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                    SUPREME COURT OF ARKANSAS.
                                         No.   CR-17-229

                                                  Opinion Delivered August   3, 2017
CEDRIC L. BROWN
                               APPELLANT
                                                  PRO SE MOTION FOR EXTENSION
                                                  OF BRIEF TIME
V.
                                                  [POINSETT COUNTY CIRCUIT
                                                  COURT, NO. 56CR-13-381]
STATE OF ARKANSAS
                                   APPELLEE
                                                  APPEAL DISMISSED; MOTION MOOT.


                             KAREN R. BAKER, Associate Justice

        Appellant 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.

        Now 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
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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.

       An 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.

       Brown 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). 1 Brown alleged entitlement to declaratory relief on the bases that the ADC had



       1
        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

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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.

       Our 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) 2 (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,




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 Hobbs v. Baird, 2011 Ark.
261, at 2 (affirming circuit court’s granting declaratory relief where the ADC had
misinterpreted the applicable statute with respect to parole eligibility).
       2
       This section of the declaratory-judgment act was originally codified as § 16-111-
106, but was renumbered by the Arkansas Code Revision Commission in 2016.
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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).

       Because 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 declaratory-judgment statute.

       Appeal dismissed; motion moot.

       Cedric L. Brown, pro se appellant.

       One brief only.




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