Pennington v. State , 2016 Ark. 428 ( 2016 )

Cite as 2016 Ark. 428
SUPREME COURT OF ARKANSAS.
Nos. CR-16-706, CR-16-707, CR-16-708
Opinion Delivered December 1, 2016
FREDERICK PENNINGTON, JR. PRO SE MOTIONS FOR AMENDED
APPELLANT AND SUPPLEMENTAL PLEADINGS,
FOR APPOINTMENT OF COUNSEL,
V. FOR PRELIMINARY INJUNCTION
ORDERS AND TEMPORARY
STATE OF ARKANSAS RESTRAINING ORDERS, AND TO
CONSOLIDATE APPEALS
APPELLEE [PULASKI COUNTY CIRCUIT COURT,
NOS. 60CR-77-1933, 60CR-77-1934, CR-
77-1939]
HONORABLE HERBERT T.
WRIGHT, JR., JUDGE
APPEALS DISMISSED, BUT MATTER
REMANDED FOR AMENDED
SENTENCING ORDER IN 60CR-77-
1934; MOTIONS MOOT.
PER CURIAM
In 1978, appellant Frederick Pennington, Jr., entered a negotiated plea of guilty in
the Pulaski County Circuit Court in three cases. In case number 60CR-77-1933, an
aggregate sentence of life imprisonment was imposed for first-degree murder and aggravated
robbery. In 60CR-77-1934, sentences of life and 20 years’ imprisonment were imposed
for aggravated robbery and battery in the first degree. In case number 60CR-77-1939, an
aggregate sentence of life imprisonment was imposed for two counts of aggravated robbery.
Pennington was sixteen years old at the time of the commission of the offenses. Although
the judgment entered in 1978 states that Pennington would be eligible for parole after
serving one-third of his sentences, under Act 1993 of 1977, which was in effect when
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Pennington committed the offenses, he was not eligible for release on parole unless his life
sentences were commuted to a term of years by executive clemency. See Ark. Code Ann.
§ 16-93-604 (Repl. 2006) (applying to felonies committed between April 1, 1977, and April
1, 1983).
In 2012, Pennington, who was incarcerated at a facility of the Arkansas Department
of Correction located in Jefferson County, filed a pro se petition for writ of habeas corpus
in the Jefferson County Circuit Court. In support of issuance of the writ, Pennington
alleged that his constitutional rights were violated when he was sentenced to life
imprisonment for crimes committed when he was a minor, that he was actually innocent of
the crimes of which he had been convicted, that he had been denied a transfer hearing and
a juvenile-detention hearing, and that he had not entered his guilty plea with advice of
competent counsel. Pennington subsequently filed multiple pleadings in the proceeding.
The circuit court denied the relief sought, and Pennington appealed to this court.
On appeal, we noted that claims of due-process violations, ineffective assistance of
counsel, and police misconduct that Pennington had raised in the circuit court were not
cognizable in a habeas proceeding because they did not call into question the jurisdiction of
the trial court or the facial validity of the judgment-and-commitment order. Pennington v.
Hobbs, 2014 Ark. 356, at 6, 451 S.W.3d 199, 202 (per curiam). With respect to
Pennington’s assertion of actual innocence, we held that a petitioner asserting the right to
be released on a writ of habeas corpus on the ground of actual innocence must proceed
under Act 1780 of 2001, codified at Arkansas Code Annotated sections 16-112-201 to -208
(Repl. 2006). Pennington did not invoke Act 1780 in his petition. Pennington, 2014 Ark.
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356, at 6, 451 S.W.3d 199, 203. We affirmed the denial of habeas relief, but, on rehearing,
we held that the sentencing orders against Pennington in the cases were facially invalid in
light of a recent decision in Hale v. Hobbs, 2014 Ark. 405, 443 S.W.3d 533. In Hale, we
directed that the appellant Hale be resentenced. The appellant in Hale was Billy Ray Hale,
who was Pennington’s codefendant in the three cases at issue.
While the specific issue in Hale that concerned the sentencing to life with the
possibility of parole was not raised by Pennington, both Pennington and Hale were
sentenced to life imprisonment with the possibility of parole after serving a part of their life
terms. As stated, parole eligibility was not authorized by statute in effect when Pennington
and Hale committed the offenses that resulted in their being sentenced to life imprisonment.
Accordingly, in Pennington v. Hobbs, 2014 Ark. 441 (per curiam), we also reversed the denial
of habeas relief by the circuit court and issued the writ so that Pennington could be
resentenced by the trial court.
Pennington was resentenced on April 11, 2016, but the new sentencing order was
not entered of record until May 26, 2016. In an addendum to the order, the trial court
stated that it had taken into account not only this court’s decision reversing the habeas order
but also Graham v. Florida, 560 U.S. 48 (2010). In Graham, 560 U.S. at 74, the Court held
“that for a juvenile offender who did not commit homicide the Eighth Amendment forbids
the sentence of life without parole.”
In case number 60CR-77-1933, Pennington was sentenced to an aggregate term of
240 months’ imprisonment with imposition of an additional 360 months suspended for first-
degree murder and aggravated robbery. In case number 60CR-77-1934, Pennington was
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resentenced to 600 months’ imprisonment for aggravated robbery and 240 months for first-
degree battery. In 60CR-77-1939, an aggregate sentence of 600 months’ imprisonment
was imposed for two counts of aggravated robbery. The sentence in 60CR-77-1933 was
ordered to be served consecutively to the terms in the other two cases for a total term to be
served on the three cases of 840 months’ imprisonment. Pennington was afforded “jail-
time credit” against the aggregate sentences of all days served since October 25, 1977. On
June 8, 2016, the trial court amended the order, but the length of the aggregate sentence in
the three cases, 840 months, remained the same.
On April 21, 2016, Pennington filed in the trial court a pro se petition for rehearing
from the resentencing order that was subsequently entered on April 26. On April 21, 2016,
the trial court dismissed the pro se petition on the ground that Pennington had been
represented by counsel in the resentencing proceeding and was not entitled to accept
counsel and also represent himself. Pennington filed a pro se notice of appeal from the April
26, 2016 order on May 23, 2016.
On June 7, 2016, Pennington filed a pro se motion to withdraw his 1978 guilty pleas
in the three cases on the ground of ineffective assistance of counsel pursuant to Arkansas
Rule of Criminal Procedure 26.1 (2015). On the same day, he filed a pro se motion for
relief from the resentencing order of “April 11, 2016,” on behalf of himself and Billy Ray
Hale pursuant to Arkansas Rule of Civil Procedure 60.
The trial court dismissed the pro se pleadings on June 30, 2016, noting that
Pennington did not have authority to plead on behalf of Hale and repeating the holding in
its April 26, 2016 order that Pennington was not entitled to continue to file pro se pleadings
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in the resentencing proceeding when he was represented by counsel. On July 14, 2016,
Pennington filed a pro se motion for an injunction and a temporary restraining order, and
on July 20, 2016, he filed a notice of appeal designating the June 30, 2016 order.
The circuit clerk prepared a separate appeal record for each of the three cases, and
on August 9, 2016, Pennington tendered the three records on appeal to this court. The
records were timely tendered with respect to the July 20, 2016 notice of appeal that
pertained to the June 30, 2016 order. Accordingly, the three appeals from the June 30,
2016 order were perfected. The appeals from the April 26, 2016 order were not perfected
because Pennington did not tender the records on appeal from that order within ninety days
of the date of the May 23, 2016 notice of appeal that designated the April 26, 2016 order as
required by Arkansas Rule of Appellate Procedure–Criminal 4(b) (2015). The Rule
provides that the record on appeal shall be filed with the clerk of the Arkansas Supreme
Court and docketed therein within ninety days from the filing of the notice of appeal, unless
the time is extended. See State v. Bragg, 2016 Ark. 242, at 6. The June 30, 2016 order
essentially mirrors the holding in the April 26, 2016 order that Pennington would not be
permitted to accept appointment of counsel and also proceed pro se. The three tendered
records were lodged as three separate appeals of the June 30, 2016 order.1
Now before us are four identical pro se motions that Pennington has filed in each of
the three appeals: motion to consolidate the three appeals; motion for appointment of
counsel; motion for a preliminary injunction and a temporary restraining order; motion for
1 Counsel for Pennington has filed a separate appeal from the resentencing proceeding
in case number 60CR-77-1939. See CR-16-849 lodged September 21, 2016.
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amended pleadings and supplemental pleadings. As a review of the record establishes that
Pennington could not prevail in the appeal, we dismiss the three appeals. The motions filed
here are moot.
With respect to the trial court’s dismissal on June 30, 2016, of Pennington’s multiple
pro se pleadings, we find no error. We have held that a defendant is not entitled to
representation by counsel and to also proceed pro se in the same proceeding. See Hamilton
v. State, 348 Ark. 532, 74 S.W.3d 615 (2002); see also Ward v. State, 2015 Ark. 325, at 3–4,
469 S.W.3d 350, 352 (per curiam), reh’g denied (Mar. 31, 2016); Monts v. Lessenberry, 305
Ark. 202, 204, 806 S.W.2d 379, 381 (1991) (per curiam) (holding there is no right to a
“hybrid” representation consisting of counsel and a criminal defendant both making
arguments). Accordingly, the trial court did not err in holding that Pennington was not
entitled to accept the appointment of counsel in the resentencing proceeding in his cases
and also file pro se pleadings.
With respect to the pro se motion that Pennington filed to withdraw his guilty plea,
even if it could be considered as a pleading separate from the resentencing proceeding, there
was no specific ruling by the trial court on the motion separate from the other pleadings
filed by Pennington after counsel had been appointed for him in the resentencing
proceeding. As the trial court did not specifically address the motion, which was filed June
7, 2016, in the order entered June 30, 2016, from which Pennington brings these appeals,
there was no ruling for our review. Van Winkle v. State, 2016 Ark. 98, at 15, 486 S.W.3d
778, 788.
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While we dismiss the appeal, we remand the matter for entry of another amended
sentencing order in 60CR-77-1934. In that case, the order incorrectly reflects that
Pennington was sentenced to 600 months’ imprisonment on both the aggravated robbery
and the first-degree battery convictions. It should reflect that he was sentenced to 600
months’ imprisonment for aggravated robbery and 240 months for first-degree battery.
Appeal dismissed, but matter remanded for amended sentencing order in 60CR-77-
1934; motions moot.
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