CARL DAVIS, JR. APPELLANT
WENDY KELLEY, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION APPELLEE
APPEAL FROM THE LINCOLN COUNTY CIRCUIT COURT [NO.
40CV-16-138] HONORABLE JODI RAINES DENNIS, JUDGE
Davis, Jr., pro se appellant.
Rutledge, Att'y Gen., by: Pamela Rumpz, Ass't
Att'y Gen., for appellee.
R. BAKER, Associate Justice.
Carl Davis, Jr., appeals the Lincoln County Circuit
Court's dismissal of his pro se petition for declaratory
judgment and writ of mandamus. In his petition, Davis, an
inmate incarcerated in the Arkansas Department of Correction
(ADC), challenged the ADC's calculation of his parole
eligibility. Davis alleged that the ADC incorrectly included
certain felony convictions in its calculation of his
multiple-offender classification. Based on the ADC's
incorrect calculation, the ADC had determined that Davis was
in his "fourth term" and classified him a fourth
offender for purposes of parole eligibility. Additionally,
Davis argued that including his 1981 convictions for burglary
and robbery resulted in an ex post facto violation. The
circuit court found that the ADC had not erred in its
calculation as to either issue, and therefore, Davis had
failed to state a claim on which relief could be granted. We
agree that there has been no ex post facto violation, and we
affirm on that issue. However, we do not agree that the
perjury conviction should have been used in calculating
Davis's status as a habitual offender, and we reverse and
remand on that point.
1981, Davis entered negotiated guilty pleas in two cases in
the Jefferson County Circuit Court, 35CR-81-321 and
35CR-81-330, on charges of burglary and robbery, which were
both Class B felonies. In materials provided to Davis, the
ADC counted this as Davis's first term of incarceration.
1983, when Davis had been released on parole, he was
convicted and sentenced on two counts of burglary, which were
Class B felonies, and two counts of theft of property, which
were Class C felonies, in 35CR-83-137. The ADC counted this
as Davis's second term of incarceration.
1985, while still incarcerated for the 1983 convictions,
Davis entered a guilty plea to perjury, a Class C felony, in
35CR-85-270. Davis's sentence in that case was to be
served concurrently to the one he was already serving, and
because the term of the sentence for perjury was less than
what remained on Davis's previous convictions, the
conviction did not extend the aggregate term of his
incarceration. The ADC counted this as Davis's third term
1991, after being released on parole for his previous
charges, Davis was found guilty and sentenced on a charge of
aggravated robbery in 35CR-91-457. Davis is currently
incarcerated serving a seventy-year sentence on the 1991
classified Davis as a fourth offender under Arkansas Code
Annotated section 16-93-606(b)(4) (Repl. 2006) based on this
calculation, and using that habitual-offender status, it
determined that under Arkansas Code Annotated section
16-93-607(c)(5), Davis was not eligible for parole. The
definition of a fourth offender in section 16-93-606(b)(4) is
an inmate convicted of four (4) or more felonies and
who has been incarcerated in some correctional institution in
the United States, whether local, state, or federal, three
(3) or more times for a crime which was a felony under the
laws of the jurisdiction in which the offender was
incarcerated, prior to being sentenced to a correctional
institution in this state for the offense or offenses for
which he or she is being classified.
(Emphasis added.) Section (a) of the same statute defines the
term "felony" as used in the section as "a
crime classified as Class Y felony, Class A felony, or Class
B felony by the laws of this state."
circuit court considered exhibits outside the pleadings in
making its ruling, and we treat the dismissal as one on
summary judgment. Rogers v. Knight, 2017 Ark. 267,
527 S.W.3d 719. Summary judgment is appropriate when there
are no genuine issues of material fact, and the moving party
is entitled to judgment as a matter of law. Hotfoot
Logistics, LLC v. Shipping Point Mktg., Inc., 2013 Ark.
130, 426 S.W.3d 448.
sought the appropriate remedy; a challenge to the ADC's
interpretation of a statute and its application to calculate
parole eligibility may support declaratory judgment. See,
e.g., Hobbs v. Baird, 2011 Ark. 261 (affirming
grant of declaratory judgment where ADC had erroneously
interpreted statute). The denial of a declaratory-judgment
action is upheld unless the denial is clearly ...