novo on the record of
the trial court. Id. at 611, 80 S.W.3d at 336.
pleaded guilty to one count of attempted first-degree murder
and was sentenced to 192 months' imprisonment in the ADC
with 48 months of supervised release. In his petition for
declaratory relief, Brown contended that the ADC refused to
grant parole eligibility to him pursuant to Arkansas Code
Annotated section 16-93-609(b)(1) (Repl. 2016). Brown alleged entitlement to declaratory
relief on the bases that the ADC had violated the terms of
the alleged plea agreement, his right to due process, and his
right to enforcement of a contract, when it determined that
he must serve his entire sentence. Brown cited Puckett v.
United States, 556 U.S. 129 (2009); and Santobello
v. New York, 404 U.S. 257 (1971), for the proposition
that the United States Supreme Court recognizes that plea
agreements are enforceable contracts. The trial court held a
hearing on the petition and considered arguments from Brown
and the prosecutor. The plea agreement and the
plea-and-sentence recommendations were made part of the
record and contained terms regarding the agreed-upon
sentence, but did not reference parole eligibility.
declaratory-judgment act was not intended to allow any
question to be presented by any person. Andres v. First
Ark. Dev. Fin. Corp., 230 Ark. 594, 606, 324 S.W.2d 97,
104 (1959). The declaratory-judgment statute is applicable
only where there is a present actual controversy and all
interested persons are made parties. Ark. Code Ann. §
16-111-111(Repl. 2016) (stating in
relevant part that all persons shall be made parties who
claim any interest that would be affected by the
declaration); see also Files v. Hill, 268 Ark. 106,
114, 594 S.W.2d 836, 841 (1980) (failure to include a party
that has an interest in the controversy is fatal to a
declaratory judgment action); McFarlin v. Kelly, 246
Ark. 1237, 1240-41, 442 S.W.2d 183, 185 (1969) (to meet
jurisdictional requirement for a declaratory action all those
who have an interest must be made parties to the action).
Brown did not join the director of the ADC as a party to this
action, there was no justiciable controversy as to the rights
and obligations of the ADC under an action that sought to
enforce a verbal agreement affecting its right to determine
Brown's parole eligibility. Ark. Code Ann. §
16-111-111. For the same reasons, Brown's remaining
allegation that the ADC violated his right to due process was
likewise not justiciable under Arkansas's
dismissed; motion moot.
This code section states in pertinent
part that any person who commits a violent felony offense
after August 13, 2001, and who has previously been found
guilty of or pleaded guilty to any violent felony offense
shall not be eligible for release on parole by the board. The
record demonstrates that Brown is incarcerated in the ADC
pursuant to a guilty plea to one count of attempted murder.
The sentencing order reflects that the offense of attempted
murder was committed on August 25, 2013. During the hearing,
Brown informed the trial court that he had been previously
convicted of first-degree battery. There is no allegation or
evidence in this record that the ADC's calculation of
Brown's parole eligibility was unauthorized under the
controlling statutes. See ...