Maldonado v. State
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Cite as 2009 Ark. 432
SUPREME COURT OF ARKANSAS
No. CR08-1455
ROBERT MALDONADO
VS.
STATE OF ARKANSAS
Opinion Delivered September 24,
2009
APPELLANT
APPEAL FROM PULASKI COUNTY
CIRCUIT COURT,
NO. CR 2007-603,
HON. BARRY SIMS, JUDGE,
APPELLEE
AFFIRMED
JIM GUNTER, Associate Justice
Appellant Robert Maldonado appeals from the judgment and commitment order
sentencing him to a total of eighty years in prison for violating Ark. Code Ann. § 5-37-301,
the Arkansas Hot Check Law, after his probation was revoked by the Pulaski County Circuit
Court. We accepted this case on certification from the court of appeals pursuant to Arkansas
Supreme Court Rule 1-2(d)(2009). At issue is whether the circuit court had authority to
sentence appellant to consecutive terms of imprisonment after revocation. We affirm.
On February 1, 2008, appellant pled guilty to eight violations of the Arkansas Hot
Check Law. Five counts were class B felonies, two counts were class C felonies, and one
count was a class A misdemeanor. Appellant was placed on probation for ninety-six months
for each felony count. He was also ordered to complete 100 hours of community service
within one year and pay $127,103.58 in restitution and a $100 fine. A special condition of his
probation was that he could not write or pass checks.
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Cite as 2009 Ark. 432
On June 19, 2008, the State filed a petition to revoke appellant’s probation, alleging
that he had violated the imposed terms and conditions by committing new criminal offenses,
failing to report to his probation officer, and failing to pay his monthly supervision fee. The
State amended its petition on September 2, 2008, adding that appellant had written personal
checks in violation of the special condition of his probation and that he had failed to report
an arrest to his probation officer.
Following a revocation hearing on September 9, 2008, the circuit court sentenced
appellant to twenty years’ imprisonment each on four hot-check counts to run consecutively
and ten years’ imprisonment each on the other felony hot-check counts to run concurrently.
Appellant filed a timely pro se notice of appeal. On October 1, 2008, he filed a Motion for
New Trial or for Correction of Illegal Sentence asserting that the circuit court lacked
authority to order consecutive sentences upon revocation because his probationary sentence
ran concurrently. Following a hearing, the circuit court denied the motion. Appellant filed
a timely amended notice of appeal from the original judgment and the denial of his motion.1
Appellant’s sole point on appeal is that the circuit court erred in giving him
consecutive sentences upon revocation after having made his probation sentences concurrent
at the original sentencing. Sentencing is entirely a matter of statute in Arkansas, and no
Although Arkansas Rule of Criminal Procedure 37 provides a procedure for postconviction relief on the basis of illegal sentence, an allegation of illegal sentence may be
brought on direct appeal. See Ark. R. Crim. P. 33.3 (2009); see also Donaldson v. State, 370
Ark. 3, 257 S.W.3d 74 (2007) (stating that an appellant may challenge an illegal sentence
for the first time on appeal, even if he did not raise the argument below).
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Cite as 2009 Ark. 432
defendant convicted of an offense may be sentenced other than as provided by statute. Harness
v. State, 352 Ark. 335, 339, 101 S.W.3d 235, 238 (2003). Our law provides that
[w]hen multiple sentences of imprisonment are imposed on a defendant convicted of
more than one (1) offense, including an offense for which a previous suspension or
probation has been revoked, the sentences shall run concurrently unless the court
orders the sentences to run consecutively.
Ark. Code Ann. § 5-4-403(a) (Repl. 2006). The decision to impose consecutive or
concurrent sentences lies solely within the province of the trial judge, and the appellant
assumes a heavy burden of showing that the trial judge failed to give due consideration in the
exercise of that discretion. Smith v. State, 354 Ark. 226, 248, 118 S.W.3d 542, 555 (2003).
Probation, however, always runs concurrently. “Whether imposed at the same time or a
different time, multiple periods of suspension or probation run concurrently.” Ark. Code
Ann. § 5-4-307 (Repl. 2006). Upon revocation, Ark. Code Ann. § 5-4-309(f)(1)(A) provides
that
the court may enter a judgment of conviction and may impose any sentence on the
defendant that might have been imposed originally for the offense of which he or she
was found guilty.
Appellant contends that because § 5-4-309(f)(1)(A) uses the singular “offense” instead
of the plural “offenses,” it does not explicitly authorize making sentences consecutive upon
revocation. He claims that § 5-4-309(f)(1)(A) is ambiguous and that the ambiguity should be
interpreted in his favor. As support for his proposition, appellant cites Hadley v. State, 322 Ark.
472, 910 S.W.2d 675 (1995); Nelson v. State, 284 Ark. 156, 680 S.W.2d 91 (1984); and
Cashion v. State, 265 Ark. 677, 580 S.W.2d 470 (1979). These cases all stand for the
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proposition that once a sentence has been placed into execution, the trial court is without
jurisdiction to modify it. Hadley, 322 Ark. at 476–77, 910 S.W.2d at 678; Nelson, 284 Ark.
at 157, 680 S.W.2d at 92; Cashion, 265 Ark. at 677–78, 580 S.W.2d at 471.
The cases cited by appellant predate the passage of Act 1569 of 1999, the enactment
of which now allows for modification of an original sentence upon revocation of suspended
sentence or probation. Codified at Ark. Code Ann. § 5-4-301(d)(2)(A) (Supp. 2009), the
statute now provides that
(2) The entry of a judgment of conviction does not preclude:
(A) The modification of the original order suspending the imposition of sentence on
a defendant or placing a defendant on probation following a revocation hearing held
pursuant to § 5-4-310[.]
Pursuant to the plain language of Ark. Code Ann. § 5-4-301(d)(2) and Ark. Code
Ann. § 5-4-309(f)(1)(A), the trial court was authorized following revocation to modify the
original order and impose any sentence that appellant originally could have been given.
Appellant was originally sentenced to probation on multiple counts, served concurrently by
statute. The trial court revoked appellant’s probation on all counts. The sentences that the trial
court ordered on each count after revocation were within the parameters authorized by
statute for appellant’s multiple felony convictions. See Ark. Code Ann. § 5-4-401 (Repl.
2006). Furthermore, the trial court was permitted, based on Ark. Code Ann. § 5-4-403(a),
to run multiple sentences of imprisonment for multiple offenses consecutively, including those
where probation had been revoked. Because the trial court properly applied the law, we
affirm.
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Affirmed.
IMBER, J., not participating.
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