Photo: Robert Penny
A Mountain Home man accused of killing his landlord is attempting to have his 12-year prison sentence on lesser charges stemming from the murder reconsidered.
The case of 63-year-old Robert Penny is now before the Arkansas Court of Appeals.
In mid-September last year, Penny was found guilty by a Baxter County Circuit Court jury of trying to run down a Baxter County deputy sheriff, as he tried to leave the scene of the shooting. He was also found guilty of criminal mischief for crashing into an unoccupied SUV assigned to Baxter County Sheriff John Montgomery, doing slightly more than $18,000 in damage.
After finding Penny guilty of aggravated assault and criminal mischief charges, the jury recommended his two six-year prison sentences be stacked.
Circuit Judge Gordon Webb had instructed the panel before they began deliberations that a jury recommendation to stack the sentences was not binding on the court. Judge Webb, however, did accept the jury’s recommendation in the Penny case and imposed a 12-year sentence.
The jury was unable to reach a unanimous verdict on a first-degree murder charge. Penny is scheduled to be retried on the more serious charge in October.
The attorney handling Penny’s appeal of the sentence handed down on the two lesser charges has asked the Court of Appeals to send the case back to Baxter County Circuit Court for resentencing.
The appeal is based on the argument Judge Webb did not exercise his discretion in allowing the sentences to be stacked, but merely accepted the jury”s recommendation.
The state contends there is no evidence to prove Judge Webb did not exercise discretion in accepting the sentencing recommendation and argues the issue was never brought up during the circuit court trial, breaking the rule that issues cannot be first raised on appeal.
In cases based on the same argument, the state’s highest courts have noted the Arkansas Criminal Code vested the choice between concurrent or consecutive sentences in the judge, not the jury.
In past rulings, the Court of Appeals and the Arkansas Supreme Court have noted that the trial judge can accept a jury’s recommendation for consecutive sentences but “should make it clear on the record that discretion was exercised in deciding to impose consecutive sentences.”
The state’s highest courts have ruled the trial court judge should not “mechanically accept a consecutive sentence recommended by the jury.”
If the Court of Appeals finds that discretion was not exercised, it could order Penny’s case sent back for resentencing.
In similar cases, the state’s highest courts have ruled the defense attorney must make the circuit court aware of any alleged error in sentencing.
In a brief filed Aug. 25 by the Arkansas Attorney General’s Office representing the state in the Penny appeal, it is contended the Mountain Home man must have made an objection to the circuit court’s decision to run the sentences consecutively, but failed to do so.
If the motion had been made and denied by the trial court judge, that decision could have been appealed.
The reason behind determining what effort was made at the time of the trial to have the stacked sentences set aside is that the state’s highest courts do not consider issues first raised on appeal.
In the state’s response to Penny’s request, it is contended since no motion to set aside his sentence was made at the trial court level, reviewing the case now would violate the “first raised on appeal” rule.
The state argues that Judge Webb made it clear from the bench he was under no obligation to accept the jury’s recommendation.
The state contends even if the Appeals Court ruled favorably on the “first raised on appeal” issue, there is no evidence to prove Judge Webb abused his discretion.
In the state’s brief it is noted that Penny “assumes a heavy burden of demonstrating that the circuit court failed to give due consideration to the exercise of discretion.”
Penny is serving his sentence at the Pine Bluff Unit of the state prison system.
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