Anderson v. Hobbs

2013 Ark. 354

Opinion

Cite as 2013 Ark. 354

SUPREME COURT OF ARKANSAS No. CV-11-1112

Opinion Delivered September 26, 2013

MARVIN ANDERSON PRO SE APPEAL FROM THE APPELLANT JEFFERSON COUNTY CIRCUIT COURT, 35CV-11-430, HON. JODI V. RAINES DENNIS, JUDGE

RAY HOBBS, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION; LEROY BROWNLEE, CHAIRMAN OF THE ARKANSAS PAROLE BOARD APPELLEES AFFIRMED.

PER CURIAM

On March 24, 1998, appellant Marvin Anderson entered a plea of guilty in the Union

County Circuit Court to one count of rape, and a sentence of thirty years’ imprisonment was

imposed. The date of the offense was February 13, 1997. The judgment-and-commitment

order reflected that, as a result of the rape conviction, the trial court revoked appellant’s

probationary sentences for three counts of first-degree carnal abuse. A sentence of ten years’

imprisonment was imposed for each count of first-degree carnal abuse with the terms to be

served concurrently with one another but consecutive to the thirty-year rape sentence.

The Arkansas Department of Correction (ADC) calculated that after serving one-third

of his sentence for his convictions for first-degree carnal abuse, appellant was eligible for

transfer on those convictions on September 6, 2000, and that appellant’s sentence for his rape

conviction began on that date. Appellant does not challenge this calculation. Applying Arkansas

Code Annotated section 16-93-611 (Supp. 1995), the ADC further calculated that after serving Cite as 2013 Ark. 354

seventy percent of his thirty-year sentence, or 21 years, for the rape conviction, appellant would

be eligible for transfer on September 5, 2021.

On July 8, 2011, appellant filed a pro se motion for declaratory judgment against the

Director of the Arkansas Department of Correction and the Chairman of the Arkansas Parole

Board in the Jefferson County Circuit Court. In the motion, appellant contended that the ADC

erred in its calculation of his transfer-eligibility date because he should not be required by section

16-93-611 to serve seventy percent of his sentence for committing the crime of rape before

being eligible for transfer to community-punishment placement. The circuit court denied the

motion, and appellant brings this appeal. We find no error and affirm.

On appeal, appellant contends that the ADC applied the wrong statute in computing

when he is eligible for transfer to community-punishment placement. However, he fails to show

how the ADC has miscalculated his transfer-eligibility date in a manner inconsistent with the law

in effect at the time that he committed the crime of rape. The determination of parole eligibility

is solely within the province of the ADC. Aguilar v. Lester, 2011 Ark. 329 (per curiam). Parole

eligibility is determined by the law in effect at the time the crime is committed. Id. Section 16-

93-611, in effect at the time that appellant committed the crime of rape, states as follows:

Notwithstanding any law allowing the award of meritorious good time or any other law to the contrary, any person who is found guilty of or who pleads guilty or nolo contendere to . . . rape, § 5-14-103, . . . shall not be eligible for parole until the person serves seventy percent (70%) of the term of imprisonment to which the person is sentenced.

Appellant raises myriad arguments in an attempt to suggest that section 16-93-611 is not

the controlling authority for calculating his transfer-eligibility date and that it is invalid and

2 Cite as 2013 Ark. 354

unconstitutional. However, appellant fails to set forth any convincing argument or authority in

support of his contentions Where the party fails to cite to authority or fails to provide

convincing argument, we will not consider the merits of the argument. Ventry v. State, 2009 Ark.

300, 318 S.W.3d 576.1

Appellant seems to contend that pursuant to Arkansas Code Annotated section 16-93-

1301 (Supp. 1995), the ADC should calculate his eligibility for transfer to the Department of

Community Punishment without considering whether he has served seventy percent of his term

of imprisonment. Without determining whether appellant is, in fact, even eligible for such

transfer, we hold that section 16-93-611 does not allow for transfer to community punishment

placement until a person, who has been found guilty of or who pleads guilty or nolo contendere

to designated crimes, has served seventy percent of his sentence. Appellant urges this court to

interpret section 16-93-611, as in effect at the time that he committed the offense of rape, as not

requiring that he serve seventy percent of his sentence before being eligible for release to

community punishment placement. He bases his argument on Act 1197 of 1997, enacted after

the date that he committed the rape offense, in which the General Assembly amended section

16-93-611 to specify that a person is not eligible for “parole or community punishment transfer” until

he has served seventy percent of his sentence. However, appellant has offered nothing to show

that the General Assembly intended the seventy-percent requirement to not apply to community

punishment transfer in the version of 16-93-611 in effect at the time that he committed rape.

1 Appellant also mentions a variety of rules and statutes; however, he does not provide any coherent explanation or argument to support these citations such that they do not raise any argument for this court to consider on appeal.

3 Cite as 2013 Ark. 354

Appellant also seems to contend that the ADC applied Arkansas Code Annotated section

16-93-611, as amended by Act 1197 of 1997, in calculating his transfer-eligibility date, thereby

violating the ex post facto clause of the Arkansas and United States Constitutions. This

argument is without merit. There are two critical elements that must be present for a criminal

law to be ex post facto: (1) it must be retrospective, that is, it must apply to events occurring

before its enactment and (2) it must disadvantage the offender affected by it. Aguilar, 2011 Ark.

329. The ADC applied Act 1326 of 1995, as enacted by Arkansas Code Annotated section 16-

93-611, in calculating the date that appellant will be eligible for parole. Act 1326 was in effect

at the time that appellant committed rape; thus, there is no violation of the ex post facto clause.

Affirmed.

Marvin Anderson, pro se appellant.

No response.