ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION IV

ERIC CAFFEY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 01-1241

SEPTEMBER 18, 2002

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT, SIXTH

DIVISION, [NO. CR 2000-1824]

HONORABLE DAVID BOGARD,

JUDGE

AFFIRMED

Appellant Eric Caffey was found guilty of being a felon in possession of a firearm as determined by a jury in Pulaski County Circuit Court. Appellant was sentenced to fifteen years in prison, the sentence to run consecutively to another prison term appellant was already serving. As his sole point on appeal, appellant argues that the trial judge failed to exercise his discretion when he ordered appellant's sentence to run consecutively to his current forty-year prison sentence. We affirm.

To determine whether discretion was exercised, we examine the trial judge's explanation of his decision as was done in Wing v. State, 286 Ark. 494, 696 S.W.2d 311 (1985). On the jury verdict form in the present appeal, the jury's foreperson handwrote that "we recommend that this sentence be imposed consecutive to time the defendant is already serving." This was signed by the jury foreperson. After the jury was dismissed, defense

counsel requested that the sentence run concurrently. The trial judge responded with a query about whether the prior sentence, having resulted from revocation, mandated that the current sentence be consecutive. The prosecutor responded that the State believed that because appellant was serving time subject to a revocation of probation, the court was compelled to run the sentence consecutively. Defense counsel disagreed. Both defense counsel and the prosecutor subsequently argued that, regardless of whether the law compelled a consecutive sentence, the trial judge should decide to run the sentence in line with their respective positions, concurrently or consecutively. The trial judge responded:

Unless you give me some compelling reason not to, I think regardless of whether I have to or not, that was, in fact, the jury's request. And I think it's the right thing to do based on what I've heard, including the fact that Mr. Caffey was on an appeal bond at the time this offense was committed. And it's not so much the offense in and of itself that concerns me, but it's the type of weapon that's alleged here. And I think that it can be inferred from the videotape that we saw that there's not much legitimate purpose for that weapon other than to cause bodily harm to others, be it in defense of yourself or not. That's not a hunting rifle. I just don't know what else one would do with that.

But in light of the prior offenses, I think that's something that the jury obviously took into consideration when they imposed the sentence. And I know of no compelling reason not to follow their recommendation in this case.

So it will be the judgment and sentence of the court, Mr. Caffey, that you be taken to the Arkansas Department of Correction by the sheriff of Pulaski County. Therein, you will serve a term of 15 years on this charge. That sentence will be consecutive to the time that you are currently serving.

Appellant concedes that it is solely within the trial court's discretion whether to sentence a defendant to serve concurrent or consecutive sentences and that "examination of some of the remarks made by the circuit judge in the course of explaining why he wasmaking the decision" during sentencing "suggests that the circuit judge exercised discretion in making this decision." Nevertheless, appellant argues that the trial court did not exercise its discretion because the totality of the circumstances indicate that the court sentenced him based upon an erroneous understanding of the law regarding sentencing in this context and based upon a gratuitous suggestion from the jury that the jury was not entitled to make. We hold that appellant has not carried his burden of demonstrating an abuse of discretion.

On appeal to this court, we review the sentencing to determine whether the trial court exercised its discretion. See Kellogg v. State, 37 Ark. App. 162, 827 S.W.2d 166 (1992). 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). The appellant assumes a heavy burden of showing that the trial judge failed to give due consideration to the exercise of his discretion in the matter of consecutive sentences. Love v. State, 324 Ark. 526, 922 S.W.2d 701 (1996); Edwards v. State, 300 Ark. 4, 775 S.W.2d 900 (1989). The fact that the trial court considered the jury's recommendation 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'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). There is no rule that requires a trial judge to set forth in writing that he has exercised discretion. See Urquhart v. State, 273 Ark. 486, 621 S.W.2d 218 (1981) (holding that because sentencing is a matter within the trial judge's discretion, it would not presume he did not exercise that discretion unless there is some indication otherwise).

The relevant statutory authority, effective when appellant was sentenced, is found in Ark. Code Ann. § 5-4-403 (Repl. 1997)1, and it states in relevant part:

(b) When a sentence of imprisonment is imposed on a defendant who has previously been sentenced to imprisonment, whether by a court of this state, a court of another state, or a federal court, the subsequent sentence shall run concurrently with any undischarged portion of the previous sentence unless the court imposing the subsequent sentence orders it to run consecutively with the previous sentence.

Sentencing authority is also found in Ark. Code Ann. § 16-90-109(b)(1987), which permits the court to direct that the sentence imposed run concurrently with another sentence, if it shall be deemed best for society and the person convicted.

The trial judge in the present appeal entertained arguments for and against consecutive sentencing and indicated his understanding that the jury's recommendation was advisory. Additionally, while appellant may be correct that the trial judge and the prosecutor were misinformed about whether consecutive jail time was mandated, the trial judge did not make his disposition on that alleged misapprehension. Therefore, we hold that the trial judge exercised his discretion in sentencing appellant, as appellant has conceded, and did not err in sentencing appellant to serve his sentence consecutively to his current prison term.

We affirm.

Stroud, C.J., and Hart, J., agree.

1 Arkansas Code Annotated section 5-4-403 was amended by Act 1644 of 2001, effective August 13, 2001. The amendment added wording in subsection (b) to permit consideration of the jury's recommendation or the court's own motion as the means to institute the consecutive sentencing. The amendment also added a new subsection, (d), which provides specifically that the trial court is not bound by recommendations of the jury concerning sentencing options under this section.