Pennington v. State.‎(143)‎

Cite as 2017 Ark. 305

SUPREME COURT OF ARKANSAS
No. CR-17-143

FREDERICK PENNINGTON, JR. Opinion Delivered: November 2, 2017
APPELLANT

V. APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT
STATE OF ARKANSAS [60CR-77-1933]
APPELLEE
HONORABLE HERBERT T.
WRIGHT, JUDGE

AFFIRMED.

ROBIN F. WYNNE, Associate Justice

This case is one of three companion cases in which appellant Frederick Pennington,

Jr., has appealed from sentencing orders entered after the original judgments of conviction

were remanded for resentencing. In all three cases, appellant contends that the circuit court

lacked the authority to order that the sentences in one of the cases run consecutively to the

sentences in the other two cases. We affirm.

In 1978, appellant pled guilty to one count of first-degree murder and one count of

aggravated robbery in Pulaski County Circuit Court case CR77-1933. He was sentenced

to life imprisonment on each count. In case CR77-1934, he was sentenced to life

imprisonment on one count of aggravated robbery and twenty years’ imprisonment on one

count of first-degree battery. In case CR77-1939, he received two life sentences on two

counts of aggravated robbery. The judgments of conviction do not indicate whether the

sentences were to run concurrently or consecutively. At the time the judgments were
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entered, sentences on multiple counts ran concurrently unless stated otherwise on the

judgment. Ark. Stat. Ann. § 41-903(1) (Repl. 1977).

In 2014, this court granted appellant’s petition for writ of habeas corpus and ordered

that he be resentenced on the ground that the judgments were facially invalid because his

sentence of life imprisonment with parole was not authorized by the statute in effect at the

time his crimes were committed. Pennington v. Hobbs, 2014 Ark. 441, 497 S.W.3d 186.

At the resentencing hearing, appellant joined an argument made by a co-defendant

that the trial court lacked jurisdiction to run the sentence in CR77-1933 consecutively to

the sentences imposed in the other cases. The trial court rejected this argument and

sentenced appellant as follows. In CR77-1933, he received 240 months’ imprisonment on

each charge, to be run concurrently, with an additional 360 months’ imprisonment

suspended on each charge. In CR77-1934, he received 600 months’ imprisonment on the

count of aggravated robbery and 240 months’ imprisonment on the count of first-degree

battery, to be run concurrently. In CR77-1939, he received 600 months’ imprisonment

on each count of aggravated robbery, to be run concurrently. The trial court ordered that

the sentence imposed in CR77-1933 be run consecutively to the sentences imposed in the

other two cases, resulting in an aggregate sentence of 840 months’ imprisonment. This

appeal followed entry of the sentencing orders.

Appellant argues on appeal, as he did before the trial court, that the trial court did

not have the authority to run his sentence in CR77-1933 consecutively to the sentences in

CR77-1934 and CR77-1939. In support of his argument, appellant cites this court’s

decision in Hadley v. State, 322 Ark. 472, 910 S.W.2d 675 (1995). However, in Hadley,

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this court held that the trial court could not amend the original valid sentence to run the

sentences consecutively after the sentence had been put into execution. Here, the original

sentences were invalid, and we reversed and remanded for resentencing, so Hadley is not

applicable.1

Appellant also relies on this court’s decision in Campbell v. State, 288 Ark. 213, 703

S.W.2d 855 (1986), specifically the following statement by the court in that opinion:

“Where a sentence involves separate sentences, as with several counts for example, it is true

the law generally prohibits the modification of the legal portion of the sentence.” 288 Ark.

at 217, 703 S.W.2d at 857. Appellant neglects to include in his argument the very next

sentence of Campbell, which states, “However, when there is an error in one portion of an

individual sentence, as here, the courts view the sentence as an indivisible totality and if

modification is required, the court may on resentencing impose any sentence it could have

lawfully imposed at the outset.” 288 Ark. at 217, 703 S.W.2d at 857–58. Thus, it is clear

that, so long as the sentence could have been imposed in 1978, the trial court was permitted

to impose it on remand.

Per Arkansas Statutes Annotated section 41-903(1), the trial court was permitted in

1978 to run appellant’s sentences consecutively; it simply chose not to do so. Under

1
Appellant also cites several cases applying the principle used in Hadley to revocation
cases. However, this case involves sentences that were reversed and remanded, not revoked.
Likewise, his citation to Avants v. State, 293 Ark. 24, 732 S.W.2d 149 (1987), is of no
moment because, in that case, the trial court issued a corrected judgment; the judgment was
not reversed and remanded as is the case here.

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Campbell, the trial court was permitted to impose any punishment available in 1978.2 As it

was permissible in 1978 to sentence appellant to the term of years imposed on resentencing

and to run the sentences as ordered, the trial court did not exceed its jurisdiction in imposing

appellant’s sentence.

Affirmed.

HART, J., concurs.

JOSEPHINE LINKER HART, Justice, concurs. Mr. Pennington’s case must be

affirmed because he did not raise the argument that he makes on appeal to the circuit court.

Although I am loathe to unnecessarily resort to procedural bars, it is imperative that this

court treat equally all parties who come before us. At the resentencing hearing,

counsel for Mr. Pennington and his codefendant, Billy Ray Hale, appeared. Although

represented by separate attorneys, Mr. Pennington’s trial counsel adopted all of the

arguments made on behalf of Mr. Hale. In general, the trial attorneys argued that the

sentences in 60CR-77-1933, which arose from Mr. Pennington’s conviction on charges of

first-degree murder and aggravated robbery, should be reduced to a term of years and run

concurrent to the sentences imposed in 60CR-77-1939 and 60CR-77-1934. In support of

this argument, Mr. Pennington’s trial counsel argued that the sentences entered were part

2
The Supreme Court of the United States has held that there is no per se prohibition
against consecutive sentences being imposed after reversal of concurrent sentences, so long
as the prohibition against vindictive resentencing is not violated. North Carolina v. Pearce,
395 U.S. 711 (1969). As appellant’s sentence on remand was reduced from life
imprisonment to a term of seventy years, it is clear that Pearce was not violated. See Norton
v. State, 731 So.2d 762 (Fl. 1999) (holding that the imposition of more lenient consecutive
sentences following the reversal of concurrent sentences does not violate Pearce).

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of a negotiated plea and that he was entitled to the “benefit of the bargain.” His trial counsel

also argued that this case implicated Miller v. Alabama, 567 U.S. 460 (2012). Mr.

Pennington’s trial counsel adopted the arguments raised by Mr. Hale’s counsel who asserted

that a life-without-parole sentence was not available in this case under Miller because there

was no basis for finding that the Mr. Hale was “incorrigible.” That argument primarily

concerned evidence that Mr. Hale was not the shooter. None of these arguments are raised

on appeal.

On appeal, Mr. Pennington’s argument is quite different. Citing Nelson v. State, 284

Ark. 156, 680 S.W.2d 91 (1984), and Cashion v. State, 265 Ark. 677, 580 S.W.2d 470

(1979), Mr. Pennington argues that because the original sentences had been placed into

execution, the circuit court had no authority to change the sentences from concurrent to

consecutive. Essentially, this argument challenged the circuit court’s jurisdiction to enter the

new sentencing order.

I am mindful that this court has often said that the issue of a circuit court’s jurisdiction

can be raised for the first time on appeal. However, in making this argument, Mr.

Pennington’s appellate counsel has misstated the factual predicate necessary to assert this

jurisdictional argument: the sentence placed in execution must be valid. Williams v. State,

229 Ark. 42, 313 S.W.2d 242 (1958). In the case before us, challenging the jurisdiction of

the circuit court to impose a new sentence was foreclosed under the law-of-the-case

doctrine because in granting Mr. Pennington’s habeas petition and ordering resentencing,

we had already determined that Mr. Pennington’s original sentence was not valid. Pennington

v. Hobbs, 2014 Ark. 441, 497 S.W.3d 186.

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As for as the sentences that the circuit court imposed in this case, our inquiry need

go no further than deciding whether the sentences were illegal on the face of the sentencing

order. A sentence is “illegal on its face” when it falls outside the range authorized by statute.

See Fritts v. State, 298 Ark. 533, 768 S.W.2d 541 (1989). The sentences imposed by the

circuit court were not outside the statutory range and therefore not illegal on the face of the

sentencing order.

I would decline to opine further whether the sentences imposed on Mr. Pennington

were proper. I cannot ignore, as his appellant counsel obviously has, that the original

sentences were imposed after a negotiated plea. All of the sentences imposed in 60CR-77-

1933, as well as those imposed in 60CR-77-1939 and 60CR-77-1934, were set to run

concurrently. Moreover, the original sentences imposed on Mr. Pennington provided that

he would be eligible for parole. I cannot say that Mr. Pennington got “the benefit of his

bargain.” But alas, that argument is not before us.

I concur.

William R. Simpson, Jr., by: Clint Miller, Deputy Public Defender, for appellant.

Leslie Rutledge, Att’y Gen., by: Brooke Jackson Gasaway, Ass’t Att’y Gen., for appellee.