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                SUPREME COURT OF ARKANSAS
                                      No.   CV-11-106

                                                 Opinion Delivered   November 7, 2013


KENNETH RAY PITTS                                PRO SE MOTION FOR LEAVE TO
  APPELLANT                                      FILE AMENDED COMPLAINT and
                                                 PRO SE APPEAL FROM THE
v.                                               LINCOLN COUNTY CIRCUIT
                                                 COURT, 40LCV-10-100, HON. JODI
RAY HOBBS, DIRECTOR,                             RAINES DENNIS, JUDGE
ARKANSAS DEPARTMENT OF
CORRECTION, and GLEENOVER
KNIGHT, RECORDS SUPERVISOR,
ARKANSAS DEPARTMENT OF                           APPEAL AFFIRMED; MOTION
CORRECTION                                       DISMISSED.
  APPELLEES


                                      PER CURIAM

       In 2006, appellant Kenneth Ray Pitts was found guilty by a jury in the Pulaski County

Circuit Court of second-degree sexual assault and sexual indecency with a child. He was

sentenced as a habitual offender to consecutive sentences of 720 months’ imprisonment for

the charge of second-degree sexual assault and 180 months’ imprisonment for the charge of

sexual indecency with a child. The Arkansas Court of Appeals affirmed. Pitts v. State,

CACR-07-110 (Ark. App. Oct. 31, 2007) (unpublished).

       In 2010, appellant filed in the Lincoln County Circuit Court a pro se petition for

declaratory judgment and for writ of mandamus, in which he sought to challenge the

calculation of his parole eligibility. The circuit court entered an order that denied and

dismissed the petition with prejudice, and appellant timely lodged an appeal from the order.
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       Now before us is appellant’s pleading entitled, “Pro Se Motion for Leave to File an

Amended Complaint Pur. R. 15(a) and 19(a) Fed. R. Civil P. and 18 U.S.C. § 3583(a)

Sentencing Guidelines.” In the instant pleading, appellant appears to argue that his sentence

should be dismissed as unconstitutional on the ground that the trial judge did not follow

federal sentencing guidelines. Appellant also cites Arkansas Code Annotated sections 16-112-

101, et seq. (Repl. 2006), and alleges that the Pulaski County Circuit Court lacked

jurisdiction and that he is being held pursuant to an invalid conviction. To the extent that

appellant seeks to file an amended complaint, the circuit court lost jurisdiction over the parties

and the subject matter in controversy once the record on appeal was lodged with this court.

See Watkins v. State, 2010 Ark. 156, 362 S.W.3d 910 (per curiam) (noting that once the

appeal transcript is lodged in the appellate court, the circuit court loses jurisdiction to enter

any additional rulings). To the extent that appellant seeks a writ of habeas corpus, any

petition for writ of habeas corpus is properly addressed to the circuit court in the county in

which the petitioner is held in custody. Wilencewicz v. Hobbs, 2012 Ark. 230 (per curiam).

We therefore dismiss the motion and affirm the circuit court’s order denying appellant’s

petition for declaratory relief and for writ of mandamus.

       A petition for declaratory judgment and for writ of mandamus is civil in nature.

Wiggins v. State, 299 Ark. 180, 771 S.W.2d 759 (1989). We have held that there are four

requisite conditions before declaratory relief may be granted: (1) there must exist a justiciable

controversy; (2) the controversy must be between persons whose interests are adverse; (3) the

party seeking relief must have a legal interest in the controversy; (4) the issue involved in the


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controversy must be ripe for judicial determination. Aguilar v. Lester, 2011 Ark. 329 (per

curiam) (citing Ark. Dep’t of Human Servs. v. Ross-Lawhon, 290 Ark. 578, 721 S.W.2d 658

(1986)).

       The purpose of a writ of mandamus is to enforce an established right or to enforce the

performance of a duty. Banks v. Hobbs, 2013 Ark. 377 (per curiam) (citing Aguilar, 2011 Ark.

329). A writ of mandamus is issued only to compel an official or a judge to take some action,

and when requesting a writ, a petitioner must show a clear and certain right to the relief

sought and the absence of any other remedy. Id. But, a writ of mandamus will not lie to

control or review matters of discretion. Id.

       Appended to appellant’s petition for declaratory judgment and for writ of mandamus

were four time-computation cards. Two time-computation cards, dated November 27, 2007,

and February 8, 2008, indicated that appellant’s parole-eligibility status for the sexual-

indecency sentence was one-third, and his parole-eligibility status for the second-degree

sexual-assault sentence was noted with an asterisk. Two additional time-computation cards,

dated June 12, 2009, and March 19, 2010, indicated that appellant’s parole-eligibility status

for the sexual-indecency sentence was one-third, and his parole-eligibility status for the

second-degree sexual-assault sentence was noted with the number, 1805, and an asterisk. The

“1805*” notation referred to Act 1805 of 2001, codified at Arkansas Code Annotated section

16-93-609 (Supp. 2003). That statute provides that any person who commits a felony offense

after August 13, 2001, and who has previously been found guilty of, or pled guilty to, a felony

offense, shall not be eligible for parole. Ark. Code Ann. § 16-93-609(b).


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       On appeal, appellant argues that the Arkansas Department of Correction (ADC)

incorrectly applied section 16-93-609 to the calculation of his parole-eligibility date for the

720-month sentence, which was imposed for the charge of second-degree sexual assault.

Specifically, appellant asserts that section 16-93-609 was not applicable to either of his

sentences because it was not so indicated on his judgment-and-commitment order. While

appellant argues that a parole-eligibility statute cannot be applied to a sentence absent some

reference to that particular statute on the judgment-and-commitment order, such is not the

case, and appellant has failed to cite to any convincing authority otherwise.

       The law is well settled that parole eligibility is determined by the law in effect at the

time the crime is committed. Aguilar, 2011 Ark. 329. The determination of parole eligibility

is solely within the province of the ADC. Anderson v. Hobbs, 2013 Ark. 354 (per curiam).

Section 16-93-609(b), in effect at the time appellant committed the crimes of second-degree

sexual assault and sexual indecency with a child, provided as follows:

       (1) Any person who commits . . . any felony sex offense subsequent to August 13,
       2001, and who has previously been found guilty of or pleaded guilty or nolo
       contendere to . . . any felony sex offense shall not be eligible for release on parole by
       the board.

       (2) For purposes of this subsection, “a violent felony offense or any felony sex offense”
       means those offenses listed in § 5-4-501(d)(2).

The ADC correctly applied section 16-93-609(b) to appellant’s sentence for second-degree

sexual assault, which he committed subsequent to August 13, 2001.1 Second-degree sexual

assault is listed as one of the felony sex offenses referred to in section 16-93-203(b)(2). See


       1
        The record reflects that commission of the crime occurred on or about May 15, 2004.

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Ark. Code Ann. § 5-4-501(d)(2)(A)(xi) (Supp. 2003). At trial, certified copies of two

judgment-and-commitment orders were admitted to prove appellant’s status as a habitual

offender. Those documents indicated that appellant was convicted of first-degree sexual abuse

in 1990 and pled guilty to first-degree sexual abuse in 1984. At the time that appellant was

convicted and sentenced for the crimes of sexual assault in the second degree and sexual

indecency with a child, first-degree sexual abuse was listed in section 5-4-501(d)(2) as one of

the referenced felony sex offenses. See Ark. Code Ann. § 5-4-504(d)(2)(A)(viii) (Supp.

2003).2

       Appellant also raises arguments that are not preserved for our review. Specifically,

appellant raises allegations of trial error that are precluded by the law-of-the-case doctrine,3

as well as a claim of an ex-post-facto violation for which appellant failed to obtain a ruling.

Nevertheless, appellant’s claim that application of Act 1805 to his sentence amounts to an ex-

post-facto application of the law 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; (2) it must disadvantage the offender affected

by it. Brown v. Lockhart, 288 Ark. 483, 707 S.W.2d 304 (1986). Neither element is present

       2
         The statute has since been amended by Act 827 of 2007, which repealed the subsection
listing “sexual abuse in the first degree.”
       3
         Appellant asserts on appeal that the trial court should not have allowed testimony
regarding his prior conviction of first-degree sexual abuse. This argument was raised by appellant
on his direct appeal, and the court of appeals found no error in the admission of the testimony
in question. Pitts, CACR-07-110, slip op. at 2. Thus, the argument is barred by the law-of-the-
case doctrine. See Strong v. Hobbs, 2013 Ark. 376 (per curiam) (explaining that, where the merits
of a claim were addressed and adjudicated in a prior appellate decision, that issue is settled and
may not be revisited in a subsequent appeal).

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in this case. Act 1805 was in effect at the time of appellant’s present offenses, and it is applied

by the ADC to the present offense of second-degree sexual assault, not to appellant’s prior

convictions. Therefore, there was no violation.

       As appellant failed to show that he was entitled to declaratory judgment or a writ of

mandamus, we affirm the circuit court’s order denying relief.

       Appeal affirmed; motion dismissed.

       Kenneth Ray Pitts, pro se appellant.

       Dustin McDaniel, Att’y Gen., by: Christian Harris, Ass’t Att’y Gen., for appellee.




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