Photo: Robert Penny
A Mountain Home man accused of killing his landlord has been turned down in his attempt to have his 12-year prison sentence on lesser charges stemming from the murder reconsidered.
A ruling denying the request of 63-year-old Robert Penny was released by the Arkansas Court of Appeals Wednesday.
In mid-September 2019, Penny was found guilty by a Baxter County Circuit Court jury of trying to run down a Baxter County deputy sheriff as the Mountain Home man tried to leave the scene of the shooting.
He was also found guilty of criminal mischief for crashing into an unoccupied SUV assigned to Baxter County Sheriff John Montgomery doing slightly more than $18,000 in damage as he fled.
After finding Penny guilty of aggravated assault and criminal mischief charges, the jury recommended that his two six-year-prison sentences be stacked.
Circuit Judge Gordon Webb had instructed the panel before they began deliberations that a jury recommendation to stack the sentences was not binding on the court.
Judge Webb, however, did accept the jury’s recommendation in the Penny case and imposed a 12-year sentence.
The jury was unable to reach a unanimous verdict on a first-degree murder charge. Penny is scheduled to be retried on the more serious allegation at some point.
His retrial, along with a number of other murder and manslaughter cases set for trial in Baxter County, has been shoved back several times because of the COVID-19 pandemic.
Currently, there are to be no jury trials scheduled until the end of February this year.
The attorney handling Penny’s appeal of the sentence handed down on the two lesser charges had asked the Court of Appeals to send the case back to Baxter County Circuit Court for resentencing.
The appeal is based on the argument that Judge Webb did not exercise discretion in allowing the sentences to be stacked, but merely accepted the jury’s recommendation.
The state contends there is no evidence to prove Judge Webb did not exercise discretion in accepting the jury’s sentencing recommendation and argued the issue was never brought up during the circuit court trial breaking the rule that issues cannot be first raised on appeal.
If the Court of Appeals had found that discretion was not exercised, it could have ordered Penny’s case sent back for resentencing.
In a brief filed Aug. 25 last year by the Arkansas Attorney General’s Office representing the state in the Penny appeal, it is contended the Mountain Home man’s trial lawyer must have made an objection to the circuit court’s decision to run the sentences consecutively, but failed to do so.
The Appeals Court agreed.
If a motion objecting to the stacked sentences had been made and denied by the trial court judge, that decision could have been appealed.
The state argues that Judge Webb made it clear from the bench that he was under no obligation to accept the jury’s recommendation.
The state contends that even if the Appeals Court ruled favorably on the “first raised on appeal” issue, there is no evidence to prove Judge Webb abused his discretion.
Penny is serving his sentence at the Pine Bluff Unit of the state prison system.
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