Throneberry v. State
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Cite as 2009 Ark. 507
SUPREME COURT OF ARKANSAS
No.
ANNE THRONEBERRY,
CR09-139
Opinion Delivered October 22, 2009
APPELLANT,
VS.
STATE OF ARKANSAS.
APPELLEE,
AN APPEAL FROM THE CIRCUIT
COURT OF VAN BUREN COUNTY,
ARKANSAS, NOS. CR 2004-35, CR
2004-120, HONORABLE DAVID
REYNOLDS, CIRCUIT JUDGE
AFFIRMED.
ELANA CUNNINGHAM WILLS, Associate Justice
Appellant Anne Throneberry brings this appeal challenging the circuit court’s decision
to run her three sentences of imprisonment consecutively, rather than concurrently, after the
court of appeals remanded her original appeal for resentencing. Throneberry v. State, 102 Ark.
App. 17, 279 S.W.3d 489 (2008) (Throneberry I). The court of appeals certified the instant
appeal to this court in order to address the issue of whether a trial court abuses its discretion
by refusing to disclose its reasoning for declining to follow a jury’s recommendation of
concurrent sentencing and instead ordering that the sentences be served consecutively. We
affirm.
Throneberry was charged with capital murder, kidnapping, and hindering
apprehension for her role in the 2004 death of her husband, Theodore “Ted” Throneberry.
Two other individuals, Mark Holsombach and William Frazier, were also charged with Ted
Throneberry’s murder. Holsombach was convicted of capital murder, attempted capital
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murder, and kidnapping and was sentenced to life imprisonment without parole, twenty-five
years’ imprisonment with an enhancement of ten years for the use of a firearm, and thirty
years, respectively. This court affirmed his conviction and sentences. Holsombach v. State, 368
Ark. 415, 246 S.W.3d 871 (2007). According to the court of appeals in Throneberry I, Frazier
pled guilty “to crimes that are not specified in the record.” Throneberry, 102 Ark. App. at 19
n.2, 279 S.W.3d at 491 n.2.
Anne Throneberry was tried by a Van Buren County jury and convicted of
manslaughter, kidnapping, and hindering apprehension. The jury recommended sentences
of three years’ imprisonment for manslaughter, ten years for kidnapping, and fifteen years for
hindering apprehension, with those sentences to be run concurrently. At the original
sentencing hearing, however, the circuit court rendered the following decision:
The question before the court now is whether to accept the recommendation
that the jury has presented. Having heard the testimony of this case and the
testimony of the two other cases, having the benefit of that information that
the jury did not have, I am going to sentence the defendant as recommended
to three years in the Department of Correction for manslaughter, ten years in
the Department of Correction on the charge of kidnapping, and fifteen years
in the Department of Correction for hindering apprehension; however, I am
not going to accept the recommendation regarding whether these sentences
should be concurrent or consecutive. These sentences will be served
consecutively.
After the court pronounced the sentence, Throneberry’s attorney, Frank Shaw, asked
the court for more specific findings regarding why the court decided to run the sentences
consecutively, rather than concurrently, as recommended by the jury. The following
colloquy then ensued:
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THE COURT:
I will state again what I did before. I have had the
benefit of Mr. Holsombach’s full trial, I have had the
benefit of listening to the testimony that was presented or
the plea that was presented in William Frazier’s trial, and
the testimony that was presented in this trial. That is the
basis of my decision.
MR. SHAW:
I would submit to the court that it is improper to
consider things in this trial that were not part of this trial.
Had this been tried to a different court, different judge,
which it could have been since it was severed, those
factors would not have come into play, and I think the
court should reconsider its decision to run these
consecutively, and I’m asking the court to reconsider that
and follow the jury’s recommendation. I realize it is
within the court’s province to decide between
consecutive. I believe concurrent is what the jury
recommended, and absent a showing of some type based
on what was heard here, I think the court should be
bound by those recommendations or at least follow them.
THE COURT:
Your motion is denied.
Throneberry appealed to the court of appeals, arguing that the circuit court abused its
discretion by overruling the jury’s recommendation that her sentences be run concurrently
and by running them consecutively instead. The court of appeals agreed, holding that the
circuit court abused its discretion when, in making its decision to run her sentences
consecutively, it considered evidence that was never introduced against her at trial.
Throneberry I, 102 Ark. App. at 22, 279 S.W.3d at 493. The court of appeals concluded as
follows:
[T]he record of a co-defendant’s case cannot be considered at the sentencing
phase of a defendant’s separate trial if the co-defendant’s record has not been
introduced into evidence.
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The records of Throneberry’s co-defendants were improper factors for
consideration at Throneberry’s sentencing, and the trial judge’s judicial notice
of those records, which was the basis of his decision to run the sentences
consecutively, constituted an abuse of his discretion to sentence Throneberry
to consecutive or concurrent sentences. We reverse and remand for a
re-sentencing hearing without consideration of these factors.
Id. at 22, 279 S.W.3d at 493.1
After the court of appeals’ remand, Throneberry filed a “motion for discovery of
sentencing factors” in circuit court on September 22, 2008. In the motion, she sought
“discovery from the court as to what factors the court will rely on [in] making the
consecutive-concurrent decision and from the State on what factors it will urge to be
considered.” Throneberry relied on “[the court of appeals’ decision in] Throneberry, federal
and state constitutional rights of due process and confrontation, and Rule 17 of the Arkansas
Rules of Criminal Procedure.” The circuit court held a resentencing hearing on October 27,
2008, at which time it denied Throneberry’s discovery motion. The court said that the court
of appeals had
made it clear what I am not supposed to consider, and that is, I’m not supposed
to consider any testimony and evidence received on trials of Mr. Frazier and
Mr. [Holsombach]. I will tell you that I will follow the law as given to me by
the appellate court, and I will not consider the testimony of those two other
cases; however, I will consider the testimony that was in this case. That’s all
I can tell you.
Throneberry asked whether the court was “regarding any particular bit of testimony
that’s particularly persuasive,” and the court replied, “I don’t think you can just pick and
1
This court denied the State’s petition for review.
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choose little bits of the testimony. I think that you have to take the testimony as a whole.”
The State then interjected that it did not believe that the court had to specify what facts it was
relying on. Throneberry disagreed, noting that she had been charged with capital murder but
convicted of manslaughter, which indicated that the jury “thoroughly rejected some of the
alleged facts” that the State had adduced at trial. She went on to urge that the jury’s rejection
of the most serious charge, coupled with the fact that the jury imposed the minimum
sentences for both manslaughter and kidnapping and recommended that they run
concurrently, clearly spoke to “what the community here wanted for her.” The court then
ruled as follows:
I’m looking at the opinion of the court of appeals written by Judge Bird, and
he sets out what the law is. Multiple sentences of imprisonment imposed on
a defendant convicted of more than one offense shall run concurrently unless,
upon the recommendation of the jury or the court’s own motion, the court
orders the sentences to run consecutively. The court is not bound by the jury’s
recommendation and is not required to explain its reasons for running
sentences consecutively. Unfortunately, I did explain the reason that I gave at
that time, and they determined that that was an abuse of discretion. So I told
you that I will strike from my consideration on the evidence I heard in the
[Holsombach] and the Frazier case. In relying on the testimony in this case,
I’m going to find that the sentences be consecutive as previously stated, or as
previously ordered, but not for that same reason.
When counsel asked the court if it would “share . . . any specifics on those reasons,” the court
replied, “No.”
On appeal, Throneberry phrases the question presented as whether she “had a right
to know the specific evidence on which the judge was relying to supersede the jury’s
recommendations.” She urges that the circuit court’s refusal to disclose the evidence on
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which it relied “violates the spirit of the court of appeals’ opinion ordering [the circuit court]
not to consider matters outside the Throneberry record.” Throneberry also raises an argument
concerning her constitutional right to this information, relying on “the right to notice and
an opportunity to be heard” under the Fifth and Fourteenth Amendments and article 2, § 8
of the Arkansas Constitution.
The statute governing sentences for multiple convictions, Arkansas Code Annotated
section 5-4-403(a) (Repl. 2006), 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, upon recommendation of the jury or the court’s own
motion, the court orders the sentences to run consecutively.
The statute makes it plain that the court “is not bound by a recommendation of the jury
concerning a sentencing option under this section.” Ark. Code Ann. § 5-4-403(d) (Repl.
2006).
It is well established that the question of whether sentences should run consecutively
or concurrently lies solely within the province of the trial court. Pyle v. State, 340 Ark. 53,
8 S.W.3d 491 (2000); Brown v. State, 326 Ark. 56, 931 S.W.2d 80 (1996). The exercise of that
discretion will not be altered on appeal unless it is clearly shown to have been abused. Patton
v. State, 281 Ark. 36, 660 S.W.2d 939 (1983). The appellant assumes a heavy burden of
demonstrating that the trial judge failed to give due consideration to the exercise of his
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discretion in the matter of the consecutive sentences. Pyle, supra; Smallwood v. State, 326 Ark.
813, 935 S.W.2d 5303 (1996).
Although Throneberry acknowledges this burden, she urges that the circuit court here
abused its discretion when it “rel[ied] on unspecified information against this defendant . . .
[against] which she had no ability to argue . . . because she did not know what it was.” She
also maintains that the trial court’s refusal to disclose the evidence on which it relied “violates
the spirit of the court of appeals’ opinion ordering it not to consider matters outside the
Throneberry record.”
Her arguments, however, fail to recognize that this court has repeatedly held that there
is “no rule that requires a trial judge to set forth in writing that he has exercised discretion.”
Urquhart v. State, 273 Ark. 486, 489, 621 S.W.2d 218, 220 (1981), nor is there a requirement
that the court explain its reason for running sentences consecutively. Pyle v. State, 340 Ark.
at 61, 8 S.W.3d at 496; Smallwood, supra; Moore v. State, 299 Ark. 532, 773 S.W.2d 843 (1989)
(no abuse of discretion where the trial court gave no reason for running sentences
consecutively other than “the evidence”). Here, as the State points out, the trial court
expressly stated that it was relying solely on the testimony presented in Throneberry’s case and
was not considering the evidence from the other two trials. Absent any proof—or even any
allegation—that the trial court was not being truthful, we cannot say that the court abused
its discretion in ordering Throneberry’s sentences to run consecutively.
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We note several cases in which this court found an abuse of discretion—or a failure
to exercise discretion—in a trial court’s order for sentences to run consecutively; however,
these cases are easily distinguishable from the present appeal. For example, in Acklin v. State,
270 Ark. 879, 606 S.W.2d 594 (1980), this court reversed a circuit court where it appeared
that the court seemed to have imposed consecutive sentences “either because the defendant
asked for a jury trial without any defense or because it was the court’s rule to direct that jury
sentences run consecutively.” Acklin, 270 Ark. at 880, 606 S.W.2d at 595. The court had
commented that, if a defendant with no real defense were to “come over here and waste my
time, the jury’s time and the taxpayer’s money, it may very well cost you something.” The
court also stated that was its “customary rule to run consecutive sentences imposed by jurors
. . . [because] it’s just my judgment in the matter that generally that’s what the jury intends
to do.” Id. This court “commend[ed] the trial judge for his outspoken candor” and said that
it would “certainly condemn a resort to silence as a deliberate means of concealing an
improper practice.” Id. The error in the circuit court’s ruling in Acklin, however, was that
it appeared there was no exercise of discretion at all. Id.
Similarly, in Wing v. State, 286 Ark. 494, 696 S.W.2d 31 (1985), this court held that
the circuit court failed to exercise its discretion at all when it made the following comments
upon ordering the defendant’s sentences to run consecutively:
[M]y practice has been, if it is left to me in the first instance, I try to use
my own judgment both as to guilt or innocence, and also as to punishment. .
. . But when a case is submitted. . . to a jury, then I think they have the right
and the prerogative. . . to view the case in the manner in which they see it.
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Now, I feel it is somewhat presumptuous for me to interfere with their
judgment as long as it is within the guidelines of the law. I think I have no
choice. . . but to accept their verdict. . . and direct they run consecutively.
Wing, 286 Ark. at 496, 696 S.W.2d at 312.
In another case styled Wing v. State, 14 Ark. App. 190, 686 S.W.2d 452 (1985), the
circuit judge stated that he felt it was “somewhat presumptuous of me to go against a jury
verdict. I have never done that except in a rare case where it’s clearly out of line.” Wing, 14
Ark. App. at 192, 686 S.W.2d at 454. The court of appeals held that the judge had attempted
to implement what he perceived the jury wanted, rather than exercising his own discretion.
Accordingly, the court of appeals reversed and remanded for resentencing. Id. at 193, 686
S.W.2d at 454.
Finally, in Lawhon v. State, 327 Ark. 674, 940 S.W.2d 475 (1997), this court ordered
resentencing where the circuit judge stated that, because he had not presided over the original
trial and sentencing, he felt that he “must ratify the trial court’s decision [to run the sentences
consecutive], [because he] was in a much better position to have made that determination.”
Lawhon, 327 Ark. at 676, 940 S.W.2d at 476. This court held that the circuit court “clearly
did not exercise any discretion in his decision to run the sentences consecutively. Rather, he
ratified the decision of the trial judge, whose own exercise of discretion . . . is somewhat in
doubt.”2 Id. at 676-77, 940 S.W.2d at 476.
2
The first judge had apparently adjourned the proceedings at the time he announced
that the defendant’s sentences would run consecutively, and there was nothing in the record
from the sentencing in open court about how the sentences would be served.
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In the instant case, as distinguishable from the above cases, the circuit court stated on
the record that it had been told by the court of appeals that it could only consider the
evidence from Throneberry’s trial in making its sentencing decisions, and that was what it was
going to do. On appeal, the only reason Throneberry advances to argue that the judge abused
his discretion is that the court did not state its reasons for consecutive sentences. We have
held, however, that this argument, standing alone, is not sufficient to meet the appellant’s
heavy burden. See Pyle, supra.
Throneberry has also raised a brief argument concerning constitutional due-process
rights, citing the Fifth and Fourteenth Amendments and article 2, § 8 of the Arkansas
Constitution. However, she fails to present any analysis under these rules, and without
further development, we decline to address the merits of her arguments. See White v. State,
367 Ark. 595, 242 S.W.3d 240 (2006); Vidos v. State, 367 Ark. 296, 239 S.W.3d 467 (2006);
Hathcock v. State, 357 Ark. 563, 182 S.W.3d 152 (2004).
Affirmed.
IMBER, J., not participating.
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