Brandon Thomas v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

BRANDON THOMAS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 04-918

MARCH 16, 2005

APPEAL FROM THE JEFFERSON

COUNTY CIRCUIT COURT

[NO. CR-2002-1258-5]

HONORABLE FRED D. DAVIS, III

JUDGE

AFFIRMED

John B. Robbins, Judge

Appellant Brandon Thomas was convicted in a jury trial of two counts of aggravated robbery and one count of Class C felony theft of property. The jury sentenced Mr. Thomas to ten years in prison for each aggravated robbery conviction, and three years for the theft of property conviction. The trial court ordered the sentences to run consecutively for a total of twenty-three years in prison. Mr. Thomas now appeals, and his sole argument for reversal is that the trial court erred in ordering consecutive sentences. We affirm.

During the guilt phase of the trial, it was established that on December 5, 2002, Mr. Thomas, who was then sixteen years old, entered an Advance Auto Parts store with his cousin, Tyrone Fels. Both Mr. Thomas and Mr. Fels were brandishing handguns. During a robbery of the store, Mr. Fels fatally shot Lonnie Brown. As to Mr. Thomas's participation, Mr. Fels testified:

My cousin knew there was getting ready to be a robbery at Advance Auto Parts. No threats were made to him. He was going voluntarily. He was going to share in the money that I got. It was been planned all summer long ever since, like, July. It had been talked about for months. My cousin was aware that it had been talked about for months. It was okay with him.

Mr. Thomas testified on his own behalf, and indicated that he was acting under duress. He stated that he was in the back seat of a car being driven by Raphael Brisker, who instructed Mr. Thomas to give him directions to Mr. Fels's house. Mr. Thomas complied, but when they arrived Mr. Fels was not at home. According to Mr. Thomas, he then tried to exit the vehicle, but his door would not open when he pulled the latch.

Mr. Thomas testified that Mr. Brisker proceeded to another location and found Mr. Fels, and Mr. Fels got into the car. Then Mr. Brisker drove toward Advance Auto Parts and started giving directions on how to execute the robbery. Mr. Thomas testified that he asked to be let out of the car so he could walk home, but that Mr. Brisker would not let him out. According to Mr. Thomas, Mr. Brisker pointed a gun at his face and threatened to shoot him, his mother, and his two sisters if he refused to participate in the robbery. Mr. Thomas indicated that Mr. Brisker gave him a gun, and that he entered the store with Mr. Fels only because he feared for the safety of his family.

Mr. Thomas testified that when they went into the store, Mr. Fels grabbed the elbow of Delois Lee, and then instructed him to bring Ms. Lee to the back of the store. Mr. Thomas complied, and when they got there they found Lonnie Brown sitting down counting money from a cashier's drawer. Mr. Fels asked Mr. Brown to open the safe, and Mr. Brown said that he did not know the code. After firing a shot into the floor, Mr. Fels again asked Mr. Brown to open the safe, and when he refused Mr. Fels shot him in the arm. Mr. Thomas testified that he told Mr. Fels not to shoot Mr. Brown again, but that Mr. Fels shot him in the body and then in the head. Mr. Fels then grabbed the cashier's drawer, pointed the gun at Ms. Lee's face, and left with the money after Mr. Thomas convinced him not to shoot her.

Mr. Thomas testified that they ran behind a house, where Mr. Fels put the money in his pocket. Then they ran behind a church, and Mr. Fels put some of the money in Mr. Thomas's pocket. Mr. Thomas testified that they split up, and that a minute later the police arrived. Mr. Thomas tried to run, but the police soon caught him.

Mr. Brisker contradicted Mr. Thomas's testimony that he threatened Mr. Thomas. He denied having any altercation with Mr. Thomas or pointing a gun at him.

After the jury found Mr. Thomas guilty of the aggravated robbery and theft charges, the trial proceeded to the penalty phase. During the penalty phase, the jury heard testimony from Mr. Brown's daughter and his widow about the grief caused by his death. The jury also heard testimony from Ms. Lee, who indicated that she had been adversely affected by the robberies and has been taking medication as a result.

Mr. Thomas's mother testified that she has two daughters and that Brandon has been a big help to her and is a kind, mannerly young man. She maintained that he is a good kid and has never been in trouble before, but got caught in the wrong place at the wrong time. Mr. Thomas also put on other witnesses who attested to his good character.

At the conclusion of the testimony in the penalty phase, the jury was instructed that the sentencing range for aggravated robbery was ten to forty years, or life, and that the sentencing range for the theft conviction was three to ten years. In closing arguments, the State asked for forty years due to the seriousness of the crimes. The defense did not ask for a specific term of years, but asked the jury to consider that Mr. Thomas had never been in trouble and was a good kid. After deliberating, the jury returned the minimum sentences for each of Mr. Thomas's convictions.

The trial court held a separate sentencing hearing for the purpose of deciding whether the sentences would run concurrently or consecutively. The State contended that the sentences should be consecutive on the basis that there were two victims, and that one of them died. The State argued, "I think that the minimum punishment is just not adequate when someone dies and another person has a gun pointed at their head and threatened to be killed." Mr. Thomas asked that the sentences run concurrently, asserting that "the jury spoke" by giving minimum sentences.

After hearing arguments from counsel, the trial court stated that it suspected that the jury's sentences were based on sympathy for Mr. Thomas's youth. The trial court then stated:

But the Court, having told the jury not to base its decision based upon sympathy, can't very well turn around and base its decision based upon sympathy. I have to follow what the law is, and the law is that a person Mr. Thomas's age is responsible for his actions. I have to look at [how] what we do here this afternoon would affect future people faced with similar decisions to make and although there has not necessarily been any conclusive proof that, for instance, strong and harsh punishment is a deterrent, it is also, I think, disingenuous to argue that it is not. We have always said, gentlemen, in our private conversations and I think at least one of you may, maybe you, [counsel for appellant], made the argument to the jury, basically, let the punishment fit the crime, and I'm paraphrasing, but that's pretty much what it boiled down to.

Mr. Thomas was permitted to speak on his behalf, and he apologized and stated that he knew he could have done more instead of standing by and letting a man get shot. Mr. Thomas asked Mr. Brown's family for forgiveness. The trial court responded that "it would make this job wonderful" if it could sign an order "and everything would be put back like it was." The trial court then stated, "Unfortunately, that's not the case," and sentenced Mr. Thomas to consecutive sentences totaling twenty-three years in prison.

Mr. Thomas argues on appeal that the trial court erred in ordering his sentences to run consecutively. Arkansas Code Annotated section 5-4-403(a) (Supp. 2003) provides that when multiple sentences of imprisonment are imposed on a defendant convicted of more than one offense, the sentences shall run concurrently unless, upon recommendation of the jury or on the trial court's own motion, the trial court orders the sentences to run consecutively. Mr. Thomas cites Acklin v. State, 270 Ark. 879, 606 S.W.2d 594 (1980), where the supreme court held that in sentencing a defendant, there must be an exercise of judgment by the trial court, and not a mechanical imposition of the same sentence in every case. In that case, the supreme court reversed and remanded because it appeared that the trial court did not exercise discretion in imposing consecutive sentences.

Mr. Thomas concedes that in imposing consecutive sentences in this case the trial court did not employ a mechanical rule, but nonetheless argues that the trial court failed to properly exercise its discretion. Specifically, Mr. Thomas contends that the trial court's focus on the deterrence aspect of sentencing impermissibly denied him of the individual consideration to which he was entitled. Mr. Thomas asserts that the trial court considered his perception of the community's interests to the complete exclusion of the impact on Mr. Thomas as an individual. Mr. Thomas further argues that the trial court failed to consider his young age and bonds with his family, and the legitimate penal interest of his rehabilitation. Due to these errors by the trial court, Mr. Thomas asks that we reverse and remand for the trial court to revisit the issue of whether to impose consecutive sentencing.

The question of whether multiple sentences will be served concurrently or consecutively is a decision left to the sound discretion of the trial court, and the exercise of that discretion will not be altered on appeal unless it is clearly shown to have been abused. Kellogg v. State, 37 Ark. App. 162, 827 S.W.2d 166 (1992). The appellant assumes a heavy burden of demonstrating that the trial court failed to give due consideration to the exercise of its discretion in the matter of the consecutive sentences. Teague v. State, 328 Ark. 724, 946 S.W.2d 670 (1997). We will, however, remand for resentencing when it is apparent that the trial court did not exercise its discretion. Id. In Davidson v. State, 76 Ark. App. 464, 68 S.W.3d 331 (2002), we held that when the trial judge has a standard manner of sentencing or merely implements whatever the jury wants, the appellate court steps in and remands for resentencing.

In the case at bar, there was no recommendation given by the jury as to whether to run the sentences concurrently or consecutively, and the trial court did not mechanically implement a standard manner of sentencing. There is nothing in the record to demonstrate that the trial court did not exercise its discretion. The trial court scheduled a separate hearing, considered arguments from counsel and Mr. Thomas's objection to consecutive sentences, and then gave an explanation as to why it ran the sentences consecutively. Contrary to Mr. Thomas's argument, there is no indication that the trial court failed to give him individual consideration in reaching its decision. The trial court stated that Mr. Thomas was responsible for his actions and that the punishment should fit the crime. In our view, the record clearly demonstrates that the trial court exercised its discretion in accordance with the law. Consequently, we hold that Mr. Thomas failed to meet his heavy burden of showing otherwise.

Affirmed.

Pittman, C.J., and Neal, J., agree.