Shawn Spence v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

SHAWN SPENCE

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 03-484

FEBRUARY 18, 2004

APPEAL FROM THE LOGAN

COUNTY CIRCUIT COURT,

SOUTHERN DISTRICT

[NO. CR02-56]

HONORABLE PAUL EDWARD

DANIELSON, JUDGE

AFFIRMED

John B. Robbins, Judge

Appellant Shawn Spence was convicted in Logan County Circuit Court by a jury of three counts of breaking or entering, one count of felony theft of property, and two counts of misdemeanor theft of property. Appellant appeals only the sentencing rendered by the trial judge upon the three theft-of-property convictions.1 The jury recommended a five-year suspended sentence and a $1000 fine on felony theft, and a one-year suspended sentence and a $1000 fine on each of the two misdemeanor thefts. The felony theft concerned the taking of a four-wheeler, and the misdemeanor thefts concerned the taking of a chainsaw from one person and a cell phone, a wind chime, and a dress from another person. The judge did not follow the jury's recommendation for suspension. The trial judge instead sentenced appellant to five years in the Arkansas Department of Correction and a $1000 fine for the felony theft. For each of the two misdemeanor thefts, the trial judge sentenced appellant to one year in the county jail and a $1000 fine. The county-jail time was run concurrently with the five-year prison term. This effectively gave appellant five years in prison and a $3000 fine to repay upon release. Appellant argued to the trial judge that the jury's recommendation should have been followed and that the judge's decision did not serve justice. The judge disagreed with appellant's argument, and this appeal resulted. Appellant now argues to us that on these three convictions, the trial judge erred by sentencing him to incarceration instead of imposing the jury's suggested suspensions. We affirm.

Appellant argues that because the length of the sentences recommended to be suspended by the jury were within statutory range, the trial judge was mandated to suspend them. Appellant is mistaken. Under our bifurcated trial procedure, the jury fixes punishment following the penalty phase of the trial. Ark. Code Ann. § 5-4-103 (Repl. 1997). However, the jury is not empowered to suspend sentences by the authority it is given in Chapter 4 of Title 5 in our Code.

Nevertheless, the jury may recommend an alternative sentence such as suspension or probation. Ark. Code Ann. § 16-97-101(4) (Supp.1995). Arkansas Code Annotated section 16-97-101 reads in relevant part:

The following procedure shall govern jury trials which include any felony charges:

(1) The jury shall first hear all evidence relevant to every charge on which a defendant is being tried and shall retire to reach a verdict on each charge.

(2) If the defendant is found guilty of one (1) or more charges, the jury shall then hear additional evidence relevant to sentencing on those charges. Evidence introduced in the guilt phase may be considered, but need not be reintroduced at the sentencing phase.

(3) Following the introduction of additional evidence relevant to sentencing, if any, instruction on the law, and argument, the jury shall again retire and determine a sentence within the statutory range.

(4) The court, in its discretion, may also instruct the jury that counsel may argue as to alternative sentences for which the defendant may qualify. The jury, in its discretion, may make a recommendation as to an alternative sentence. However, this recommendation shall not be binding on the court.

(Emphasis added.) That the jury's recommendation on alternative sentencing is only advisory and not binding on the trial court has been so held in numerous Arkansas appellate cases. See Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994); Clayton v. State, 247 Ark. 643, 447 S.W.2d 319 (1969); Wright v. State, 17 Ark. App. 24, 702 S.W.2d 811 (1986); James v. State, 11 Ark. App. 1, 665 S.W.2d 883 (1984). The actual assessment of probation or suspension is a matter that lies within the discretion of the trial court. Ark. Code Ann. § 5-4-301 (Repl.1993); Higgins v. State, 326 Ark. 1030, 936 S.W.2d 740 (1996); Hill v. State, supra; Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978), cert. denied, 440 U.S. 911 (1979); Bing v. State, 23 Ark. App. 19, 740 S.W.2d 156 (1987); Fisk v. State, 5 Ark. App. 5, 631 S.W.2d 626 (1982). The trial court alone has the authority in a proper case to impose a suspended sentence. See id.

Appellant also argues that because the jury was not specifically instructed on its authority to recommend suspension and was not instructed that the recommendation did not have to be followed, then the jury's recommendation was somehow mandatory. We disagree with his argument. In Dale v. State, 55 Ark. App. 184, 935 S.W.2d 274 (1996), our court rejected Dale's contention that the trial court committed reversible error when it failed to instruct the jury on alternative sentencing. We held that:

[A]uthorizing a particular form of punishment is a far cry from mandating that it be considered, or that the jury be instructed that it be considered in a given case. Moreover, the permissive tone of the language in § 16-97-101(4) is unmistakable. As we stated in a decision that predated the bifurcated sentencing statute, a criminal defendant has no right to a suspended sentence. Bing v. State, 23 Ark. App. 19, 740 S.W.2d 156 (1987).

Dale v. State, 55 Ark. App. at 191, 935 S.W.2d at 278.

Appellant's citation to Slaughter v. State, 69 Ark. App. 65, 12 S.W.3d 240 (2000), and to Richards v. State, 309 Ark. 133, 827 S.W.2d 155 (1992), are unpersuasive. In Slaughter, our court decided that, in considering the verdict form, the trial judge erroneously concluded that the recommended sentence of no jail time with a "0" on the form was not within statutory range, which in Slaughter's case "shall not exceed six years." Also on the verdict form was an alternative recommendation of a term of supervised probation, which the trial judge declined to consider. We held that "the trial court was certainly authorized, although not obligated, to consider the recommended alternative sentence pursuant to Arkansas Code Annotated section 16-97-101(4)." See Slaughter v. State, 69 Ark. App. at 73, 12 S.W.3d at 244. This statement of the law supports the trial court's action in the present appeal. In Richards, the jury rendered a sentence of forty years and $25,000 fine within statutory range, but the trial judge increased the term of imprisonment and reduced the fine. The trial judge in Richards clearly exceeded his authority where there was no discretion to exercise.

In the present appeal, we find nothing to indicate an abuse of the trial court's discretion to disregard the recommended suspension. Thus, we affirm.

Griffen and Neal, JJ., agree.

1 The jury verdict sentenced appellant to a $1000 fine on each of the three breaking-or-entering convictions. The trial judge entered convictions on the breaking or entering charges, which arose out of appellant entering three different places to take the items for which he was convicted of theft. However, the trial judge declined to assess the $1000 per conviction fine. Appellant does not appeal those convictions.