Circuit Court’s Order of Consecutive Sentences Must Be Based on Discretion

Whether the crime is relatively minor, like drug possession or breaking and entering, or more substantial, like arson, burglary, or robbery, the concern of every criminal  defendant becomes the same once they have been found guilty: How long will the sentence be? 

By statute, each crime has a range of years for which one convicted of it can be punished. For instance, Class D felonies, such as several theft offenses (e.g., theft of property or theft by receiving of items up to a certain value), may be punished by up to six years of imprisonment. Class A felonies, which include crimes like kidnapping, several sex offended, and some serious drug crimes, etc., carry a minimum of 6 years and a maximum of 30.

Often, a defendant is accused and convicted of two or more crimes at the same time. For instance, a defendant might have been involved in a fight and taken the police on a chase when they arrived to arrest him, resulting in charges for both assault/battery and fleeing. 

Or an individual with a previous felony conviction breaks into a house and, when he is arrested, is found to possess marijuana or methamphetamine and a gun. He might then be convicted of the drug crime, burglary, and being a felon in possession of a firearm.

In these circumstances, whether the sentences for the crimes will run consecutively, i.e., back to back, or concurrently, i.e., at the same time, is key. Take the latter example. If all three crimes are assigned a sentence of 4 years, but they run consecutively, that’s 12 years. On the other hand, if a sentence of 6 years is imposed for each crime but the sentence is ordered to run concurrently, the total time spent in prison will be no more than 6 years. So despite the number of years attached to each conviction, the latter scenario is preferable.

Sentences are generally considered to run concurrently by default, but judges have the power to order them to run consecutively. A recent case, Doster v. State, 2020 Ark. App. 456, provides a reminder that courts ordering such a sentence must actually use their discretion when doing so.

The defendant in Doster was convicted of several drug offenses and a church zone enhancement and ordered to serve the sentences for those offense consecutively. From the opinion:

[A] Union County Circuit Court jury convicted appellant Rodney Dain Doster of delivery of methamphetamine or cocaine (more than two grams, less than ten grams), delivery of methamphetamine or cocaine (less than two grams), and maintaining a drug premises. The jury sentenced appellant to five years’ imprisonment on the larger delivery conviction, a $2,000 fine on the smaller delivery conviction, and five years’ imprisonment on the drug-premises conviction. In addition, the jury found appellant guilty of committing both delivery offenses within the proximity of a church resulting in mandatory ten-year enhancements on each. The trial court ordered the sentences to run consecutively.

Opinion at 1-2. A concurrent sentence would have been 10 years. Consecutively, Doster faces 40 years. On appeal, he argued that the trial court abused its discretion.

In handing down the sentence and explaining its reasoning, the circuit court stated:

I’m not really sure what the thought process was on why this had to go to a jury, but it did. I know that the State had made offers to clear this and clear the other case and I’m confident this jury considered the total effective sentence of thirty years in the Department of Correction when they made this call. It was clear to me when they came back and sentenced you to the minimum on Count One and Count Three and a fine on Count Two. They’ve already taken this into consideration so it will be the judgment of the Court that you serve a term of thirty years in the Department of Corrections which I believe is the correct math if they run consecutive to one another which I believe is the jury’s thought process.

Opinion at 2-3. The Court of Appeals determined that this did not meet the standard for exercising discretion under Arkansas law, which the court described as follows:

Arkansas Code Annotated section 5-4-403(a) (Repl. 2013) provides, “When multiple sentences of imprisonment are imposed on a defendant convicted of more than one (1) offense . . . the sentences shall run concurrently unless, upon recommendation of the jury or the court’s own motion, the court orders the sentences to run consecutively.” Whether sentences should be run consecutively or concurrently is within the sole discretion of the trialcourt, and exercise of that discretion will not be reversed on appeal unless there is an abuse of that discretion; it is a heavy burden to prove that a trialcourt did not exercise its discretion in determining whether to run sentences consecutively.Throneberry v. State, 2009 Ark. 507, 342 S.W.3d 269. The appellate court will not presume that the trial court failed to exercise its discretion. See Blagg v. State, 72 Ark. App. 32, 35, 31 S.W.3d 872, 874 (citing Urquhart v. State, 273 Ark. 486, 621 S.W.2d 218 (1981)). In addition, the trial court’s failure to state its reasons for consecutive sentences, standing alone, is not sufficient to meet the appellant’s heavy burden to prove that a trial court did not exercise its discretion in determining whether to run sentencesconsecutively. Throneberry, 2009 Ark. at 10, 342 S.W.3d at 274.

Opinion at 3. 

Looking to this authority and previous case law that prohibits a trial court from simply rubber stamping, or attempting to rubber stamp, a jury’s  apparent preference for a consecutive sentence. The Court of Appeals therefore reversed and remanded for resentencing:

[T]he trial court appears to have tried to implement what it perceived the jury intended as evidenced by its comments from the bench when, in fact, the jury had made no recommendation regarding concurrent or consecutive sentences. Accordingly, we remand for resentencing consistent with this decision but without implying how the sentences should be imposed.

Opinion at 5-6.

Bottom line: A court, not the jury, makes the final decision as to whether sentences will run consecutively or concurrently, and if the court fails to do so, that can constitute reversible error.

If a case has concluded with a guilty plea or finding of guilt after a trial, the next step is to work to get a fair sentence. Those facing criminal charges should  consult with an Arkansas Criminal Law Attorney as soon as possible. Contact our firm by phone, email, or our contact form if you would like your potential case evaluated.