FREDERICK PENNINGTON, JR. APPELLANT
STATE OF ARKANSAS APPELLEE
FROM THE PULASKI COUNTY CIRCUIT COURT [60CR-77-1933]
HONORABLE HERBERT T. WRIGHT, JUDGE
William R. Simpson, Jr., by: Clint Miller, Deputy Public
Defender, for appellant.
Rutledge, Att'y Gen., by: Brooke Jackson Gasaway,
Ass't Att'y Gen., for appellee.
F. WYNNE, ASSOCIATE JUSTICE.
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.
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 entered, sentences on multiple counts ran concurrently
unless stated otherwise on the judgment. Ark. Stat. Ann.
§ 41-903(1) (Repl. 1977).
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
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
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, 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
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
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
Campbell, the trial court was permitted to impose
any punishment available in 1978. 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
Josephine Linker Hart, ...