ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

LARRY D. VAUGHT, JUDGE

DIVISION II

SHANNON NEAL

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR02-1128

JUNE 25, 2003

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

CR2002-998

HON. WILLARD PROCTOR, JUDGE

AFFIRMED

On March 10, 2002, the State filed a two-count felony information against appellant Shannon Neal, charging him with battery in the first degree, a Class B felony, and felon in possession of a firearm, a Class B felony. The information alleged that these offenses occurred on or about February 3, 2002. On June 20, 2002, appellant pled guilty to both charges and was sentenced by a jury to twenty years on each count, to be served in the Arkansas Department of Correction. The trial court ordered the sentences to run consecutively, with credit for 135 days' time served.

Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, appellant's counsel has filed a motion to withdraw on the ground that this appeal is without merit. Counsel's motion was accompanied by a brief referring to everything in the record that might arguably support an appeal, together with a list of adverse rulings, and a record of all motions and requests made by the appellant, and denied by the court, and a statement of the reasons why counsel considers there to be nothing in the record that will support the appeal. Appellant was provided with a copy of his counsel's brief and was notified of his right to file points for reversal within thirty days. He filed pro se points pursuant to Ark. Sup. Ct. R. 4-3(j)(2) (2002), and the State filed a brief responding to his arguments.

We first address the matters raised in counsel's no-merit brief. Appellant's counsel states that there is no issue which could be raised concerning the entry of the guilty pleas. See Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994) (holding that there is generally no right to an appeal from a plea of guilty). The possibility of appeal pursuant to Ark. R. Crim. P. 24.3 is not applicable here. Additionally, the trial court did not accept the guilty pleas without first addressing appellant personally, informing him of and determining that he understood the nature of the charges, the mandatory minimum sentence, the maximum possible sentences on the charges, and that if he pled guilty he waived his right to trial by jury and the right to be confronted with the witnesses against him pursuant to Ark. R. Crim. P. 24.4. The trial court also determined the voluntariness of the pleas in accordance with Ark. R. Crim. P. 24.5. Finally, the trial court determined that the pleas were based in fact, in accordance with Ark. R. Crim. P. 24.6, by having the prosecutor give a brief recitation of the facts underlying the felony information, to which appellant conceded. Appellant signed a written plea agreement, which he acknowledged in open court. Because the pleas of guilty were accepted by the trial court, and because appellant acknowledged he was waiving his right to object to any errors that might have occurred prior to the entry of his guilty pleas, any argument concerning the pleas would have no merit.

Appellant's counsel next discusses the sole ruling that was adverse to appellant, which was the trial court imposing the two terms of twenty years' imprisonment to run consecutively over appellant's objection. The resulting sentence was forty years' imprisonment. It is within the province of the trial court to determine whether sentences should proceed consecutively orconcurrently, and the decision is left to the sound discretion of the trial court. See Ark. Code Ann. § 5-4-403(a) (Supp. 2001); Wilson v. State, 320 Ark. 142, 895 S.W.2d 524 (1995). The exercise of that discretion will not be altered on appeal unless it is clearly shown to have been abused. Wilson, supra. Additionally, Arkansas Code Annotated section 5-4-403(b) (Supp. 2001) states that the court is not bound by the recommendations of the jury concerning sentencing options under that section.

The statutory procedure was followed correctly in this case. The jury's verdict allowed it to make an advisory recommendation as to sentencing. Subsequent to the jury's recommendation that the sentences be run consecutively, the trial court considered and discussed appellant's request that they be run concurrently. The trial court ultimately rejected the request based on the nature of the offenses and the possibility of early parole.

There is no evidence that the trial judge failed to properly exercise his discretion in ordering the sentences to run consecutively. See Rodgers v. State, 348 Ark. 106, 71 S.W.3d 579 (2002) (where the supreme court held that in sentencing there must be an exercise of judgment by the trial judge, and not a mechanical imposition of sentence suggested by the jury). This is not a case where the trial judge approved the recommendation of the jury to run the sentences consecutively without utilizing his own discretion, and there is no evidence that the judge ordered the sentences to run consecutively as a matter of routine or habit. An appellant assumes a heavy burden of demonstrating that the trial judge failed to give due consideration to the exercise of his discretion in the matter of consecutive sentences. Teague v. State, 328 Ark. 724, 946 S.W.2d 670 (1997).

Appellant asserts in his pro se points that there was insufficient evidence to support his conviction for first-degree battery, that his counsel's ineffectiveness caused him to enter a guilty plea, and that the trial court erred by allowing the State to argue that he was a convicted felon whoshould not have been carrying a firearm in violation of Ark. R. Evid. 404(b) (2002). All three points asserted by appellant are either procedurally barred or without merit.

He argues that the State failed to present any evidence that he acted with the purpose of causing hurt or bodily harm. This argument was waived when he entered a guilty plea to the charge of first-degree battery. Guire v. State, 309 Ark. 209, 832 S.W.2d 457 (1992). Moreover, appellant signed a plea statement waiving his right to have the State prove his guilt beyond a reasonable doubt. We previously addressed the issues surrounding the guilty pleas and are satisfied that the trial court complied with the requirements of Ark. R. Crim. P. 24.4, 24.5, and 24.6. Accordingly, this argument is without merit.

Appellant also contends that the trial court erred during the sentencing phase of the trial by allowing the State to argue that he was a convicted felon who should not have been carrying a firearm at the time he went to the victim's house. This argument is barred because appellant failed to object below. Brooks v. State, 76 Ark. App. 164, 61 S.W.3d 916 (2001). Additionally, the argument is without merit because appellant entered a guilty plea on the felon in possession charge prior to the sentencing phase; thus, there was no possibility of prejudice.

Finally, appellant argues that his entry of the guilty pleas and resulting sentence were the consequence of ineffective assistance of counsel. In order to argue ineffective assistance of counsel on direct appeal, appellant must first present that claim in the trial court below. See Nichols v. State, 69 Ark. App. 212, 11 S.W.3d 19 (2000). Appellant failed to make such an argument below, and accordingly, his argument is procedurally barred.

From our review of the record and counsel's brief, we conclude that there has been full compliance with Ark. Sup. Ct. R. 4-3(j) and that none of the rulings adverse to appellant provide ameritorious ground for reversal. Consequently, we grant counsel's request to be relieved and affirm appellant's conviction.

Affirmed.

Baker and Roaf, JJ., agree.