Calvin Perry and Marcus Atkins v. Dexter Payne, Director, Arkansas Division of Correction

Summary

The Arkansas Supreme Court held that Calvin Perry and Marcus Atkins's parole eligibility for fifteen-year firearm enhancements must be calculated under the parole-eligibility law in effect when their offenses were committed in April 2007. Relying on Rogers v. Arkansas Department of Correction, the court reversed and remanded with directions to issue a writ of mandamus requiring the Arkansas Division of Correction to recalculate eligibility. The court also held that sovereign immunity did not bar the action because the defense was not raised below, while Justice Womack dissented on that issue.

Holdings

1. Parole eligibility for a firearm enhancement must be determined under the law in effect when the underlying offense was committed. Because Perry and Atkins committed their offenses in April 2007, their enhancements were governed by Arkansas Code Annotated section 16-93-1301 (Supp. 2005), which treated them as unclassified felonies eligible for parole after the applicable one-half or one-third period, rather than by the later 70-percent requirement.
2. The circuit court should issue a writ of mandamus directing the Arkansas Division of Correction to calculate Perry's and Atkins's parole eligibility consistently with section 16-93-1301 and the court's opinion.
3. Sovereign immunity is treated as an affirmative defense that must be raised below, and it did not bar this mandamus action because the State failed to raise the defense and conceded that mandamus should issue. Sovereign immunity also did not deprive the courts of subject-matter jurisdiction over mandamus.

Questions Presented

1. Whether the Arkansas Division of Correction improperly applied the post-July 2, 2007 parole-eligibility provision requiring service of 70 percent of a firearm enhancement to offenses committed in April 2007.
2. Whether the circuit court had jurisdiction to issue a writ of mandamus directing the Division of Correction to recalculate parole eligibility despite Arkansas constitutional sovereign immunity.
3. Whether sovereign immunity barred the mandamus action when the State did not raise immunity below and conceded that mandamus should issue.

Disposition

reversed_and_remanded