Cite as 2024 Ark. 19

SUPREME COURT OF ARKANSAS

No. CV-23-282

THERNELL HUNDLEY

APPELLANT

V.

DEXTER PAYNE, DIRECTOR, 

ARKANSAS DEPARTMENT OF 

CORRECTION

APPELLEE

Opinion Delivered: February 15, 2024

PRO SE APPEAL FROM THE

JEFFERSON COUNTY CIRCUIT 

COURT

[NO. 35CV-22-263]

HONORABLE JODI RAINES 

DENNIS, JUDGE

AFFIRMED.

KAREN R. BAKER, Associate Justice

Appellant Thernell Hundley appeals the Jefferson County Circuit Court’s order 

granting appellee Dexter Payne’s motion for summary judgment and dismissing Hundley’s 

petitions for declaratory judgment and writ of mandamus. In his petitions, Hundley sought 

a declaration that he was eligible for parole contrary to the determination made by the 

Arkansas Department of Correction (ADC) and asked the circuit court to compel the ADC 

to grant him parole status. The circuit court granted summary judgment on the basis that 

Hundley was ineligible for parole pursuant to Arkansas Code Annotated section 16-93-

607(c)(5) (1987) because he had been convicted of four prior felonies at the time of his last 

conviction for first-degree battery. We affirm.
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I. Background

In July 1980, Hundley pleaded guilty to capital murder and rape.

1 A mandatory 

sentence of life without parole was imposed for the murder, and a concurrent life sentence 

for rape was also imposed that was later reduced to a sentence of fifty years’ imprisonment.2 

At the time he committed the crimes in September 1979, Hundley was seventeen years old. 

In 2012, the Supreme Court concluded that the Eighth Amendment to the United 

States Constitution forbade any sentencing scheme that mandated life in prison without the 

possibility of parole for juvenile offenders under the age of eighteen. Miller v. Alabama, 567 

U.S. 460 (2012). Hundley’s life sentence for capital murder was vacated on June 30, 2015,

and a resentencing hearing was held on December 17, 2018. The jury heard the mitigating 

evidence and again sentenced Hundley to life imprisonment. He appealed the sentence, 

and this court affirmed. Hundley v. State, 2020 Ark. 89, 594 S.W.3d 60.

During Hundley’s incarceration for capital murder and rape, he committed the 

following four additional felonies: second-degree battery in 1986 for which he was 

sentenced to a consecutive term of nine years’ imprisonment; second-degree battery in 1987

for which he was sentenced to a concurrent term of six years’ imprisonment; attempted 

first-degree murder in 1988 for which he was sentenced to a consecutive term of sixty years’ 

imprisonment; and first-degree battery in 1989 for which he was sentenced to a consecutive 

1When Hundley committed the crime of capital murder, it was classified as a Class 

A felony, which was the highest class of felony. See Ark. Stat. Ann. § 41-901 (Repl. 1977); 

Ark. Stat. Ann. § 41-1501 (Repl. 1977). Likewise, rape was classified as a Class A felony. 

See Ark. Stat. Ann. § 41-1803 (Repl. 1977). 

2The sentence was reduced to fifty years’ imprisonment in accordance with the 

Supreme Court decision in Graham v. Florida, 560 U.S. 48 (2010).
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term of forty years’ imprisonment. Second-degree battery is a Class D felony. In 1988 and 

1989, attempted first-degree murder was a Class A felony, and first-degree battery was a 

Class B felony. See Ark. Code Ann. § 5-3-203 (1987); Ark. Code Ann. § 5-13-201(c)

(Supp. 1987). 

II. Standard of Review

Our standard of review with respect to bench trials involving declaratory-judgment 

actions is not whether there is substantial evidence to support the finding of the court but 

whether the court’s findings were clearly erroneous or clearly against the preponderance of 

the evidence. Bryant v. Osborn, 2014 Ark. 143. A finding is clearly erroneous when, 

although there is evidence to support it, the reviewing court is left with a firm conviction 

that a mistake has been committed. Id. The standard of review of a circuit court’s grant or 

denial of a petition for writ of mandamus is whether the circuit court abused its discretion. 

Rogers v. Ark. Dep’t of Corr., 2022 Ark. 19, 638 S.W.3d 265. A circuit court abuses its 

discretion when it makes a decision that is arbitrary and capricious. Id. 

On appeal, this court determines if summary judgment was appropriate by deciding

whether the evidentiary items presented by the moving party leave a material question of 

fact unanswered. Cannady v. St. Vincent Infirmary Med. Ctr., 2018 Ark. 35, 537 S.W.3d 259.

This court views the evidence in the light most favorable to the party against whom the 

motion was filed, resolving all doubts and inferences against the moving party. Id. This 

review is not limited to the pleadings but also includes the affidavits and other documents 

filed by the parties. Id.
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III. Declaratory Relief

The purpose of a declaratory judgment is to settle, and to afford relief from,

uncertainty and insecurity with respect to rights, status, and other legal relations. Rogers v. 

Knight, 2017 Ark. 267, 527 S.W.3d 719. The purpose of a writ of mandamus is to enforce 

an established right or to enforce the performance of a duty. Harmon v. Noel-Emsweller, 

2022 Ark. 26. A petitioner must show a clear and certain right to relief and that there is no 

other remedy. Id. If the right to declaratory relief is not established, there is no basis for 

issuance of a writ of mandamus. Waller v. Kelley, 2016 Ark. 252, 493 S.W.3d 757. 

IV. Claims for Relief

Hundley made the following claims in his petition for declaratory judgment and writ 

of mandamus in the circuit court that are reasserted on appeal:3(1) that his conviction for 

rape is illegal and should be set aside because it violates the constitution and Arkansas Statutes 

Annotated section 41-501 (Repl. 1977) because rape was the underlying felony supporting 

his capital-felony-murder conviction, it was merged with the capital-murder conviction,

and he is eligible for parole because he has not committed four felonies as defined by 

Arkansas Code Annotated section 16-93-607(a) (1987);

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(2) that he is entitled to parole 

eligibility under the Fair Sentencing of Minors Act (FSMA), codified at Arkansas Code 

Annotated sections 5-4-104(b) (Repl. 2021) and 16-93-621(a)(2)(A) (Repl. 2021); (3) that 

3Hundley argued in the circuit court that he was not separately incarcerated for each 

of the four felonies committed while he was already incarcerated. However, he did not 

reassert this argument on appeal, and it is considered abandoned. Sylvester v. State, 2017 

Ark. 309, 530 S.W.3d 346.

4Pursuant to section 16-93-607(a), “felonies” means crimes that are classified as Class 

Y, Class A, or Class B felonies. 
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considering this court’s supplemental opinion in Bosnick v. Lockhart, 283 Ark. 209, 677

S.W.2d 292 (1984) (supplemental opinion on denial of rehearing), his parole eligibility 

should be determined by the law in effect when he committed his first crimes in 1979; (4) 

that the ADC and the circuit court incorrectly considered his two Class D felony convictions 

as a basis for denying him parole under Arkansas Code Annotated section 16-93-607(c)(5). 

A. Rape Conviction and Merger

Hundley’s first argument challenges his conviction for rape because it was listed as 

the underlying felony for the capital-murder charge according to an information attached 

to Hundley’s petition. Hundley asserts that the rape conviction is void and illegal because 

it merged with the charge of capital murder and should have been vacated, and his 

classification as a fourth offender in accordance with section 16-93-607(c)(5) is therefore

flawed. See Richie v. State, 298 Ark. 358, 767 S.W.2d 522 (1989) (underlying felony 

conviction merged with capital-felony-murder conviction). 

In support of his allegation that his rape conviction should be vacated, Hundley refers 

to two separate informations filed in 1979 that are attached to his petition. One information

charged Hundley with capital murder in furtherance of the crime of rape, and the second 

charged Hundley with rape by forcible compulsion. Each charge was assigned a separate 

docket number, and the judgment of conviction for capital murder and the judgment for 

rape are separate and filed under distinct docket numbers. However, both informations list 

the same date for the date that the crimes were committed. 

Hundley pleaded guilty to both crimes in 1980, and the capital-murder judgment 

does not list rape or any other felony as underlying the capital-murder conviction. 
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Allegations of a defective information are not generally considered to be jurisdictional and 

are treated as trial error. See Philyaw v. Kelley, 2015 Ark. 465, 477 S.W.3d 503 (habeas

proceeding). An illegal sentence is one that is illegal on its face. Redus v. State, 2019 Ark. 

44, 566 S.W.3d 469. The separate judgments for rape and capital murder are not facially 

illegal.

This court has held that a criminal defendant may not use a declaratory-judgment 

action to challenge a criminal conviction. Walker v. Kelley, 2020 Ark. 183. A criminal 

defendant is required to raise any alleged errors regarding his conviction in the trial court or 

on direct appeal and may not raise them in a collateral civil proceeding. Id. A declaratoryrelief action is not a substitute for an appeal of the criminal conviction. Id. Here, Hundley 

is challenging his separate conviction for rape.

This court has also made clear that the merger doctrine must be raised in the trial 

court before it may be addressed on direct appeal. Abernathy v. State, 278 Ark. 250, 644 

S.W.2d 590 (1983). In view of this, Hundley’s merger claim is not an issue of subjectmatter jurisdiction that can be raised at any time. See Herron v. Ark. Dep’t of Corr., 2022 

Ark. 220, 655 S.W.3d 518. When a defendant enters a plea of guilty, the plea is his trial. 

See generally Trammel v. Kelley, 2020 Ark. 342, 610 S.W.3d 158 (habeas proceeding). A 

guilty plea waives nonjurisdictional defects and errors. Garrett v. State, 296 Ark. 550, 551, 

759 S.W.2d 23, 24 (1988). 

Here, Hundley pleaded guilty to both rape and capital murder. Any alleged errors 

by the trial court in accepting Hundley’s guilty pleas—including his merger argument—

should have been raised at the time of his plea hearing. As set forth above, Hundley cannot 
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use a collateral civil proceeding to challenge his rape conviction. Therefore, Hundley’s 

separate conviction for rape is not illegal on its face and is not subject to being vacated. 

B. Parole Eligibility Under the FSMA

Hundley received a mandatory sentence of life without parole after pleading guilty 

to capital murder and rape in 1980. See Hundley, 2020 Ark. 89, 594 S.W.3d 60. Hundley’s 

life sentence for capital murder was vacated on June 30, 2015. Hundley was subsequently 

provided with a resentencing hearing in accordance with the United States Supreme Court’s 

holding in Miller, which was held on December 17, 2018, and after hearing the evidence 

offered in mitigation, the jury again sentenced Hundley to life imprisonment. Id. Hundley 

alleges that he is entitled to parole under the FSMA. 

The parole provisions of the FSMA state in pertinent part that a minor under the age 

of eighteen years convicted of capital murder on or before March 20, 2017, is eligible for 

release on parole no later than after thirty years of incarceration. See Ark. Code Ann. § 16-

93-621(a)(2)(A); see also Ark. Parole Bd. v. Johnson, 2022 Ark. 209, 654 S.W.3d 820. 

However, whether the parole provisions of the FSMA are currently applicable to Hundley 

need not be addressed because, as discussed below, Hundley is not entitled to parole because 

he is a fourth offender under section 16-93-607(c)(5).

C. Determination of Parole Eligibility and Date of Offense

Hundley relies on a supplemental opinion, Bosnick, 283 Ark. 209, 677 S.W.2d 292,

and alleges that his parole eligibility should be governed by the parole statute in effect at the 

time of his 1980 convictions. Hundley takes issue with section 16-93-607(c)(5)—the statute
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in effect at the time he committed attempted first-degree murder5and first-degree battery

in 1988 and 1989 while incarcerated for capital murder—which provides in pertinent part 

that “[i]nmates classified as fourth offenders . . . shall not be eligible for parole.” Hundley 

contends that he should not be considered a fourth offender under the laws in effect when 

he committed his last two felonies but should be parole eligible on the basis of those parole 

statutes in effect at the time of his original crimes. Hundley has not stated a ground for 

relief. 

Hundley’s parole status is based on the date his two most recent offenses took place 

and not on the dates he was sentenced for those crimes. Further, the original opinion,

Bosnick, 283 Ark. 206, 672 S.W.2d 52, makes clear that the issues addressed in both the 

original opinion and the supplemental opinion were applicable to parole statutes that were 

enacted in 1968 and 1977. Id. at 207, 672 S.W.2d at 53. The parole statutes challenged by 

Hundley in his declaratory-relief action address parole-eligibility statutes for habitual

offenders that were enacted in 1983 and are applicable to the crimes committed by Hundley 

in 1988 and 1989. 

In any event, we have consistently made clear that parole eligibility is determined by 

the law in effect at the time the crime is committed. Warren v. Felts, 2017 Ark. 237. A 

defendant is charged with knowledge that if he commits an additional offense, his parole 

eligibility will be determined in accordance with the law in effect at the time the last felony 

was committed. Davis v. Kelley, 2018 Ark. 182, 547 S.W.3d 54. 

5Section 16-93-607 was enacted by Act 825 of 1983, §§ 1–3. As stated above, 

Hundley committed attempted first-degree murder in 1988 and first-degree battery in 

1989.
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Parole eligibility is based on the number of times a defendant has been convicted and 

incarcerated for felony convictions. Ark. Code Ann. § 16-93-607(c)(5). Because Hundley 

committed attempted first-degree murder in 1988 and first-degree battery in 1989, after 

section 16-93-607 had been enacted, he is charged with the knowledge that if he committed

the last of the four felonies, he would become ineligible for parole.

D. Parole Eligibility and Class D Felonies

Finally, Hundley contends that the ADC has improperly denied that he is eligible for 

parole due to his convictions for the two Class D felonies of second-degree battery that he

committed in 1986 and 1987. As stated above, pursuant to section 16-93-607(a), felonies

for purposes of denying parole eligibility are those crimes classified as Class Y, A, or B

felonies. Hundley argues that the ADC and the circuit court have erroneously relied on

two prior Class D felonies to deny his parole eligibility. Hundley is mistaken. Hundley’s 

convictions for capital murder, rape, attempted first-degree murder and first-degree battery 

meet the definition of felony as defined by section 16-93-607(a), and Hundley has been 

properly denied parole on the basis of those convictions alone. 

The circuit court did not clearly err when it granted the motion for summary 

judgment with respect to Hundley’s petition for declaratory relief because Hundley failed 

to present sufficient material facts and evidence demonstrating entitlement to such relief,

and there was not an abuse of discretion in the denial of the petition for mandamus. 

Affirmed. 

WOMACK, J., dissents. 
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SHAWN A. WOMACK, Justice, dissenting. For the reasons outlined in my 

dissenting opinion in Perry v. Payne, I respectfully dissent. 2022 Ark. 112, at 5.

Thernell Hundley, pro se appellant.

Tim Griffin, Att’y Gen., by: Joseph Karl Luebke, Ass’t Att’y Gen., for appellee.