FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26CR-16-12]
HONORABLE JOHN HOMER WRIGHT, JUDGE
Law Group, PLLC, by: W. Whitfield Hyman, for appellant.
Rutledge, Att'y Gen., by: Michael A. Hylden, for
W. GRUBER, Chief Judge
Patrick McElroy pleaded guilty on February 13, 2017, to the
offenses of first-degree battery and second-degree unlawful
discharge of a firearm from a vehicle. After conducting a
sentencing hearing before a jury, the Garland County Circuit
Court entered several orders imposing judgment and sentences.
Appellant has filed an appeal from one of those orders-a
"Judgment and Conditions of Suspension, " entered
on March 6, 2017-alleging that his sentences are
illegal. We affirm his convictions.
forth the relevant procedural history because it is important
to our disposition in this case. Both counts for which
appellant pleaded guilty are Class B felonies and carry an
authorized sentence of not less than five years nor more than
twenty years in prison. Ark. Code Ann. § 5-4-401 (Repl.
2013). At the conclusion of the sentencing trial on February
14, 2017, the jury returned verdict forms fixing
appellant's sentences at twenty years in the Arkansas
Department of Correction on the battery count and ten years
in the Arkansas Department of Correction on the firearm
count, to be served consecutively. The jury also returned a
verdict form recommending the alternative sentence of
March 6, 2017, the circuit court held a hearing to impose the
sentence. The court stated that it had considered the
jury's verdict and determined what was "appropriate
under the circumstances." On count one, first-degree
battery, the court sentenced appellant to 180 months'
imprisonment with an additional 60 months' suspended
imposition of sentence (SIS). On count two, it sentenced
appellant to ten years' SIS. The judge explained that the
sentence was "fifteen years in the custody of the
Department of Correction" with an additional fifteen
years' SIS and that the ten years' SIS on count two
would run consecutively to the five years' SIS on count
one, which would both begin to run on the date appellant is
released from custody.
circuit court entered a document entitled "Judgment and
Conditions of Suspension" on March 6, 2017, which states
that appellant had executed a guilty-plea agreement and the
court had "adjudged" that appellant was, in fact,
guilty of first-degree battery and unlawful discharge of a
firearm; pronounces a judgment of conviction; and, in
accordance with the circuit court's oral ruling, commits
him to the Department of Correction for a term of 180 months
on count one and to suspended sentences of 60 months on count
one and 120 months on count two. It does not indicate whether
the sentences run concurrently or consecutively. The document
then lists the conditions of suspension and is signed by the
circuit judge and the appellant's attorney.
weeks later, on March 22, 2017, the court entered a
sentencing order sentencing appellant to ten years'
imprisonment and ten years' SIS for first-degree battery
and to five years' imprisonment and five years' SIS
for a "terroristic act, " to run
consecutively. Finally, on March 29, 2017, the court
entered a first amended sentencing order sentencing appellant
to ten years' imprisonment and ten years' SIS on the
battery conviction and five years' imprisonment and five
years' SIS on the conviction for unlawful discharge of a
firearm, to run consecutively. Appellant filed a notice of
appeal on March 29, 2017, from the "Judgment"
entered on March 6, 2017.
appeal, appellant argues that the sentences are illegal.
First, because the circuit court disregarded Arkansas Code
Annotated section 16-90-107(d) (Repl. 2016). He contends this
statute required the court to sentence him to the minimum
sentence allowed for each count, five years. Section
16-90-107(d) provides, "If the jury in any case assesses
a punishment . . . below the limit prescribed by law for
offenses of which the defendant is convicted, the court shall
render judgment and pronounce sentence according to the
lowest limit prescribed by law in such cases." Appellant
contends that the jury's recommendation of probation is
below the limit for the offenses to which he pleaded guilty
and that, by statute, the court must sentence him to the
lowest allowable sentence for each offense, that is, five
disagree. Section 16-90-107 is not applicable here. The jury
in this case did not "assess[ ] a punishment" of
probation. Rather, the jury fixed appellant's sentences
at twenty years' imprisonment on the battery count and
ten years' imprisonment on the firearm count and
recommended those terms be served consecutively. The jury
also entered a verdict form recommending an "alternative
sentence of probation." This recommendation is not
binding on the court. Hayes v. State, 2018 Ark.App.
158, at 1; Ark. Code Ann. § 16-97-101(4) (Repl. 2016).
The actual assessment of probation is a matter that lies
within the discretion of the circuit court. Rodgers v.
State, 348 Ark. 106, 109, 71 S.W.3d 579, 581 (2002). In
sentencing, there must be an exercise of judgment by the
circuit court, not a mechanical imposition of the sentence
suggested by the jury in every case. Id.
appellant contends that his sentences are illegal because the
circuit court cannot "stack" suspended sentences.
He argues that the circuit court's sentence on the
firearm conviction-for which the court imposed ten years'
SIS to run consecutively to the sentence of fifteen
years' imprisonment plus five years' SIS on the
battery conviction- violates Arkansas Code Annotated section
5-4-307. Appellant is correct that a circuit court may not
"stack" suspended sentences imposed for different
convictions. See Walden v. State, 2014 Ark. 193, 433
S.W.3d 864. Section 5-4-307 provides specifically as follows:
(a) Except as provided in subsection (c) of this section, a
period of suspension or probation commences to run on the day
it is imposed.
(b)(1) Whether imposed at the same or a different time,
multiple periods of suspension or ...