{ "id": 6136604, "name": "Jack BLAGG, Jr. v. STATE of Arkansas", "name_abbreviation": "Blagg v. State", "decision_date": "2000-12-06", "docket_number": "CA CR 00-72", "first_page": "32", "last_page": "36", "citations": [ { "type": "official", "cite": "72 Ark. App. 32" }, { "type": "parallel", "cite": "31 S.W.3d 872" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "286 Ark. 494", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8722923 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark/286/0494-01" ] }, { "cite": "328 Ark. 724", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 50381 ], "weight": 2, "year": 1997, "pin_cites": [ { "parenthetical": "holding the trial judge's statement that it was sentencing the defendant \"in keeping with the verdict and recommendation of the jury\" did not indicate the failure of the court to exercise discretion" }, { "parenthetical": "holding the trial judge's statement that it was sentencing the defendant \"in keeping with the verdict and recommendation of the jury\" did not indicate the failure of the court to exercise discretion" } ], "opinion_index": 0, "case_paths": [ "/ark/328/0724-01" ] }, { "cite": "273 Ark. 486", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720829 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/ark/273/0486-01" ] }, { "cite": "14 Ark. App. 190", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140243 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark-app/14/0190-01" ] }, { "cite": "270 Ark. 879", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1709288 ], "weight": 4, "year": 1980, "pin_cites": [ { "page": "881" }, { "page": "595" } ], "opinion_index": 0, "case_paths": [ "/ark/270/0879-01" ] } ], "analysis": { "cardinality": 422, "char_count": 7986, "ocr_confidence": 0.741, "pagerank": { "raw": 7.335149380022938e-08, "percentile": 0.4402069387056929 }, "sha256": "524b67c3ce6b79fe4301c704853e5d530530d579514c42b8aff7d07a8eec2ba0", "simhash": "1:c679c42e7c0f19f4", "word_count": 1297 }, "last_updated": "2023-07-14T20:58:14.113773+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Roaf and Pittman, JJ., agree." ], "parties": [ "Jack BLAGG, Jr. v. STATE of Arkansas" ], "opinions": [ { "text": "WENDELL. GRIFFEN, Judge.\nJack Blagg, Jr., appeals from his sentences for possession of marijuana with intent to deliver and possession of drug paraphernalia. The Sebastian County Circuit Court ordered him to serve consecutive sentences of thirty years on the possession-of-marijuana charge and fifteen years on the possession-of-drug-paraphernalia charge. His sole argument on appeal is that the trial court erred in relying upon the jury\u2019s recommendation that the sentences be served consecutively, rather than using its own discretion in sentencing. We affirm his sentences.\nA jury found appellant guilty of possession of marijuana with intent to deliver and possession of drug paraphernalia. During the sentencing phase, the jury submitted a note to the trial judge asking whether the sentences would run consecutively or concurrently. The trial judge read into the record his handwritten response to the jury, which stated, \u201cYou may make a recommendation as to whether the sentences run consecutive[ly] or concurrently], but the ultimate decision will be made by [the] Court.\u201d Appellant\u2019s counsel objected to the court responding in any manner except to inform the jury that it could not consider matters that were not part of the record, and contended that the terms \u201cconsecutive\u201d or \u201cconcurrent\u201d were not made part of the record by the court or the parties. The court responded that \u201cthese are adult jurors and I am sure they have heard the term concurrent or consecutive before this trial started.\u201d\nThe jury recommended that the court sentence appellant to serve consecutive sentences totaling forty-five years. After the trial court sentenced appellant, counsel for appellant made oral motions to set aside the verdict and the sentence, and specifically requested that the trial court use its inherent discretion to correctly sentence appellant pursuant to Arkansas statutes. The trial court denied appellant\u2019s motions. Appellant appeals on the sole ground that the trial court erred in not using its discretion in sentencing.\nArkansas Code Annotated section 5-4-403 (R.epl. 1997) states in part that \u201cwhen multiple sentences of imprisonment are imposed on a defendant convicted of more than one offense . . . the sentences shall run concurrently unless the court orders the sentences to run consecutively.\u201d Appellant concedes that it is solely within the trial court\u2019s discretion whether to sentence a defendant to serve concurrent or consecutive sentences, but argues that the trial court did not exercise its discretion because it deferred to the jury\u2019s recommendation. See Acklin v. State, 270 Ark. 879, 606 S.W.2d 594 (1980). We hold that the trial court did not fail to exercise its discretion in this case, and did not err in imposing consecutive sentences.\nFor support, appellant cites Wing v. State, 14 Ark. App. 190, 686 S.W.2d 452 (1985), and Acklin v. State, supra. In Wing, the trial judge stated that he thought it was presumptuous to \u201cgo against\u201d a jury verdict, that he rarely did so, and stated that if the jury had wished the sentences to run concurrently, it would have so indicated. See Wing v. State, supra. Based on these comments, the Wing court found that the trial judge attempted to implement what he perceived the jury wanted rather than exercise his own discretion in sentencing, and therefore, reversed and remanded for resentencing. See Wing v. State, supra. In Acklin, the trial judge stated: \u201cIt\u2019s my customary rule to run consecutive sentences imposed by jurors . . . it\u2019s just my judgment in the matter that generally that\u2019s what the jury intends to do.\u201d Acklin v. State, 270 Ark. at 881, 606 S.W.2d at 595.\nIn this case, after the jury had reached its verdict but before the trial judge had imposed the sentence, the following exchange between the court and the jury foreperson took place:\nCOURT: I note that in the note that was brought to the clerk concerning whether the sentence would run consecutive [ly] or concurrentfly], that someone has circled that the sentences should run consecutively]. Is that your circling Mr. Rowlett?\nROWLETT: Yes it is, Your Honor.\nCOURT: Is that the recommendation of all of the jurors?\nRowlett-. Yes, Your Honor.\nAt this point, appellant\u2019s attorney requested that the jurors be polled, and all of the jury members indicated that the sentences be served consecutively. The prosecutor then made the following statement:\nSTATE: Your Honor, I think the jury was specific in what it felt it was doing and deliberately made the fifteen years different than the thirty and asked and circled that they be run consecutive [ly]. So I think that it was their wish and their intent that he be sentenced to forty-five years.\nIt is obvious that the trial judge was well-aware of the prosecutor\u2019s and the jury\u2019s desire that the sentences run consecutively. However, the appellate court will not presume that the trial judge failed to exercise his discretion. See Urquhart v. State, 273 Ark. 486, 621 S.W.2d 218 (1981). Moreover, the fact that the trial court considered the jury\u2019s recommendation and the prosecutor\u2019s statement does not establish that the trial judge failed to exercise his discretion in sentencing. See Teague v. State, 328 Ark. 724, 946 S.W.2d 670 (1997) (holding the trial judge\u2019s statement that it was sentencing the defendant \u201cin keeping with the verdict and recommendation of the jury\u201d did not indicate the failure of the court to exercise discretion).\nIn Acklin and Wing, the trial judges made statements plainly indicating that they were not exercising their discretion. The instant case is distinguishable. First, the remarks by the trial judges in Wing and Acklin indicated that those judges not only failed to exercise their discretion in sentencing, but that they routinely failed to exercise their discretion in sentencing. By contrast, the trial judge in the instant case made no statements that can be construed to indicate that he did not intend to exercise his discretion in sentencing appellant, or that he routinely failed to do so. Indeed, the trial judge stated that the ultimate decision would be made by the court, thereby indicating his understanding that the jury\u2019s recommendation was purely advisory. Therefore, we hold that the trial judge did not fail to exercise his discretion in sentencing appellant, and did not err in sentencing appellant to serve consecutive sentences.\nAffirmed.\nRoaf and Pittman, JJ., agree.\nWe note that the State argues that this court should dismiss appellant\u2019s appeal for want of jurisdiction, because appellant\u2019s record as abstracted does not show the record on appeal was timely lodged. The State clearly errs in making this argument. Appellant filed his notice of appeal on June 23, 1999. Therefore, in accordance with Arkansas Rule of Appellate Procedure \u2014 Civil 5(b), unless appellant received an extension of time to file his transcript, his record was due to be lodged with the Clerk of the Supreme Court on or before Thursday, October 21, 1999. The record was not lodged until January 19, 2000. However, the addendum in appellant\u2019s record shows that he filed a motion to extend time to lodge the transcript, and contrary to appellee\u2019s assertion, clearly contains a photocopy of the trial court\u2019s timely order, issued on October 7, 1999, granting appellant until January 20, 2000, to file the record and transcript. Therefore, appellant\u2019s appeal was timely lodged.\nIn fact, the supreme court remanded for the exercise of discretion in sentencing due to similar comments made by the same trial judge in Wing (in another case by the same name) only a few months after the Wing case cited above was delivered. See Wing v. State, 286 Ark. 494, 696 S.W.2d 311 (1985).", "type": "majority", "author": "WENDELL. GRIFFEN, Judge." } ], "attorneys": [ "Hough & Hough, P.A., by: Stephen G. Hough, for appellant.", "Mark Pryor, Att\u2019y Gen., by: C. Joseph Cordi, Jr., Ass\u2019t Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Jack BLAGG, Jr. v. STATE of Arkansas\nCA CR 00-72\n31 S.W.3d 872\nCourt of Appeals of Arkansas Division II\nOpinion delivered December 6, 2000\nHough & Hough, P.A., by: Stephen G. Hough, for appellant.\nMark Pryor, Att\u2019y Gen., by: C. Joseph Cordi, Jr., Ass\u2019t Att\u2019y Gen., for appellee." }, "file_name": "0032-01", "first_page_order": 60, "last_page_order": 64 }