Cite as 2016 Ark. 428

No s . CR

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- 706, CR

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- 707, CR

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- 708

FREDERICK PENNINGTON, JR. APPELLANT V. STATE OF ARKANSAS APPELLEE Opinion Delivered December 1, 2016 PRO SE MOTIONS FOR AMEND ED AND SUPPLEMENT AL PLEADINGS, FOR APPOINTMENT OF COUNSEL, FOR PRELIMINARY INJUNCTION ORDERS AND TEMPORARY RESTRAINING ORDERS, AND TO CONSOLIDATE APPEALS [ PULASKI COUN TY CIRCUIT COURT , NO S . 6 0 CR

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- 1933, 60CR

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- 1934, CR

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- 1939 ] HONORABLE HERBERT T. WRIGHT, JR., JUDGE APPEAL S DISMISSED , BUT MATTER REMANDED FOR AMENDED SENTENCING ORDER IN 60CR

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- 1934 ; M OTION S 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

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- 1933 , an aggregate sentence of life imprisonment was imposed for first

- degree murder and aggravate d robbery. I n 60CR

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- 1934, sentence s of life and 20 years’ imprisonment were imposed for aggravated robbery and battery in the first degree. In case number 60CR

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- 1939, a n aggregate sentence of life imprisonment was imposed for two counts of aggravated robbery. Pennington was sixteen year s old at the time of the commission of the offenses. Although
t he judgment entered in 1978 states that Pennington would be eligible for parole after serving one

- third of his sentence s, under Act 1993 of 1977, which was in effect whenCite as 2016 Ark. 428

2 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

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- 604 (Repl. 2006) (applying to felonies committed b etween 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 C ourt
. 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 enter ed 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 n ot cognizable in a habeas proceeding because they d id 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)

. W ith 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 secti ons 16

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- 201 to

- 208 (Repl. 2006). Pennington did not invoke Act 1780 in his petition. Pennington , 2014 Ark.Cite as 2016 Ark. 428

3 356, 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 Penning ton in the cases were facially invalid in light of a recent d ecision 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. W hile 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 the ir life
term s . As stated, p arole eligibility was not authorized by statute in effect when Pennington and Hale committed the offenses that resulted in their being sentenced to life imprisonment. Accord ingly, 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
resentenc ed by the trial court

. Pennington was resentenced on April 11, 2016, but the new sentencing order was not entered o f 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 (20 10) . 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

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- 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

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- 1934 , Pennington wasCite as 2016 Ark. 428

4 resentenced to 600 months’ imprisonment for ag gravated robbery and 240 months for first

degree battery . I n 60CR

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- 1939 , a n aggregate sentence of 600 months’ imprisonment was imposed for two counts of aggravated robbery . The sentence in 60CR

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- 1933 was order ed 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 sentence s 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 Penning ton was not entitled to continue to file pro se pleadingsCite as 2016 Ark. 428

5 in the resentencing proceeding when he was re presented by counsel. On July 14, 2016, Pennington filed a pro se motion for an injunction and a temporary restraining order, and on July 2 0 , 2016, he f

iled 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

o n August 9, 2016, Pennington tendered the three records on appeal to this court. The records were timely tend ered with respect to the July 20 , 2016 notice of appeal that pertained to the June 30, 2016 order

. Accordingly, the three appeal s from the June 30, 2016 order w ere perfected. The appeal s from the April 26, 2016 order w ere not perfected because Pennin gton did not tender the record s 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

– C riminal 4 ( b ) (2015) . The Rule provides that the r ecord 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. T he June 30, 2016 order essentially mirrors the holding in the April 26, 2016 order that Pennington w ould not be permitted to accept appointment of counsel and also proceed pro se. The three tendered records were l odged 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 restraini ng order; motion for

1 Counsel for Pennington has filed a separate appeal from the resentencing proceeding in case number 60CR

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- 1939. See CR

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- 849 lodged September 21, 2016.Cite as 2016 Ark. 428

6 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. W ith respect t o 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. Sta te , 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 rig ht 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 t rial 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 th ese appeal s , there was no ruling for our review. Van Winkle v. State , 2016 Ark. 98, at 15, 486 S.W.3d 778, 788

.Cite as 2016 Ark. 428

7 While we dismiss the appeal, we remand the matter for entry of a nother amended sentencing order in 60CR

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- 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 senten ced 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

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- 1934 ; motion s moot.