Ark. Code Ann. § 5-4-403 (2020)

Research References

ALR.

Construction and Application of U.S.S.G. § 5G1.3(b), Requiring Federal Sentence to Run Concurrently to Undischarged State Sentence When State Sentence Has Been Fully Taken into Account in Determining Offense Level for Federal Offense — Particular Events Preceding Federal Sentence and Sentencing Credit. 32 A.L.R. Fed. 2d 178.

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Criminal Law, 24 U. Ark. Little Rock L. Rev. 429.

Case Notes

Construction.

Subdivision (c)(1) of this section pertains to the power of the court to order consecutive as opposed to concurrent sentences; it is silent on the question of a felony sentence being completed prior to a concurrent misdemeanor sentence. Ricks v. State, 316 Ark. 601, 873 S.W.2d 808 (1994).

This section says absolutely nothing about the subsequent sentence being discharged by the completion of the earlier sentence when the subsequent sentence extends beyond the earlier sentence; this section takes as a given the probability that a misdemeanor sentence will be shorter in duration than a felony sentence and thus contemplates that the former's terminal date will fall within the latter's actual span. Ricks v. State, 316 Ark. 601, 873 S.W.2d 808 (1994).

Where defendant's suspended sentence had already been revoked when he was sentenced on the misdemeanor theft-by-receiving charge, there was nothing inconsistent with the intent of this section in the trial court's decision to order the defendant to be remanded to the custody of the local authorities to serve the rest of his misdemeanor sentence upon the completion of his felony term. Ricks v. State, 316 Ark. 601, 873 S.W.2d 808 (1994).

Appellate Review.

Defendant did not preserve the issue of consecutive sentences for appellate review where defendant failed to make an objection after the trial court announced its ruling on his sentences. Mixon v. State, 330 Ark. 171, 954 S.W.2d 214 (1997).

Where (1) petitioner pleaded guilty to delivery of a controlled substance, and possession of a controlled substance in separate cases on the same date in 1991, (2) resentencing on the “suspended” sentence for “delivery of a controlled substance” was required because that sentence was illegal, and (3) the commitment orders did not reveal whether the trial court intended the sentences to be served consecutively or concurrently, petitioner was entitled to a reduction, as to the delivery offense, for time served on the possession conviction. Taylor v. State, 354 Ark. 450, 125 S.W.3d 174 (2003).

Trial court had discretion to require defendant's sentences for two felony convictions to run consecutively with defendant's remaining sentence for a parole violation, and the sentence was not illegal; in addition, to the extent that defendant contended that the trial court abused its discretion, the matter was not properly preserved because defendant did not object to the trial court. Campea v. State, 87 Ark. App. 225, 189 S.W.3d 459 (2004).

Concurrent Sentences.

In the absence of an order to the contrary, subsequent sentences are to be served concurrently; therefore, where a judgment and commitment were silent as to whether the sentences were to be consecutive or concurrent to sentences that the defendant was already serving time for, the trial court had no authority to amend its judgment and commitment, after the sentences were put into execution, to order that the sentences be served consecutively. Glick v. State, 283 Ark. 412, 677 S.W.2d 844 (1984); Hadley v. State, 322 Ark. 472, 910 S.W.2d 675 (1995).

Where the defendant was convicted of a felony and a misdemeanor and ordered to serve consecutive sentences, the misdemeanor sentence was void because the court lacked the authority to impose it under subdivision (c)(1) of this section; therefore, the defendant was entitled to a writ of habeas corpus after he had served the sentence on the felony conviction. Howard v. State, 289 Ark. 587, 715 S.W.2d 440 (1986).

In a case where defendant was convicted of misdemeanor violating a protection order and felony stalking, a trial court erred by ordering that the sentences were to be served consecutively; pursuant to this section, the sentences should have run concurrently. Brawner v. State, 2013 Ark. App. 413, 428 S.W.3d 600 (2013).

Defendant's sentence for second-degree assault against a family member was modified to 90 days, to be served concurrently with his 15-year sentence for the burglary, because the trial court erred in sentencing him to one year of imprisonment since the sentence could not exceed 90 days. Davis v. State, 2015 Ark. App. 234, 459 S.W.3d 821 (2015).

Defendant's sentences were not illegal where the applicable order did not state that the sentences were to run consecutively, and thus, under this section and § 5-4-307, the sentences ran concurrently. McElroy v. State, 2018 Ark. App. 342, 553 S.W.3d 182 (2018).

Consecutive Sentences.

Where defendant had three prior felony convictions and was convicted of four separate counts, a sentence of four consecutive life sentences was neither an abuse of discretion nor cruel and unusual punishment. Duncan v. State, 267 Ark. 41, 588 S.W.2d 432 (1979).

Consecutive sentences held proper. Edwards v. State, 300 Ark. 4, 775 S.W.2d 900 (1989).

Sentence of two fifty-year terms, which the court ordered to run consecutively, upheld. Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995).

Under this section, the trial court clearly has authority to order that sentences be served consecutively. Love v. State, 324 Ark. 526, 922 S.W.2d 701 (1996).

Where the circuit judge sentenced the defendant to consecutive rather than concurrent sentences, and the defendant did not have an opportunity to object because the proceedings adjourned prior to the court's pronouncement, the case was remanded for resentencing. Lawhon v. State, 327 Ark. 674, 940 S.W.2d 475 (1997), appeal dismissed, 328 Ark. 335, 942 S.W.2d 864 (Ark. 1997).

Where defendant was prosecuted for violation of a minor in the first degree and not under the rape statute, the commission of both offenses prohibited sexual intercourse or deviate sexual activity; thus, under subsection (a) of this section, the trial court did not err in imposing consecutive sentences. Smith v. State, 354 Ark. 226, 118 S.W.3d 542 (2003).

Section 5-4-401(a)(1) authorized a sentence of ten to forty years or life in prison for a Class Y felony, which rape was considered to be, and this section allowed a court to impose consecutive sentences for multiple convictions; thus, defendant's sentence was not unduly harsh. Simmons v. State, 95 Ark. App. 114, 234 S.W.3d 321 (2006).

Upon the revocation of defendant's probation for eight violations of the Arkansas Hot Check Law, the trial court was authorized under §§ 5-4-301(d)(2) and 5-4-309(f)(1)(A) to modify the original order and impose multiple sentences of imprisonment to be served consecutively in accordance with subsection (a) of this section. The trial court did not err by sentencing defendant to twenty years in prison each on four hot-check counts to run consecutively and ten years in prison each on the other felony hot-check counts to run concurrently. Maldonado v. State, 2009 Ark. 432 (2009).

Pursuant to subsection (a) of this section, the circuit court did not abuse its discretion in ordering defendant's sentences to run consecutively where the trial court expressly stated that it was relying on the testimony presented in defendant's case and was not considering the evidence from the other two trials. Throneberry v. State, 2009 Ark. 507, 342 S.W.3d 269 (2009).

Trial court did not abuse its discretion by ordering defendant’s sentences for 20 counts of distributing, possessing, or viewing matter depicting sexually explicit conduct involving a child to run consecutively because there was no indication that the trial court failed to consider factors urged by the defense, each sentence was within the statutory range of punishment, and no exception applied. Steele v. State, 2014 Ark. App. 257, 434 S.W.3d 424 (2014).

Jury sentenced defendant to eight years and 20 years, respectively, for two second-degree murder convictions, to be served consecutively; the sentence was within the statutory sentencing range, even for a single count of second-degree murder, and no abuse of discretion was shown. Lewis v. State, 2014 Ark. App. 730, 451 S.W.3d 591 (2014).

Trial court is permitted, based on subsection (a) of this section, to order that multiple sentences of imprisonment for multiple offenses be run consecutively, including those where suspension had been revoked. Todd v. State, 2016 Ark. App. 204, 489 S.W.3d 207 (2016).

Any argument that the circuit court abused its discretion in ordering defendant's sentences to be served consecutively would be wholly frivolous because defendant pleaded guilty to the crimes of rape and attempted first-degree murder, and he requested the maximum sentence in open court. Jones v. State, 2017 Ark. 266 (2017).

Defendant's 10-year sentence for possession of a firearm by a felon was within the statutory range of punishment for a Class D felony committed by a defendant previously convicted of four or more felonies, and the circuit court's decision to run the sentence consecutively to defendant's other sentence was within the court's discretion. McNeely v. State, 2017 Ark. App. 483, 530 S.W.3d 876 (2017).

Even though the jury recommended concurrent sentences, there was no reversible error in the trial court's imposition of consecutive sentences for the terroristic acts convictions, to run consecutively to the first-degree murder life sentence, because the trial court was not bound by the jury's recommendation and the written order imposing consecutive sentences controlled over the trial court's oral ruling. Ellis v. State, 2019 Ark. 286, 585 S.W.3d 661 (2019).

Determination of Sentence.

The choice between concurrent and consecutive sentences is vested in the judge, not the jury; where the trial court attempted to implement what he perceived the jury wanted rather than to exercise his own discretion relative to the sentencing, the Supreme Court remanded for resentencing. Wing v. State, 14 Ark. App. 190, 686 S.W.2d 452 (1985).

The question of whether two separate sentences should run consecutively or concurrently lies solely within the province of the trial court. Abdullah v. State, 290 Ark. 537, 720 S.W.2d 902 (1986); Love v. State, 324 Ark. 526, 922 S.W.2d 701 (1996).

Trial court which had the discretion at the initial sentencing of imposing sentences concurrently or consecutively made them concurrent and, having done so, had no power to change them to consecutive sentences after execution had begun. Trial court cannot modify a valid sentence once execution has begun. Avants v. State, 293 Ark. 24, 732 S.W.2d 149 (1987).

Considering that the sentences imposed after defendant's trial for possession of cocaine, methamphetamine, and marijuana were within the statutory maximum and minimum and the trial judge contemplated whether to “stack” them or not, it was abundantly clear that the trial judge exercised discretion when sentencing, and the appellate court could not say that the trial court abused it in that exercise. Davidson v. State, 76 Ark. App. 464, 68 S.W.3d 331 (2002), cert. denied, Davidson v. Arkansas, 537 U.S. 820, 123 S. Ct. 98 (2002).

Trial court did not err in sentencing defendant after revoking his probation because defendant pleaded guilty to second-degree domestic battery, § 5-26-304, and third-degree domestic battery, § 5-26-305, and his sentences of ten and six years, respectively, were sentences that could have been originally imposed for the offenses of which he was found guilty. Jones v. State, 2012 Ark. App. 69, 388 S.W.3d 503 (2012).

Trial court could have reasonably concluded that defendant's commission of five new felonies warranted consecutive sentences, given that the sentences defendant had received on defendant's previous 12 felonies had apparently not served to deter defendant's criminal conduct. Turner v. State, 2012 Ark. App. 150, 391 S.W.3d 358 (2012).

Discretion of Court.

The trial judge did not improperly fail to exercise his discretion in sentencing the defendant and did not err in sentencing him to serve consecutive sentences where the jury recommended that the court sentence the defendant to serve consecutive sentences and the judge deferred to the jury's recommendation. Blagg v. State, 72 Ark. App. 32, 31 S.W.3d 872 (2000).

Trial court did not err in sustaining the State's objection to defendant's closing argument regarding the matter of consecutive sentences; the trial court had the discretion only to impose either consecutive or concurrent sentences pursuant to Ark. Code Ann. § 5-4-403(a), (d), and defense counsel's closing argument that suggested that defendant's multiple sentences automatically ran consecutively was an incorrect statement of the law. Smith v. State, 352 Ark. 92, 98 S.W.3d 433 (2003).

Merger of two capital murders was not required under § 5-1-110(d)(1), and where defendant waived a sentencing hearing, thereby giving the trial court sole sentencing authority under § 5-4-103(b)(4), the trial court had the authority to order defendant's sentences to run consecutively under § 5-4-403(a). Walker v. State, 353 Ark. 12, 110 S.W.3d 752 (2003).

Subsection (d) states that the court is not bound by the recommendations as to consecutive or concurrent sentencing options of the jury, the decision of whether to impose consecutive or concurrent sentences was solely within the province of the trial judge; where the jury did not make a recommendation as to whether the sentences should run consecutively or concurrently, the trial court did not abuse its discretion in denying defendant's motions for a mistrial. Smith v. State, 85 Ark. App. 475, 157 S.W.3d 566 (2004).

Imposition of consecutive sentences was not in violation of defendant's due process rights or the Eighth Amendment to the U.S. Constitution where the trial judge noted that the sentences imposed on each count were less than the maximum and that the approach was consistent with other jury sentences in the country; the trial judge clearly exercised discretion in accepting the jury's recommendation. Ford v. State, 99 Ark. App. 119, 257 S.W.3d 560 (2007).

Trial court's decision to permit the introduction of evidence relating to defendant's criminal history during the sentencing phase of his trial was consistent with the mandates of § 16-97-103; at sentencing, under § 5-4-401(a)(1), defendant was subjected to the normal ranges of Class A and Y felonies as opposed to the enhanced ranges designated for habitual offenders. Defendant actually received the minimum sentences allowed on two of his four convictions and less than the maximum on the other two and, under this section, his sentences were ordered to run concurrently rather than consecutively, as they could have; thus, defendant not only failed to establish a threshold evidentiary error supporting reversal, but he also failed to show that he suffered prejudice during sentencing. Wilson v. State, 100 Ark. App. 14, 262 S.W.3d 628 (2007).

In making a decision between concurrent and consecutive sentences under this section, the trial court should make it clear that it was its discretion being exercised when entering the sentences and not the jury's; thus, the trial court did not err in not instructing the jury on concurrent and consecutive sentences. Lee v. State, 2013 Ark. App. 209 (2013).

It is well settled that it is within the discretion of the circuit court to decide whether a defendant's sentences run concurrently or consecutively, and defendant bears the heavy burden to establish that the circuit court abused or failed to exercise that discretion. Clark v. State, 2019 Ark. App. 362, 584 S.W.3d 680 (2019).

Error.

Applicant was entitled to relief, because an error by the Arkansas Department of Correction (ADC) in failing to enter the Fourth Division conviction and sentence in the ADC system caused the failure to have the applicant complete his concurrent state sentences before being transferred to the United States Bureau of Prisons (BOP); the ADC must correct its record to show that the applicant began serving his Fourth Division sentence on the same date he began to serve his Second Division sentence, and upon transfer to the ADC from the BOP, the applicant must serve whatever remains of the sentence he would have served in the ADC had the ADC run his state sentences concurrently as required. Kelley v. Norris, 2012 Ark. 86 (2012).

Evidence.

Evidence in the form of testimony of a mother and her daughter and son, both of whom were under the age of 14, that defendant, who was husband and father to the victims, sexually assaulted the daughter by inserting his finger into the daughter's vagina and forcing the daughter to perform oral sex on defendant, forcing the son and daughter to have sexual intercourse, and forcing the son to have intercourse with the mother, along with medical evidence of injuries to the daughter consistent with sexual assault, supported defendant's conviction for rape and three counts of accomplice to rape as an accomplice. Clem v. State, 351 Ark. 112, 90 S.W.3d 428 (2002).

Filing Fees.

This section is not relevant to question of whether an appellant must pay a filing fee on appeal of both misdemeanor and felony charges. Langley v. State, 343 Ark. 324, 34 S.W.3d 364 (2001).

Misdemeanors.

Where defendant was convicted of two counts of misdemeanor possession of marijuana, and was sentenced to 18 months probation, his sentence violated subdivision (c)(2) of this section which provides that the aggregate of consecutive terms for misdemeanors shall not exceed one year; the one year maximum is applicable to the defendant's probationary sentence by virtue of § 5-4-306(a). Brunson v. State, 45 Ark. App. 161, 873 S.W.2d 562 (1994).

Under this section, a trial court lacks the authority to impose an aggregate sentence of more than one year for the two misdemeanor offenses or to run misdemeanor sentences consecutively with the felony sentences. Moore v. State, 330 Ark. 514, 954 S.W.2d 932 (1997).

Cited: Shipman v. State, 261 Ark. 559, 550 S.W.2d 424 (1977); Welch v. State, 269 Ark. 208, 599 S.W.2d 717; Acklin v. State, 270 Ark. 879, 606 S.W.2d 594 (1980); Beavers v. Lockhart, 755 F.2d 657 (8th Cir. 1985); Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987); Fitzhugh v. State, 293 Ark. 315, 737 S.W.2d 638 (1987); Pettit v. State, 296 Ark. 423, 758 S.W.2d 1 (1988); Lee v. State, 299 Ark. 187, 772 S.W.2d 324 (1989); Moore v. State, 299 Ark. 532, 773 S.W.2d 834 (1989); Bond v. State, 45 Ark. App. 177, 873 S.W.2d 569 (1994); Aaron v. State, 319 Ark. 320, 891 S.W.2d 364 (1995); Smallwood v. State, 326 Ark. 813, 935 S.W.2d 530 (1996); Teague v. State, 328 Ark. 724, 946 S.W.2d 670 (1997); Wilson v. State, 332 Ark. 7, 962 S.W.2d 805 (1998); Gines v. State, 2009 Ark. App. 628 (2009).