{
  "id": 1709288,
  "name": "John W. ACKLIN a/k/a Yahya ZAKARIYA v. STATE of Arkansas",
  "name_abbreviation": "Acklin v. State",
  "decision_date": "1980-10-27",
  "docket_number": "CR 80-171",
  "first_page": "879",
  "last_page": "881",
  "citations": [
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      "cite": "270 Ark. 879"
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    {
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      "cite": "606 S.W.2d 594"
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  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
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        2270513
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      "year": 1973,
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      "category": "reporters:federal",
      "reporter": "F.2d",
      "case_ids": [
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      "year": 1975,
      "opinion_index": 0,
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    {
      "cite": "254 Ark. 741",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1624179
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      "weight": 2,
      "year": 1973,
      "opinion_index": 0,
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        "/ark/254/0741-01"
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  "last_updated": "2023-07-14T16:40:39.197564+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "John W. ACKLIN a/k/a Yahya ZAKARIYA v. STATE of Arkansas"
    ],
    "opinions": [
      {
        "text": "George Rose Smith, Justice.\nThe 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.\nAcklin 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. \u00a7 41-901 (c) (Repl. 1977). The Code also provides that multiple sentences shall run concurrently unless the court orders them to run consecutively. \u00a7 41-903 (3)(a).\nHow 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\u2019s 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 \u201cstack\u201d them. Orman v. Bishop, 243 Ark. 609, 420 S.W. 2d 908 (1967).\nAfter 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\u2019s request that the sentences run concurrently, because the defendant had five children to support, the court replied:\nI\u2019m mindful of that, Mr. Holder. And I\u2019m 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\u2019s 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.\nThere\u2019s no defense to this case. There has not been one presented, and it\u2019s been an exercise that Mr. Zakariya elected to see what would happen, I guess. . . . It\u2019s expensive to see and to look and to try the system. So it\u2019s my judgment that he should not be entitled to consideration.\n* # * #\nHe is not being penalized for exercising his right [to a jury trial]. The truth of the matter is that he had no defense to this case. . . . He could [not would, as the State argues] have gotten the same judgment, the same sentence, the same due process, had he come in here and told the Court that he was guilty.\nI am reminded of Judge J. Smith Henley in federal court, where th\u00e9 federal courts do all the sentencing, and all the guilt or innocence is determined by the jury. \u2018If you\u2019ve got a legitimate defense, come over here and argue it. It won\u2019t cost you anything. But if you come over here and waste my time, the jury\u2019s time and the taxpayer\u2019s money, it may very well cost you something.\u2019\nI\u2019m not saying that\u2019s what I\u2019m doing. It\u2019s my customary rule to run consecutive sentences imposed by jurors, not because it\u2019s an expense to the county and not because someone elects to do that; it\u2019s just my judgment in the matter that generally that\u2019s what the jury intends to do.\nThe Code vests the choice between concurrent and consecutive sentences in the judge, not in the jury. We commend the trial judge for his outspoken candor and would certainly condemn a resort to silence as a deliberate means of concealing an improper practice. But the trouble is, nothing in the colloquy indicates that the trial judge really exercised his discretion. Rather, he seems to have imposed consecutive sentences either because the defendant asked for a jury trial without any defense or because it was the court\u2019s rule to direct that jury sentences run consecutively. We have often said that a court proceeding should not merely be fair; it should also appear to be fair. Without implying in any way that the consecutive sentences are unwarranted, we find it best to remand the cause for resentencing. See Derrick and Woosley, supra.\nReversed and remanded.",
        "type": "majority",
        "author": "George Rose Smith, Justice."
      }
    ],
    "attorneys": [
      "E. Alvin Schay, State Appellate Defender, by: Jackson Jones, Deputy Defender, for appellant.",
      "Steve Clark, Atty. Gen., by: C. R. McNair, III, Asst. Atty. Gen., for appellee."
    ],
    "corrections": "",
    "head_matter": "John W. ACKLIN a/k/a Yahya ZAKARIYA v. STATE of Arkansas\nCR 80-171\n606 S.W. 2d 594\nSupreme Court of Arkansas\nOpinion delivered October 27, 1980\nE. Alvin Schay, State Appellate Defender, by: Jackson Jones, Deputy Defender, for appellant.\nSteve Clark, Atty. Gen., by: C. R. McNair, III, Asst. Atty. Gen., for appellee."
  },
  "file_name": "0879-01",
  "first_page_order": 907,
  "last_page_order": 909
}