Acklin v. State, CR

• Decision Date: 27 October 1980
• Docket Number: No. CR,CR
• Citation: Acklin v. State, 270 Ark. 879, 606 S.W.2d 594 (Ark. 1980)
• Parties: John W. ACKLIN a/k/a Yahya Zakariya, Appellant, v. STATE of Arkansas, Appellee. 80-171.
• Court: Arkansas Supreme Court

Page 594

606 S.W.2d 594

270 Ark. 879

John W. ACKLIN a/k/a Yahya Zakariya, Appellant, v. STATE of Arkansas, Appellee.

No. CR 80-171.

Supreme Court of Arkansas.

Oct. 27, 1980.

E. Alvin Schay, Deputy State Appellate Defender by Jackson Jones, Deputy State Appellate Defender, Little Rock, for appellant.

Steve Clark, Atty. Gen., by C. R. McNair, III, Asst. Atty. Gen., Little Rock, for appellee.

GEORGE ROSE SMITH, Justice.

The only question here is whether the trial judge actually exercised his discretionary authority in directing that three three-year sentences imposed by the jury should run consecutively rather than concurrently. We are unable to say there was an exercise of discretion and therefore remand the case for resentencing.

Acklin pleaded not guilty to three charges of forgery, but on the witness stand he freely admitted his guilt and attributed the forgeries to a number of things, including his loss of a job, his separation and divorce, and his inability to support his five children. The jury verdicts of three years for each offense were near the minimum, the range of punishment for a Class C felony being two to ten years. Ark.Stat.Ann. § 41-901(c) (Repl.1977). The Code also provides that multiple sentences shall run concurrently unless the court orders them to run consecutively. § 41-903(3)(a).

How two or more sentences should run lies solely within the province of the trial court. Graham v. State, 254 Ark. 741, 495 S.W.2d 864 (1973). In sentencing, however, there must be an exercise of judgment by the trial judge, not a mechanical imposition of the same sentence in every case. United States v. Derrick, 519 F.2d 1 (6th Cir., 1975); Woosley v. United States, 478 F.2d 139 (8th Cir., 1973). We have disapproved, as an implied threat, a trial judge's uniform practice of telling the accused that if he is not guilty he should plead not guilty, but if the jury imposes separate sentences the judge will "stack" them. Orman v. Bishop, 243 Ark. 609, 420 S.W.2d 908 (1967).

After the verdicts were announced in the case at bar there was an extended discussion between the court and counsel, which we quote in part. In response to defense counsel's request that the sentences run concurrently, because the defendant had five children to support, the court replied:

I'm mindful of that, Mr. Holder. And I'm also mindful that ... he has not been in trouble with the law since 1967. However, I am also mindful that Mr. Zakariya has had no defense to this case and has put the county to substantial expense to try this without a defense, which he is entitled to. It's my feeling about it that if you want to see the hole card and go to a jury to see what they will do, then you ought to be willing to run the risk.

There's no defense to this case. There has not been one presented, and it's been an exercise that Mr. Zakariya elected to see what would happen, I guess.... It's expensive to see and to look and to try the system. So it's my judgment that he should not be entitled to consideration.

He is not being penalized for exercising his right (to a jury trial). The truth of the matter is that ...