ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION IV

RALPH LORD and MARILU LORD

APPELLANTS

V.

STATE OF ARKANSAS

APPELLEE

CACR 02-945

AUGUST 27, 2003

APPEAL FROM THE CRAWFORD

COUNTY CIRCUIT COURT

[NO. CR2001-171(A)]

HONORABLE FLOYD G. ROGERS,

JUDGE

AFFIRMED

John B. Robbins, Judge

Appellant Ralph Lord appeals the sentence imposed upon him after being found guilty of the negligent homicide of his four-year-old son, Trenton McMillan. Appellant was charged with manslaughter, but the jury found him guilty of the lesser offense. Negligent homicide is a Class A misdemeanor carrying the possible sentence of a fine not to exceed $1000, confinement of not in excess of one year, or both. See Ark. Code Ann. § 5-10-105(b) (Repl. 1997), § 5-4-201(b)(1) (Repl. 1997), and § 5-4-401(b) (Repl. 1997). The jury verdict form sentenced appellant to a term of "1 year suspended" in the county jail and a $500 fine. The trial judge read the jury's verdict form in open court, stating that the jury had the right to recommend suspension but no authority to impose it. The trial judge then sentenced appellant to one year in the county detention center and ordered him to pay the $500 fine in installments.1 Appellant filed a motion requesting that the trial judge reconsider his sentencing decision; it was denied. Appellant's arguments on appeal are that the trial judge erred (1) by sentencing him against the recommendation of the jury, and (2) by failing to take into consideration certain factors enumerated in Ark. Code Ann. § 5-4-301 in deciding whether to suspend his sentence. We disagree with his arguments and affirm.

Sentencing in Arkansas is entirely a matter of statute. See, e.g., Bunch v. State, 344 Ark. 730, 43 S.W.3d 132 (2001); State v. Freeman, 312 Ark. 34, 846 S.W.2d 660 (1993). Arkansas Code Annotated section 5-4-103(a) (Repl. 1997) provides: "If a defendant is charged with a felony and is found guilty of an offense by a jury, the jury shall fix punishment in a separate proceeding as authorized by this chapter." Subsection (b) then provides five instances in which the court shall fix punishment, none of which is relevant to this case.

Arkansas Code Annotated section 16-97-101 (Supp. 2001), first enacted in Acts 535 and 551 of 1993, also provides for sentencing in jury trials, creating an avenue for separate consideration of guilt and sentencing commonly known as bifurcated proceedings. Thomas v. State, 349 Ark. 447, 79 S.W.3d 347 (2002); Travis v. State, 328 Ark. 442, 944 S.W.2d 96 (1997); Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994). Section 16-97-101 provides in pertinent part:

The following procedure shall govern jury trials which include any felony charges:

(1) The jury shall first hear all evidence relevant to every charge on which a defendant is being tried and shall retire to reach a verdict on each charge.

(2) If the defendant is found guilty of one (1) or more charges, the jury shall then hear additional evidence relevant to sentencing on those charges. Evidence introduced in the guilt phase may be considered, but need not be reintroduced at the sentencing phase.

(3) Following the introduction of additional evidence relevant to sentencing, if any, instruction on the law, and argument, the jury shall again retire and determine a sentence within the statutory range.

(4) The court, in its discretion, may also instruct the jury that counsel may argue as to alternative sentences for which the defendant may qualify. The jury, in its discretion, may make a recommendation as to an alternative sentence. However, this recommendation shall not be binding on the court.

The present appeal followed such a bifurcated proceeding, and subsection (4) explicitly covers the present issue on appeal. Thus, the trial court was authorized to consider, but not mandated to follow, the jury's recommendation.2 Higgins v. State, 326 Ark. 1030, 936 S.W.2d 740 (1996); Slaughter v. State, 69 Ark. App. 65, 12 S.W.3d 240 (2000).

A criminal defendant has no right to a suspended sentence. Dale v. State, 55 Ark. App. 184, 935 S.W.2d 274 (1996). The trial judge obviously exercised discretion when he departed from the jury's recommendation by imposing the one-year sentence but not suspending it. See, e.g., Davidson v. State, 76 Ark. App. 464, 68 S.W.3d 331 (2002). The statutory authority vested in the trial judge to disregard the recommended suspension of sentence was lawfully exercised in this instance.

Appellant's alternate contention on appeal is that the trial judge erred by not making specific findings regarding the factors to be considered when a suspended sentence is available. Appellant assumes the heavy burden of showing that the trial judge failed to give due consideration in the exercise of his discretion. Smallwood v. State, 326 Ark. 813, 935 S.W.2d 530 (1996). Arkansas Code Annotated section 5-4-301 (1997) provides in pertinent part that:

(b) In making a determination as to suspension or probation, the court shall consider whether:

(1) There is undue risk that during the period of a suspension or probation the defendant will commit another offense;

(2) The defendant is in need of correctional treatment that can be provided most effectively by his commitment to an institution;

(3) Suspension or probation will discount the seriousness of the defendant's offense; or

(4) The defendant has the means available or is so gainfully employed that restitution or compensation to the victim of his offense will not cause an unreasonable financial hardship and will be beneficial to the rehabilitation of the defendant.

(c) The following grounds, while not controlling the discretion of the court, shall be accorded weight in favor of suspension or probation:

          (1) The defendant's conduct neither caused nor threatened serious harm;

(2) The defendant did not contemplate that his conduct would cause or threaten serious harm;

          (3) The defendant acted under strong provocation;

(4) There were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense;

          (5) The victim of the offense induced or facilitated its commission;

(6) The defendant has compensated or will compensate the victim of the offense for the damage or injury that he sustained;

(7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense;

          (8) The defendant's conduct was the result of circumstances unlikely to recur;

(9) The character and attitudes of the defendant indicate that he is unlikely to commit another offense;

(10) The defendant is particularly likely to respond affirmatively to suspension or probation;

(11) The imprisonment of the defendant would entail excessive hardship to him or his dependents;

          (12) The defendant is elderly or in poor health;

(13) The defendant cooperated with law enforcement authorities in his own prosecution or in bringing other offenders to justice.

Appellant argues that the trial judge made no reference to these factors when sentencing appellant or when he denied appellant's motion to reconsider sentencing and therefore must not have considered these factors. Appellant fails to recognize that he set forth these statutory factors verbatim in his post-sentencing brief to the trial judge. The trial judge filed a written denial of that motion without making specific findings of fact. In the absence of proof that the trial judge failed to follow the law, we presume that he did. See Dilday v. State, 300 Ark. 249, 778 S.W.2d 618 (1989) (holding that absent evidence to the contrary, there is a presumption that public officials will follow the law in performance of their duties).

Affirmed.

Pittman and Hart, JJ., agree.

1 Marilu Lord was also found guilty and filed a notice of appeal but did not pursue the appeal. Marilu received the same sentence recommendation as appellant Ralph Lord. The trial court sentenced her in line with the jury's recommendation.

2 To the extent that the jury's verdict may have been intended to assess a one-year suspended sentence as punishment rather than a recommendation of an alternative sentence, such a verdict is not one that a jury is authorized by law to impose. If that were the case, the trial court could properly take the function of sentencing from the jury pursuant to Ark. Code Ann. § 16-90-107(a)(1987), which provides that:

(a) When the jury finds a verdict of guilty and fails to agree on the punishment to be inflicted, or does not declare the punishment in its verdict, or if it assesses a punishment not authorized by law, and in all cases of a judgment on confession, the court shall assess and declare the punishment and render judgment accordingly. (Emphasis added.)

Under this authority, the trial court could properly impose its own sentence.