                                    Cite as 2017 Ark. 186


                   SUPREME COURT OF ARKANSAS.
                                         No.   CV-16-747


                                                  Opinion Delivered May   18, 2017
RICKY LYNN LENARD, SR.
                   APPELLANT
                                                  PRO SE APPEAL FROM THE JEFFERSON
V.                                                COUNTY CIRCUIT COURT
                                                  [No. 35CV-15-534 ]
WENDY KELLEY, DIRECTOR,
ARKANSAS DEPARTMENT OF                            HONORABLE JODI RAINES
CORRECTION; JOHN FELTS,                           DENNIS, JUDGE
DIRECTOR, ARKANSAS BOARD OF
PAROLE; SHERI FLYNN,                              AFFIRMED IN PART; REVERSED AND
ADMINISTRATOR, SEX OFFENDER                       REMANDED IN PART.
COMMUNITY NOTIFICATION

                                 APPELLEES

                                        PER CURIAM


        Pending before this court is an appeal filed by Ricky Lynn Lenard, Sr., from the

 denial of his petition for declaratory relief and a writ of mandamus regarding decisions made

 by the Arkansas Board of Parole (Board) on April 29, 2014, to rescind a finding that he was

 eligible for transfer, and a later decision made by the Board on March 30, 20151 to deny

 Lenard’s transfer eligibility for an additional period of two years. Lenard alleges on appeal,

 as he did below, that the Board had erroneously rescinded his transfer eligibility based on a

 disciplinary action taken by the Arkansas Department of Correction (ADC). Lenard further




        1The Board held two separate hearings with respect to Lenard’s eligibility for transfer.
 The first was on February 26, 2015, and the Board’s decision was rendered on March 4,
 2015. A second hearing, this one considering a request for reconsideration, was held on
 March 22, 2015, and the Board came to the same conclusion and entered its final decision
 on March 30, 2015.
                                    Cite as 2017 Ark. 186

contends that the Board subsequently denied his transfer eligibility by erroneously taking

into consideration a Sex Offender Community Notification Assessment (SOCNA) that was

implemented in accordance with the Sex Offender Registration Act (SORA), codified at

Arkansas Code Annotated sections 12-12-901 to –927 (Supp. 2009). For the reasons stated

below, we affirm in part and reverse and remand in part.

       Before addressing the merits of Lenard’s declaratory action, it is necessary to set forth

the facts surrounding Lenard’s underlying convictions that led to his current incarceration

in the ADC. In November 2010, Lenard pleaded nolo contendere to fourth-degree sexual

assault, was sentenced to time served in the Jefferson County jail, and ordered to register as

a sex offender. On March 5, 2012, Lenard was notified by an official with the Sex Offender

Screening and Risk Assessment Committee (SOSRA) 2 that he had been assigned a level-

three risk assessment for purposes of community-notification requirements, due to Lenard’s

failure to appear for his scheduled assessments. Then, in July 2012, Lenard entered a

negotiated plea to charges of felony theft of property and criminal mischief and was

sentenced to 60 months’ probation.

       Subsequently, in May 2013, Lenard entered a negotiated plea to violation of his

probation terms with respect to the above-cited 2012 theft and criminal-mischief

convictions and for failing to register as a sex offender as required by his 2010 conviction.

Lenard was sentenced to an aggregate term of 60 months’ imprisonment for all three crimes.



       2SOSRA is the state agency responsible for assessing sex offenders and SOCNA is
the agency responsible for implementing community-notification requirements consistent
with the assessment made by SOSRA.

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The initial sentencing order classified Lenard as having committed an aggravated sex offense,

and Lenard was designated as a sexually violent predator. Lenard filed a motion to correct

the order. Consequently, the trial court entered an amended sentencing order on July 15,

2013, removing the designation of Lenard as a sexually violent predator and further

instructing that Lenard was not required to register as a sex offender and was not required

to undergo an evaluation at a facility designated by the ADC. See Lenard v. State, 2014 Ark.

478, at 1–2 (per curiam) (noting that the sentencing court had removed the erroneous sex-

offender indicators by an amended order).

       On September 26, 2013, following a hearing, the Board determined that Lenard was

eligible for release to supervision by the Arkansas Department of Community Correction

on the condition that he complete a substance abuse education program prior to his release,

which Lenard completed in October 2013. On November 26, 2013, Lenard was notified

by an administrator with SOCNA that he had been assessed as a level-three offender by

default for his failure to cooperate with SOSRA.

       On January 7, 2014, a hearing was conducted wherein Lenard was found guilty of a

major disciplinary infraction,3 and his punishment included 30 days’ punitive isolation, a

reduction in class status, and the forfeiture of 273 days’ good-time credit. Because of this

infraction, the Board rescinded Lenard’s transfer eligibility in April 2014. In the following

year, the Board held two separate hearings and issued a final decision in March 2015 that



       It was found that Lenard had agreed to allow another inmate, Gary Stotts, to deposit
       3

money into Lenard’s account for the purpose of purchasing items on behalf of Stotts, who
had been placed on commissary restrictions.

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denied Lenard’s transfer eligibility for two years. The Board also concluded that Lenard was

required to participate in the Reduction of Sexual Victimization Program (RSVP) before

becoming eligible for transfer. It is from the above-cited actions of the ADC, the Board,

and SOCNA that gave rise to this action that is currently on appeal before this court.

       On October 2, 2015, and on January 4, 2016, Lenard filed two separate petitions for

declaratory relief. Attached to the petitions were documents related to the Board’s decisions

rescinding his transfer eligibility and subsequently denying his transfer eligibility for an

additional two years. A review of the petitions and attached documents reflect that Lenard

had challenged the requirement that he register as a sex offender with the ADC as a result

of his conviction for failing to register as a sex offender; that the Board had erroneously

rescinded his transfer eligibility in 2014 because he was innocent of the disciplinary

infraction; that the Board had illegally denied his transfer eligibility in 2015 based on his

classification as a level-three offender implemented by SOCNA, despite the fact that he had

been convicted of a misdemeanor sex offense.

       The circuit court denied his petitions, finding that Lenard’s request for relief was

barred by the doctrine of sovereign immunity and, alternatively, finding that Lenard’s

allegations lacked merit. On appeal, Lenard makes the same arguments raised below and set

forth above regarding the denial of his eligibility for transfer in 2014 and again in 2015.

       As an initial matter, appellees challenged venue because Lenard’s petitions amounted

to an action under the Administrative Procedure Act and should have been brought in either

Pulaski County, Arkansas, or in Lee County where Lenard is currently incarcerated. A

petition for declaratory relief is civil in nature and is properly filed in the county in which

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the defendants, or keeper of the records of the ADC, are located. Wiggins v. State, 299 Ark.

180, 181–82, 771 S.W.2d 759, 760 (1989). The director of the ADC is located in Pine

Bluff, Jefferson County, Arkansas. SOCNA is a division of the ADC, and the Board resides

in Pulaski County but conducts its hearings at units controlled and operated by the ADC

and in conjunction with the ADC. Moreover, when venue is appropriate as to one

defendant, then it is only proper as to co-defendants who are jointly liable with the resident

defendant. Boatmen’s Nat’l Bank of Ark. v. Cole, 329 Ark. 209, 213, 947 S.W.2d 362, 364

(1997). Therefore, this petition for declaratory relief was filed in the proper county even

though Lenard is currently incarcerated in Lee County and the Board resides in Pulaski

County. 4

       The clearly-erroneous standard set forth in Rule 52(a) is the standard of review for

bench trials but not necessarily for all declaratory-judgment actions. Poff v. Peedin, 2010

Ark. 136, at 5–6, 366 S.W.3d 347, 350. We have held that a pro se petition for declaratory

relief challenging the conditions of incarceration is properly treated as a petition for

postconviction relief where the clearly erroneous standard is applied. Crawford v. Cashion,

2010 Ark. 124, at 1, 361 S.W.3d 268, 270 (per curiam).5 However, appellate courts should



       4
        In any event, under Rule 12(b) of the Arkansas Rules of Civil Procedure, a party
must assert the defense of improper venue in its answer or in a motion filed prior to or
simultaneously with its answer, and if he fails to do this, he waives this defense. Ark. R.
Civ. P. 12(h)(1); Gailey v. Allstate Ins. Co., 362 Ark. 568, 573, 210 S.W.3d 40, 43 (2005).
Here, respondents objected to venue but not on the basis of the residency of a co-
respondent. Therefore, any objection to venue pertaining to the Arkansas Parole Board was
waived.
       5
        In Crawford, the appellant challenged the constitutionality of the ADC’s actions,
alleging that the ADC had violated due process, and sovereign immunity was not an issue.
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not apply the clearly-erroneous standard if review of the underlying basis for the action is

governed by another standard. Poff, 2010 Ark. 136, at 5–6, 366 S.W.3d at 350.

       We have also held that in an appeal from a decision granting summary judgment,

where the circuit court makes its decision based on whether the pleadings state sufficient

facts for an exception to sovereign immunity, we apply the abuse-of-discretion standard of

review. Smith v. Daniel, 2014 Ark. 519, at 5, 452 S.W.3d 575, 578. In those instances, we

treat the facts alleged in the complaint as true and view them in the light most favorable to

the party who filed the complaint. Id. Here, the circuit court dismissed Lenard’s petitions

as barred by sovereign immunity based on his pleadings and attached documents and

concluded that Lenard had not stated sufficient facts giving rise to an exception to the

application of the doctrine of sovereign immunity. Therefore, an abuse-of-discretion

standard is properly applied in this case. With respect to Lenard’s petition for mandamus

relief, if the right to declaratory relief is not established there is no basis for a writ of

mandamus. Cridge v. Hobbs, 2014 Ark. 153, at 2 (per curiam).

       If a claim is made against the State, it is barred by the doctrine of sovereign immunity,

unless an exception to sovereign immunity applies. Mitchem v. Hobbs, 2014 Ark. 233, at 3–

5 (per curiam) (citing Ark. Dep’t of Cmty. Corr. v. City of Pine Bluff, 2013 Ark. 36, at 4, 425

S.W.3d 731, 734). This court has recognized three ways in which a claim of sovereign

immunity may be surmounted: when the State is the moving party seeking specific relief;

when an act of the legislature has created a specific waiver of sovereign immunity; and when

the state agency is acting illegally or if a state-agency officer refuses to do a purely ministerial

action required by statute. Mitchem, 2014 Ark. 233, at 3–5. This court has long recognized

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that a state agency may be enjoined if it can be shown that the agency’s action is ultra vires

or outside the authority of the agency. Fitzgiven v. Dorey, 2013 Ark. 346, at 13, 429 S.W.3d

234, 241–42. We have held that for an act to be ultra vires, it must be beyond the agency’s

or the officer’s legal power or authority. Id.; see also Hobbs v. Baird, 2011 Ark. 261, at 3–5

(affirming circuit court’s order granting declaratory relief based on the ADC’s

misinterpretation of parole statute).

       Here, Lenard’s allegation that he was erroneously convicted of a disciplinary

infraction in 2014 does not establish that the ADC acted without statutory authority. The

ADC has the authority to prescribe rules and regulations to maintain order and discipline

and to conduct proceedings for dealing with violations. Ark. Code Ann. § 12-29-103

(Supp. 2009). Moreover, the Board retains the power to determine which persons shall be

placed on parole and the conditions upon which the ADC may transfer the inmate to the

Department of Community Correction. Ark. Code Ann. § 16-93-206(a)(1) and (b)(1)

(Supp. 2009). Finally, in determining eligibility, the Board is authorized to consider

whether an inmate has received a major disciplinary report against him or her that resulted

in a loss of good-time credit. Ark. Code Ann. § 16-93-206(b)(1)(C)(i).

       The record before this court shows that Lenard was provided with a hearing on the

validity of the disciplinary charge, and the ADC was well within its statutory rights to impose

a reclassification and loss of good-time credit. The Board also provided Lenard with a

hearing and made the decision to rescind his transfer eligibility based on the ADC’s

conclusion that Lenard was guilty of an infraction. In view of the above, Lenard failed to

demonstrate that the ADC or the Board had acted ultra vires or outside their authority by

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disciplining Lenard or by rescinding his transfer eligibility. Fitzgiven, 2013 Ark. 346, at 13,

429 S.W.3d at 241–42. The circuit court did not abuse its discretion when it found that

this claim against the ADC and the Board was barred by the doctrine of sovereign immunity.

Mitchem, 2014 Ark. 233, at 3–5.

       However, the same cannot be said as to the Board’s denial of Lenard’s transfer

eligibility in March 2015. Lenard’s petition and his argument on appeal, together with the

documents included in the record, reveal that in March 2015, the Board denied Lenard’s

transfer eligibility for a period of two years based on the following stated grounds:

“seriousness level of the crime,” “age of the victim,” and “prior criminal history.”

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

time the crime is committed. Lewis v. Hobbs, 2014 Ark. 407, at 3, 443 S.W.3d 530, 532

(per curiam); see also Bosnick v. Lockhart, 283 Ark. 206, 207–08, 672 S.W.2d 52, 53 (1984).

Moreover, transfer eligibility applies to persons who “commit felonies . . . and who shall be

convicted and incarcerated for those felonies.” See Ark. Code Ann. § 16-93-1301(c) (Supp.

2009) (emphasis added). Therefore, the Board’s authority to grant or deny transfer must

correspond to felonies for which the inmate is incarcerated.

       As stated above, Lenard was convicted of, and was incarcerated for, theft of property,

failure to register as a sex offender, and criminal mischief. The amended sentencing order

reflects that the theft-of-property crime was classified as a Class B felony and was committed

in April 2011; the criminal-mischief offense was classified as a Class C felony and was also




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committed in April 2011, and the failure to register as a sex offender was classified as a Class

C felony and was committed in May 2011.6

       Arkansas Code Annotated section 16-93-1202(10)(A)(b) (Supp. 2009) designated

specific offenders who would be entitled to transfer to the Department of Community

Correction. This “target group” of offenders included felons convicted of theft, criminal

mischief, and all other Class C and Class D felonies that were neither violent nor sexual.

Ark. Code Ann. § 16-93-1202(10)(A)(i).7 Offenses defined as “sexual” were specifically

designated as those offenses listed in sections 5-14-101 et seq. Ark. Code Ann. § 16-93-

1202(10)(A)(iii). The sexual offenses designated in this code section do not include the

offense of failure to register as a sex offender, which is set forth in section 12-12-904 (Supp.

2009). Thus, Lenard falls within this “target group” that shall be eligible for transfer to the

Department of Community Correction after serving one-third or one-half of their

sentences. Ark. Code Ann. § 16-93-1301(c)(3)(A).

           The Board acted outside its authority by denying Lenard’s transfer eligibility in

March 2015. The basis for our conclusion will be set forth below and separately analyzed



       6
         The relevant transfer- and parole-eligibility statutes were amended by Act 570 on
March 22, 2011. Act 570 did not contain an emergency clause and therefore did not
become effective until ninety days after its enactment. Priest v. Polk, 322 Ark. 673, 681–82,
912 S.W.2d 902, 907 (1995). Consequently, the statutes that were in effect at the time
Lenard committed the above-cited crimes were controlled by the relevant code sections in
effect in 2009 that set forth the procedures and factors to be taken into consideration for
determining parole or transfer eligibility.
       7Class A and Class B felons who committed controlled substance offenses were also
included in this group, as well as unclassified felonies for which the prescribed limitations
on a sentence do not exceed the prescribed limitations for a Class C felony that are neither
sexual nor violent. Ark. Code Ann. § 16-93-1202(10)(A)(i).
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with respect to the Board’s decision to delay reconsideration for two years, together with

the three specific reasons set forth by the Board for denying Lenard’s transfer eligibility.

                                       Two-Year Delay

       The Board may deny transfer and delay reconsideration for a maximum of two years

if the offender has committed any homicide, first-degree sexual assault, second-degree sexual

assault; first-degree battery; first-degree domestic battery; and certain designated Y felonies.

Ark. Code Ann. § 16-93-206(c)(1) and (c)(2)(C).            Lenard was not convicted of or

incarcerated for any of the crimes enumerated in this section, but was convicted and

incarcerated for one Class B felony and two Class C felonies. Furthermore, felons, such as

Lenard, who have committed Class B and Class C felonies are deemed eligible for transfer

after having served one-third or one-half of their sentences with credit for meritorious good

time “depending on the seriousness determination made by the Arkansas Sentencing Commission.”

Ark. Code Ann. § 16-93-1301(c)(3)(A) (emphasis added).

                                 The Seriousness of the Crimes

       The 2013 amended sentencing order under which Lenard is incarcerated classified

the seriousness of his crimes in a manner that was consistent with the determination of the

Arkansas Sentencing Commission as follows: level five for the Class B felony-theft charge

and level three for failure to register and criminal mischief, which are both Class C felonies.

Ark. Code Ann. § 16-90-803 (Repl. 2006) (authorizing the sentencing commission to

determine the levels of the seriousness of offenses from levels I through X); 154–00-001

Ark. Code R. § 4 (Weil 2008). Under the guidelines set forth by the Arkansas Sentencing

Commission, the seriousness levels for theft, failure to register, and criminal mischief fall

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below the line, resulting in a sentence of one-third to one-sixth of the time imposed. See

Beavers v. State, 2016 Ark. 277, at 3, 495 S.W.3d 76, 79; 154–00–001 Ark. Code R. § 4

(Weil 2008).

       Applying the above-cited statutory parameters, Lenard has shown that the Board

miscalculated his transfer eligibility in a manner inconsistent with the law in effect at the

time he committed the crimes charged. Lewis, 2014 Ark. 407, at 4, 443 S.W.3d at 532.

Lenard was sentenced in 2013 to an aggregate term of 60 months’ imprisonment, and based

on the seriousness level of his crimes as reflected in the sentencing order and in accordance

with the Arkansas Sentencing Commission, he is eligible for parole after he had served 20

months, which is one-third of the aggregate 60-month sentence. Beavers, 2016 Ark. 277,

at 3, 495 S.W.3d at 79; 154-00-001 Ark. Code R. § 4. Therefore, the crimes for which

Lenard is incarcerated do not fall within a seriousness level that authorizes the Board’s

decision to deny Lenard’s transfer eligibility in 2015 for an additional two years.

                                            Age of the Victim

       Lenard argued below and argues on appeal that his transfer eligibility was denied

based on SOCNA’s implementation of the level-three risk assessment, designating Lenard

as a sexually violent felon, due to his failure to report for assessment as required by SORA.

Ark. Code Ann. § 12-12-917(b)(4)(A)(i). Lenard’s allegations are supported by the Board’s

determination that his transfer eligibility was denied because of the “age of the victim.”

This is so because the age of the victim is not a relevant factor with respect to the crimes of

theft, failure to register as a sex offender, and criminal mischief.




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       As stated above, in 2010, Lenard was convicted of fourth-degree sexual assault

pursuant to section 5-14-127(a)(2) (Repl. 2006), which is a Class A misdemeanor. The

offense falls within the purview of SORA. Ark. Code Ann. § 12-12-903(12)(A)(f). Lenard

was not incarcerated in the ADC for that offense and was not subject to incarceration in the

ADC because it was not a felony offense. Ark. Code Ann. § 5-4-402(b) (Repl. 2006) (a

defendant convicted of a felony shall be committed to the Arkansas Department of

Correction); see also Jones v. State, 270 Ark. 328, 330, 605 S.W.2d 7, 9 (1980) (We take

judicial notice of the fact that a sentence to the Department of Correction is only ordered

in felony cases.).

       After his conviction, Lenard did not comply with the requirements of SORA, in that

he repeatedly failed to appear for scheduled assessments on March 15, 2011, November 23,

2011, and February 12, 2012. Consequently, Lenard was assessed as a level-three offender

for purposes of community notification. Clearly, SOCNA had the authority to implement

the designation of Lenard as a level-three offender under the provisions of SORA. Ark.

Code Ann. § 12-12-917(b)(4)(A)(i). However, the implementation of a level-three risk

assessment by SOCNA is not a means through which a classification of a felony can be

upgraded or a misdemeanor offense can be transformed into a felony offense.

       We have held that the SORA is not criminal in nature, including its assessment

process. Parkman v. Sex Offender Screening & Risk Assessment Comm., 2009 Ark. 205, at 11,

307 S.W.3d 6, 13. The sex-offender regulations set the parameters as to the extent of

information to be made public, depending on the offender’s level of dangerousness, pattern

of offending behavior, and the extent to which the information will enhance public safety.

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Burchette v. Sex Offender Screening & Risk Assessment Comm., 374 Ark 467, 469, 288 S.W.3d

614, 616 (2008) (citing Ark. Code Ann. § 12-12-913(c)(2)(B)). Thus, classification as a

level three offender is part of a civil regulatory system, that involves a determination of the

scope of community notification, as well as the placement of work and residency limitations

for purposes of enhancing public safety. Parkman, 2009 Ark. 205, at 13–16, 307 S.W.3d at

15. The sex-offense registration scheme under SORA imposes civil but not criminal

penalties. Parkman, 2009 Ark. 205, at 11, 307 S.W.3d at 13.

       Lenard was convicted and is currently incarcerated for failure to register as a sex

offender under section 12-12-904, which, as explained above, is not designated as a sexual

offense under section 16-93-1202(10)(A)(iii). Moreover, the amended sentencing order

under which Lenard is currently incarcerated specifically exempts Lenard from additional

registration requirements pursuant to SORA and indicates that Lenard had not been

adjudicated guilty of a sex offense, had not committed an aggravated sex offense, and had

not been alleged to be a sexually violent predator subject to evaluation by the ADC.

       While Lenard clearly remains subject to civil regulations resulting from his failure to

cooperate in accordance with SORA, and he was subject to a criminal sanction in the form

of a conviction of a Class C felony due to this failure, he is not subject to a further criminal

penalty under the above-cited statutes governing transfer eligibility. In sum, the Board

miscalculated Lenard’s parole eligibility by applying a civil designation of Lenard as a level-

three sex offender to increase and reclassify the level of the offense for which he is currently

incarcerated and to erroneously take into consideration the age of the victim for a

misdemeanor offense for which he is not incarcerated. The Board exceeded its statutory

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authority by considering a factor that had no bearing on Lenard’s eligibility for transfer in

relation to a Class C felony offense of failure to register as a sex offender.

                                     Prior Criminal History

       The Board also based its decision upon Lenard’s prior criminal history. Again, this

finding supports Lenard’s allegations that the Board primarily considered his 2010

misdemeanor sex offense, which had been assessed as a level-three offense by SOCNA. The

Board is authorized to consider an inmate’s prior criminal history to lengthen the period of

confinement as applied to parole eligibility. Michalek v. Lockhart, 292 Ark. 301, 304, 730

S.W.2d 210, 211 (1987). However, parole eligibility is determined by an inmate’s criminal

history based on the inmate’s commission of previous crimes classified as Class Y, Class A,

or Class B felonies. Ark. Code Ann. §§ 16-93-606 to -607 (Repl. 2006). Lenard’s prior

criminal history falls outside the scope of this statutory authorization.         The record

demonstrates that before his 2013 convictions for theft, failure to register, and criminal

mischief, Lenard had been convicted in 2008 of two prior felonies that included theft of

property and fraudulent use of a credit card, which, according to the judgment and

commitment order, were Class C felonies. Ark. Code Ann. § 5-36-103(a)(2) (Repl. 2006);

Ark. Code Ann. § 5-37-207(b)(1) (Repl. 2006). Moreover, Lenard’s 2010 conviction for

a sex offense was a Class A misdemeanor. Again, by taking into consideration Lenard’s prior

criminal history in denying his eligibility for transfer, the Board appeared to consider Lenard

as having been convicted of a prior felony classified as A, B, and Y felonies, apparently based

on the civil regulatory assessment as implemented by SOCNA designating Lenard as a level-

three sex offender. Again, there is no statutory basis for the Board to deny transfer based

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on Lenard’s prior criminal history of having committed two C felonies. Ark. Code Ann.

§§ 19-93-606 to -607.8

                                     Participation in the RSVP

       Finally, the Board imposed a condition for transfer eligibility that Lenard complete

the RSVP, which is a course of treatment for sexual offenders incarcerated in the ADC.

Seamster v. State, 2009 Ark. 258, at 1, 308 S.W.3d 567, 568. Lenard is a misdemeanor sex

offender who is currently incarcerated in the ADC, but he is not incarcerated for a felony

sex offense.   Instead, Lenard is incarcerated under an executed sentencing order that

specifically exempted Lenard from further sex-offense-registration requirements or

evaluation by the ADC. Moreover, Lenard would not have been committed to the ADC

for a misdemeanor sex offense pursuant to statutory authority, and it follows then that

Lenard would not be subject to participation in programs specifically designed for felony

sex offenders that are committed to the ADC due to the nature and classification of the

offense. See Ark. Code Ann. § 5-4-402; Jones, 270 Ark. at 330, 605 S.W.2d at 9.




       8
         While prior criminal history is relevant to the Board’s risk needs assessment of
inmates eligible for transfer, there is a distinction between inmates who have committed
serious felonies, and those who have been convicted of felonies such as those for which
Lenard was convicted. Specifically, pursuant to section 16-93-206(b)(1)(C)(iii) inmates who
have not been convicted of felonies set forth in section 16-93-206(c)(1), a risk needs
assessment is relevant to a determination whether “special conditions are placed on an
inmate” who is eligible for transfer. On the other hand, inmates who have been convicted
of felonies set forth in 16-93-206(c)(1), a risk needs assessment is made for the purpose of
determining if there is “a reasonable probability that the inmate can be released without
detriment to the community.” Ark. Code Ann. § 16-93-206(c)(2)(B).

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       We have repeatedly held that parole eligibility falls clearly within the domain of the

executive branch and specifically the ADC, as fixed by statute, and the judiciary has no

jurisdiction over how parole eligibility is determined or the conditions to be placed on it

once the sentence is placed into execution. Johnson v. State, 2012 Ark. 212, at 5. However,

determinations of transfer or parole eligibility as well as the conditions placed on it must

rationally correspond to the felonies for which the inmate had been convicted and incarcerated.

See Ark. Code Ann. § 16-93-1301(c). Participation in a program designed for felony sex

offenders is not a condition that is authorized by statute, regulations, or the executed

sentencing order. The Board and the ADC are authorized to fix conditions for parole

eligibility that are consistent with Lenard’s felony conviction for failure to register as a sex

offender and his failure to cooperate with the assessment requirements under SORA, but

participation in the RSVP program is a condition that is wholly inconsistent with the

conviction and sentence imposed for the Class C felony of failure to register as a sex

offender. Participation in an assessment process pursuant to SORA is clearly a condition

that would be authorized under the prevailing authority and rationally relates to the offense

for which Lenard is currently incarcerated.

       For the reasons set forth above, the circuit court abused its discretion by denying

Lenard’s petition for declaratory relief with respect to the denial of his transfer eligibility on

March 30, 2015. Therefore, we reverse in part and remand this case to the circuit court for

entry of an order directing the Arkansas Parole Board and the Arkansas Department of

Correction in cooperation with the Sex Offender Community Notification Assessment




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Committee to determine Lenard’s transfer eligibility and the conditions placed on it

consistent with this opinion.

       Affirmed in part; reversed and remanded in part.

       Ricky Lynn Lenard, pro se appellant.

       Leslie Rutledge, Att’y Gen., by: Christian Harris, Ass’t Att’y Gen., for appellee.




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