Harmon v. Noel-Emsweller

• Decision Date: 10 February 2022
• Docket Number: CV-21-223
• Citation: 2022 Ark. 26
• Parties: HENRY A. HARMON APPELLANT v. KAYLA NOEL-EMSWELLER, RECORDS SUPERVISOR, ARKANSAS DEPARTMENT OF CORRECTION; DEXTER PAYNE, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION APPELLEES
• Court: Arkansas Supreme Court

2022 Ark. 26

HENRY A. HARMON APPELLANT v. KAYLA NOEL-EMSWELLER, RECORDS SUPERVISOR, ARKANSAS DEPARTMENT OF CORRECTION; DEXTER PAYNE, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION APPELLEES

No. CV-21-223

Supreme Court of Arkansas

February 10, 2022

PRO SE APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT [NO 35CV-20-361] HONORABLE JODI RAINES DENNIS, JUDGE

Henry A. Harmon, pro se appellant.

Leslie Rutledge, Att'y Gen., by: Adam Jackson, Ass't Att'y Gen., for appellee.

RHONDA K. WOOD, ASSOCIATE JUSTICE

Henry Harmon, an inmate, appeals the circuit court's denial of his petition for declaratory judgment and mandamus relief. Harmon's allegations concern the Arkansas Department of Correction's (ADC's) calculation of his parole eligibility based on whether his sentences were concurrent or consecutive. Additionally, he asserts that his convictions for manslaughter and robbery, to which he pleaded guilty violated double jeopardy. This later theory derives from Harmon's belief that the robbery charge merged into the manslaughter conviction. We affirm.

Harmon was convicted in the Pulaski County Circuit Court of first-degree murder, two counts of aggravated robbery, and aggravated assault and was sentenced to 105 years' imprisonment. See Harmon v. State, 2014 Ark.App. 70. He appealed, and the Arkansas Court of Appeals affirmed his conviction. Id. We reviewed the court of appeals' decision and reversed and remanded because the circuit court had improperly excluded DNA evidence. Harmon v. State, 2014 Ark 391, 441 S.W.3d 891. Harmon's second trial resulted in a mistrial. Harmon v. State, 2019 Ark.App. 492, 588 S.W.3d 432.

Harmon then entered a negotiated guilty plea to manslaughter and robbery. As a result of the plea, Harmon received consecutive sentences of sixty months' imprisonment for manslaughter a Class C felony, and 480 months' imprisonment for robbery, a Class B felony. This resulted in an aggregate sentence of 540 months', or 45 years', imprisonment. Harmon thereafter filed a petition under Arkansas Rule of Criminal Procedure 37.1. The circuit court denied relief, and the court of appeals affirmed. Id.

A petition for declaratory judgment and writ of mandamus is civil. Waller v. Kelley, 2016 Ark. 252, 493 S.W.3d 757. A case is nonjusticiable when any judgment rendered would have no practical legal effect on a then existing legal controversy. Neely v. McCastlain, 2009 Ark. 189, 306 S.W.3d 424. The purpose of a writ of mandamus is to enforce an established right or to enforce the performance of a duty. Waller, 2016 Ark. 252, 493 S.W.3d 757. A petitioner must show a clear and certain right to the relief and that there is no other remedy. Id. Additionally, parole eligibility is determined by the law in effect when the crime is committed. Waller, 2016 Ark. 252, 493 S.W.3d 757. And generally, the determination of parole eligibility is solely within the province of the ADC. Id. Still, declaratory and mandamus relief may be appropriate if the ADC has acted ultra vires, has acted beyond its legal authority, or has failed to adhere to a parole statute. We review a circuit court's decision that there is no justiciable controversy de novo. Rogers v. Knight, 2017 Ark. 267, 527 S.W.3d 719.

Harmon alleges that the ADC has miscalculated his parole-eligibility date by running his sentences for manslaughter and robbery concurrently rather than consecutively. Harmon also claims that he has not been...