Mar 13, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation
This SC Supreme Court case addresses the issue of “stacking” wages. In many states, an employer is only responsible for an injured workers’ lost wages from the one job. However, under SC workers’ compensation law, you are able, in most situations, to “stack” or “combine” lost wages from other employment as well. Here, the Court was presented with the unique issue of whether someone serving jail time on the weekends could similarly stack their wages when injured at prison. Given clear legislative language against same, the Court ruled no stacking was permitted under these limited circumstances. Because the “average weekly wage” and resulting “compensation rate” are key to every financial aspect of a workers’ compensation claim, it is imperative that you get maximum credit for all possible wages and even qualifying fringe benefits. Better make sure your attorney understands this area of workers’ compensation law and is willing to fight to get you the best possible compensation rate. There is too much at stake to risk an inexperienced lawyer.
At Reeves, Aiken & Hightower LLP, our lawyers are experienced workers’ compensation attorneys. Robert J. Reeves is a former intensive care unit Registered Nurse (RN) who has actually treated patients with the same type of serious injuries he now represents in workers’ compensation cases. Both Robert J. Reeves and Arthur K. Aiken are former insurance defense attorneys who know what to anticipate and how to prepare for trial and insurance company tactics. During our twenty-two (22) years each of practicing law, we have handled virtually every type of workers’ compensation injury, including neck, back, shoulder, knee accidents, closed head / brain injury, herniated disks, bulging disks, diskectomy surgery, fusion procedures, arthroscopy, automobile accidents on the job, psychological / post traumatic stress, permanent and total disability claims, and wrongful death. We welcome the opportunity to sit down and personally discuss your case. Compare our attorneys’ credentials to any other firm. Then call us at 803-548-4444 for a private consultation. Or visit our firm’s website at www.rjrlaw.com
THE STATE OF SOUTH CAROLINA
In The Supreme Court
James A. Smith, Respondent,
v.
Barnwell County, Employer, and South Carolina Association of Counties Self Insurance Fund, Carrier, Appellants.
Appeal from Barnwell County
Doyet A. Early, III, Circuit Court Judge
Opinion No. 26716
Heard June 10, 2009 – Filed September 8, 2009
REVERSED
Richard Kale, Jr., of Wilson, Jones, Carter & Baxley, of Greenville, for Appellants.
Andrew Nathan Safran, of Columbia, for Respondent.
Grady L. Beard and Daniel W. Hayes, both of Sowell, Gray, Stepp & Laffitte, of Columbia, for Amicus Curiae.
JUSTICE PLEICONES: This case presents the question whether an inmate injured while serving time on weekends may include his full time employment wages in addition to prison pay in determining his average weekly wage, for purposes of workers’ compensation. Because we find that the legislature intended to deny inmates the right to combine wages, we find that Respondent may not do so. We therefore reverse the circuit court’s decision to the contrary.
FACTS
After a conviction for driving under the influence, Appellant James A. Smith served time on weekends at the Barnwell County Detention Center, where he was directed to engage in various work activities.[1] Smith also worked during the week at Bowe Construction. While working at a landfill during his weekend sentence, Smith fell from a tractor and injured his back.
Barnwell County elected to cover its prisoners under the workers’ compensation program, as allowed by S.C. Code Ann. § 42-1-500 (2005). Barnwell County accepted Smith’s claim for workers’ compensation and began paying him compensation based upon an average weekly wage of $40 a week, the amount provided in S.C. Code Ann. § 42-7-65 (2005) as the average weekly wage for county and municipal prisoners. Smith then filed a Form 50 with the Workers’ Compensation Commission contending that the average weekly wage from his regular employment, which he claimed was $333.82, should also be included in determining his compensation.
Following a hearing, the single commissioner ruled that Smith could not include the average weekly wage from his regular employment. The full commission affirmed and the circuit court reversed the full commission. Barnwell County appealed.
ISSUES
| Did the circuit court err in finding that Smith is an “employee” of Barnwell County? |
| Did the circuit court err in finding that Smith may combine wages from civilian employment with the statutory average weekly wage for county prisoners? |
DISCUSSION
The amount of compensation awarded under the workers’ compensation statutes is based on the worker’s average weekly wage. S.C. Code Ann. § 42-1-40 provides the method for calculating the average weekly wage, but allows for deviation from the method “for exceptional reasons . . . .” S.C. Code Ann. § 42-1-40 (2005). This Court has held that concurrent employment is one such exceptional reason. See Foreman v. Jackson Minit Markets, Inc., 265 S.C. 164, 217 S.E.2d 214 (1975).
Barnwell County argues on appeal that Smith was not an “employee” of Barnwell County and therefore, since Smith was not working for two or more employers when the injury occurred, Smith may not recover compensation for concurrent employment. We need not reach this issue because we agree with the County that, even assuming Smith is an “employee” for workers’ compensation purposes, he may not combine wages under § 42-1-40.
Originally, the average weekly wage for prisoners was addressed in § 42-1-40, which contained the “exceptional reasons” provision.[2] In 1983, after this Court’s decision in Foreman, the General Assembly removed the inmate section from § 42-1-40 and included it in the newly-created § 42-7-65, which contains no “exceptional reasons” provision. Section 42-7-65 is entitled “Average weekly wage designated for certain categories of employees”[3] and provides in part, “[t]he average weekly wage for county and municipal prisoners is forty dollars a week.”
By removing inmates from § 42-1-40, designating a specific weekly wage for inmates, and not providing an “exceptional reasons” provision in § 42-7-65, we find that the General Assembly intended that inmates not be allowed to combine wages in determining their average weekly wage. Compare Boles v. Una Water District, 291 S.C. 282, 353 S.E.2d 286 (1987) (holding that volunteer firefighter may combine wages where firefighter’s average weekly wage was set forth in § 42-1-40). If the General Assembly had not intended such a result, there would have been no reason to remove inmates from § 42-1-40. See Cannon v. South Carolina Dep’t of Probation, Parole, and Pardon Serv., 371 S.C. 581, 430, 641 S.E.2d 429, 584 (2007), citing Denene, Inc. v. City of Charleston, 352 S.C. 208, 574 S.E.2d 196 (2002) (it must be presumed the Legislature did not intend a futile act, but rather intended its statutes to accomplish something).
Given the above, we find that the General Assembly intended to deny inmates the ability to combine wages in determining their average weekly wage. See State v. Scott, 351 S.C. 584, 588, 571 S.E.2d 700, 702 (2002) (The cardinal rule of statutory interpretation is to ascertain the intent of the legislature.). Smith is therefore limited to the average weekly wage provided by § 42-7-65.[4]
CONCLUSION
Assuming arguendo that Smith is an “employee” for purposes of the workers’ compensation statute, we find that Smith may not combine wages. The General Assembly did not intend for an inmate to be able to combine wages in determining his average weekly wage.
REVERSED.
TOAL, C.J., WALLER, BEATTY and KITTREDGE, JJ., concur.
[1] Though the record is silent as to whether Smith’s labor was mandatory or voluntary, he was apparently engaged in a voluntary program for labor on public works allowed by S.C. Code Ann. § 24-13-235 (2005).
[2] Though § 42-1-40 only specifically addressed the average weekly wage of inmates of the State of South Carolina, S.C. Code Ann. § 42-1-500 (1977) provided for worker’s compensation coverage for certain county inmates in accordance with the statutes addressing coverage for State inmates.
[3] 1983 Act No. 33, § 1; county prisoners were added in 1991 Act. No. 16, § 2.
[4] We reject Smith’s argument that S.C. Code Ann. § 42-7-65 (2005), as interpreted by Appellant, is penal in nature and so, must be strictly construed against the governmental entity seeking to enforce it. “A determination of whether a statute is civil or criminal in nature is primarily a question of statutory construction, which begins by reference to the act’s text and legislative history.” See In re Matthews, 345 S.C. 638, 648, 550 S.E.2d 311, 316 (2001). “Where the legislature has manifested its intent that the legislation is civil in nature, the party challenging that classification must provide ‘the clearest proof that the statutory scheme is so punitive in either purpose or effect as to negate the [legislature’s] intention.’” Id. In the instant case, Smith has failed to show the punitive nature of § 42-7-65, a part of the worker’s compensation act.
Mar 11, 2012 | Criminal Defense, Uncategorized
This SC Supreme Court decision reaffirms the critical importance of issuing warrants. Without the signature of the issuing judge, the warrant is just a “piece of unfinished paper.” Any evidence obtained pursuant to such a “warrant” is, therefore, invalid and must be suppressed. If ever confronted with a law enforcement officer seeking to search your home or business, ask to see the warrant. If not signed, you can object to allowing the police to go forward. If they insist on proceeding, call an experienced criminal defense lawyer immediately and decline to answer any questions until you get advice. Better make sure your attorney knows and understands this complex area of criminal law and is willing to fight to make sure you get a fair and just trial. There is too much at stake to risk an inexperienced lawyer.
At Reeves, Aiken & Hightower LLP, our attorneys have over 70 years of combined trial experience in both civil and criminal courts. We are available by mobile phone in the evenings, on weekends, and even holidays. Our lawyers are licensed in both South Carolina and North Carolina and are effective criminal trial attorneys. We are not afraid to go to Court and often do. Tyler Burns is a former 16th Circuit (York County) prosecutor, and Art Aiken is a accomplished criminal attorney who has tried virtually every type of criminal case in both state and federal courts. And, Bea Hightower is a former Richland County public defender in Columbia. We welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials and experience to any other law firm. Then call us at 803-548-4444 for a private consultation. Or visit our firm’s website at www.rjrlaw.com
THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Petitioner/Respondent,
v.
Kevin Covert, Respondent/Petitioner.
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal from Greenville County
James C. Williams, Jr., Circuit Court Judge
Opinion No. 26632
Heard January 21, 2009 – Filed April 13, 2009
AFFIRMED AS MODIFIED
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott and Senior Assistant Attorney General Norman Mark Rapoport, all of Columbia, and Robert Mills Ariail, of Greenville, for Petitioner/Respondent.
Katherine Carruth Link, of West Columbia, for Respondent/Petitioner.
JUSTICE PLEICONES: We granted certiorari to review the Court of Appeals decision in State v. Covert, 368 S.C. 188, 628 S.E.2d 482 (Ct. App. 2006)[1] and now affirm, as modified, that court’s decision to grant respondent a new trial. In a split decision, Judges Short and Anderson found reversible error in the jury’s possession of a statute during deliberations; in addition, Judge Short found that evidence should have been suppressed, and Judge Anderson found reversible error in the verdict form.
We hold, as did Judge Short, that an unsigned search warrant is invalid, and agree with Judge Anderson that when a verdict form is submitted to a jury in a criminal case, it must affirmatively offer a “not guilty” option. Finally, while we agree with Judges Short and Anderson that it was error to permit this jury to have a written version of the trafficking statute with it during deliberations, we would not find sufficient prejudice from that error alone to warrant reversal.
ISSUES
| Did Judge Short err in holding that an unsigned search warrant is invalid? |
| Did Judge Anderson err in finding the verdict form here was so prejudicial as to require reversal? |
| Did permitting the jury to have a written version of the trafficking statute with it during deliberations require reversal? |
ANALYSIS
1. Warrant
The search warrant in this case is signed by the magistrate, and dated September 28, 2002; the accompanying two-page affidavit is signed by her on each page, and both these signatures are dated September 26, 2002. The return is signed and dated September 27, 2002. It is undisputed that the warrant was obtained and served on September 26, 2002.
At trial, respondent contended that the warrant was unsigned when it was served, that it was therefore invalid, and that accordingly the evidence seized pursuant to the search should be suppressed. Respondent argued that, without the magistrate’s signature, the warrant was not issued within the meaning of South Carolina’s search warrant statute, S.C. Code Ann. § 17-13-140 (1985). The trial judge refused to suppress the evidence even though he found the warrant had not been signed before it was served, holding that the search warrant statute was subject to a “good faith” exception, and that such an exception was applicable here.
On appeal, Judge Short held that the search warrant was not issued within the meaning of the statute because it lacked a timely signature. Judge Short also held there was a good faith exception to the statutory warrant procedures, but that it was inapplicable here. We agree that the absence of the magistrate’s signature at the time the warrant was served invalidates it, but do not reach the issue whether there exists a “good faith” exception to the statutory warrant requirements since we find, as explained below, that no warrant was ever issued.
We have held, in the context of an arrest warrant, that such a warrant is not lawful where the issuing judicial officer failed to sign the warrant on the space provided on the warrant form. Davis v. Sanders, 40 S.C. 507, 19 S.E 138 (1894). Although the State would characterize such an omission as merely procedural or ministerial, we disagree. The Davis Court gave a persuasive explanation of the signature requirement, albeit in the context of an arrest warrant:
[W]hen it is remembered that a sheriff or other officer, who undertakes to arrest a citizen under a warrant, is bound to show his warrant, if demanded, to the person proposed to be arrested, and if he refuses to do so the arrest may be lawfully resisted [internal citation omitted], we think it would be very dangerous to the peace of society for the court to hold that a paper, which shows on its face that it is an unfinished paper…would be a sufficient justification for an arrest.
The same policy considerations apply to a search warrant, [2] and thus the lack of the issuing officer’s signature is not excusable as merely procedural or ministerial, but rather negates the existence of a warrant, creating instead “an unfinished paper.” As the DavisCourt went on to hold, the fact that the issuing officer intended to sign the warrant and had in fact signed the back was not sufficient to validate it, nor was the arrest legal despite the fact the officers who executed the arrest pursuant to the “warrant” were “entirely innocent of any intentional wrong.”
The Davis requirement that a warrant must be signed by the issuing judicial officer in order to be complete is a common law decision predicated on public policy considerations. The signature is the assurance that a judicial officer has found that law enforcement has made the requisite probable cause showing, and serves as notice to the citizen upon whom the warrant is served that it is a validly issued warrant. Without the signature, it is merely an “unfinished paper.” Davis, supra; see also DuBose v. DuBose, 90 S.C. 87, 72 S.E. 645 (1911) (“But it has been decided [in Davis] that, when an officer is performing the ministerial duty of issuing a paper on compliance with certain conditions prescribed by law, his signature at the foot of the paper he intended to sign is necessary to its validity”).
We consider also whether the unsigned warrant can be upheld in the face of § 17-13-140, the general search warrant statute. The statute contains requirements different from those mandated by the Fourth Amendment, and is in some ways “more strict” than the federal constitution. State v. McKnight, 291 S.C. 110, 352 S.E.2d 471 (1987). While we have recognized a “good faith” exception to the statute’s requirements where the officers make a good faith attempt to comply with the statute’s affidavit procedures,McKnight, supra, explaining State v. Sachs, 264 S.C. 541, 216 S.E.2d 501 (1975), we have left open the question whether a good faith exception would be applied where “the officers reasonably believe the warrant is valid when the search is made, but is subsequently determined to be invalid.” McKnight, supra. Here, we do not reach the question whether there exists a good faith exception to the statute where a defective warrant is issued, since under South Carolina law an unsigned warrant is not a warrant, and is not capable of being issued within the meaning of § 17-13-140. See also Davis, supra (officers good faith irrelevant where warrant is not signed).
The circuit court erred in refusing to suppress the evidence seized pursuant to the unsigned “warrant.” Respondent is therefore entitled to a new trial.
2. Verdict Form
In this case, the jury was given a verdict form which tracked the provisions of the trafficking statute, but did not specifically allow the jury to return a “not guilty” verdict. We agree with Judge Anderson that this was error and hold that henceforth, any verdict form given to a jury for use in a criminal case must specifically include as an option “not guilty.” We therefore overrule State v. Myers, 344 S.C. 532, 544 S.E.2d 851 (Ct. App. 2001) to the extent it holds that a jury charge can negate prejudice from the lack of a “not guilty” choice on a verdict form.
3. Trafficking Statute
Judge Short and Judge Anderson found reversible error in the trial court’s submission to the jury of the trafficking statute, while Judge Goolsby found no error. Since this case was tried and the appeal decided by the Court of Appeals, we have held that it is within the trial judge’s discretion to “submit its instructions on the law to the jury in writing.” State v. Turner, 373 S.C. 121, 644 S.E.2d 693 (2007). We caution the bench again, as we did in Turner, that this practice should be used sparingly, and only where it will aid the jury and where it will not prejudice the defendant. It is never appropriate, however, to give only part of the charge to the jury as was done in this case.
CONCLUSION
The Court of Appeals decision reversing respondent’s convictions and sentences is
AFFIRMED AS MODIFIED.
WALLER, BEATTY, JJ., and Acting Justice James E. Moore, concur. TOAL, C.J., concurring in a separate opinion.
Chief Justice Toal: Although I concur in the decision to affirm the court of appeals’ decision reversing Covert’s conviction, I write separately because I would reach this decision on different grounds.
As a primary matter, I do not find that Davis v. Sanders, 40 S.C. 507, 19 S.E. 138 (1894) controls this case. Davis was decided over one hundred years ago, prior to the passage of § 17-13-140. Moreover, the Davis Court, in the absence of any statutory authority, relied on prior case law in declaring that a warrant must be signed.[3] See State v. Vaughn, 16 S.C.L. (Harp.) 313 (1824) (holding that a warrant that was signed but not sealed was nevertheless a valid warrant). Moreover, I find it significant that the parties inDavis conceded that a warrant had to be signed, thereby leaving only the issue of whether the magistrate’s notation on the warrant constituted a signature for the Court’s determination. Accordingly, I believe that Davis is somewhat irrelevant to the facts of this case and that we must solely look to § 17-13-140 to determine the validity of this warrant.
Section 17-13-140 does not specifically require the magistrate to sign the warrant, but rather, merely requires that a magistrate “issue” the warrant. Nonetheless, a magistrate’s signature indicates that she has made the necessary probable cause finding required before issuing the warrant. Even assuming that an unsigned warrant is defective, I do not believe that this alone necessarily renders the warrant void ab initio.
This Court has held that the good faith exception to the exclusionary rule applies in cases where officers make a good faith attempt to comply with the statute’s affidavit requirements. See State v. McKnight, 291 S.C. 110, 112-13, 352 S.E.2d 471, 472 (1987) (refusing to apply the good faith exception where the officers failed to attempt to comply in good faith to the affidavit requirements);State v. Sachs, 264 S.C. 541, 559, 216 S.E.2d 501, 510 (1975) (allowing evidence to be admitted pursuant to the good faith exception where officers attempted in good faith to comply with the statutory requirements). In my view, the policy reasons for applying the good faith exception to the exclusionary rule in other cases are applicable in this case. See State v. Harvin, 345 S.C. 190, 194, 547 S.E.2d 497, 500 (2001) (recognizing that the main purpose of the exclusionary rule is the deterrence of police misconduct). Covert does not allege that the officers knew the warrant was unsigned or deliberately obtained the warrant without a signature, and the record contains no evidence that he was prejudiced by the statutory violation. Therefore, I would hold that the officers attempted in good faith to comply with § 17-13-140’s requirements and the exclusionary rule should not render the evidence inadmissible.
In my view, the fatal flaw in the State’s case is its failure to present any evidence at trial that the magistrate made a probable cause finding. As the majority observes, the signature on the warrant indicates that a judicial officer found that law enforcement made the requisite probable cause showing, a finding clearly required before a warrant may be issued. The State bore the burden of proving the validity of the warrant and, in my view, while the absence of a magistrate’s signature may be a factor in determining whether the warrant was issued upon probable cause, it is not dispositive of the determination. However, by failing to call the magistrate to testify that she issued the warrant upon finding probable cause, the State failed to present any evidence to show the warrant was valid and therefore did not carry its burden. See Sachs, 264 S.C. at 555, 216 S.E.2d at 508 (recognizing that “all that is necessary to justify the issuance of a warrant is probable cause”); see also U.S. Const. amend. IV and S.C. Const. art. I (mandating that a warrant must be supported by probable cause).
For these reasons, I would hold that the good faith exception is applicable under these circumstances, but that the State failed to carry its burden of proving the magistrate issued the warrant upon finding probable cause. Accordingly, I concur with the majority’s decision to affirm as modified the court of appeals’ opinion.
[1] The facts are fully reported in that opinion, and the verdict form is reproduced in Judge Anderson’s concurring opinion.
[2] See S.C. Code Ann. § 17-13-150 (2003) (copy of warrant and affidavit shall be furnished to person served)
[3] Specifically, the Davis Court found that the lower court properly charged the jury that “a warrant need not be under seal, yet it must be in writing, and signed by the officer issuing.” Id. at 509, 19 S.E. at 139.
Mar 11, 2012 | DUI & DWI, Uncategorized
North Carolina has consistently prided itself on having some of the toughest DWI laws in the country. With recent passage of the new “Laura’s law,” it seems clear that our state intends to maintain that status. Over the next several weeks and months, the attorneys at Reeves, Aiken & Hightower, LLP, will be posting articles detailing how this law will impact our clients. As it is new legislation, we will also be posting other competing firms’ views as all criminal defense attorneys share a common goal of seeking justice and fairness. If you have been charged with a NC DWI, we encourage you to carefully evaluate different lawyers and their credentials. We would welcome an opportunity to sit down with you and personally review your case. Compare our firms’ lawyers to any other. Then call us for a private consultation at 704-499-9000. For more information about us, please visit our website at www.rjrlaw.com.
Here is the new DWI statute “Laura’s Law”:
§ 20‑179. Sentencing hearing after conviction for impaired driving; determination of grossly aggravating and aggravating and mitigating factors; punishments.
(a) Sentencing Hearing Required. – After a conviction under G.S. 20‑138.1, G.S. 20‑138.2, a second or subsequent conviction under G.S. 20‑138.2A, or a second or subsequent conviction under G.S. 20‑138.2B, or when any of those offenses are remanded back to district court after an appeal to superior court, the judge shall hold a sentencing hearing to determine whether there are aggravating or mitigating factors that affect the sentence to be imposed.
(1) The court shall consider evidence of aggravating or mitigating factors present in the offense that make an aggravated or mitigated sentence appropriate. The State bears the burden of proving beyond a reasonable doubt that an aggravating factor exists, and the offender bears the burden of proving by a preponderance of the evidence that a mitigating factor exists.
(2) Before the hearing the prosecutor shall make all feasible efforts to secure the defendant’s full record of traffic convictions, and shall present to the judge that record for consideration in the hearing. Upon request of the defendant, the prosecutor shall furnish the defendant or his attorney a copy of the defendant’s record of traffic convictions at a reasonable time prior to the introduction of the record into evidence. In addition, the prosecutor shall present all other appropriate grossly aggravating and aggravating factors of which he is aware, and the defendant or his attorney may present all appropriate mitigating factors. In every instance in which a valid chemical analysis is made of the defendant, the prosecutor shall present evidence of the resulting alcohol concentration.
(a1) Jury Trial in Superior Court; Jury Procedure if Trial Bifurcated. –
(1) Notice. – If the defendant appeals to superior court, and the State intends to use one or more aggravating factors under subsections (c) or (d) of this section, the State must provide the defendant with notice of its intent. The notice shall be provided no later than 10 days prior to trial and shall contain a plain and concise factual statement indicating the factor or factors it intends to use under the authority of subsections (c) and (d) of this section. The notice must list all the aggravating factors that the State seeks to establish.
(2) Aggravating factors. – The defendant may admit to the existence of an aggravating factor, and the factor so admitted shall be treated as though it were found by a jury pursuant to the procedures in this section. If the defendant does not so admit, only a jury may determine if an aggravating factor is present. The jury impaneled for the trial may, in the same trial, also determine if one or more aggravating factors is present, unless the court determines that the interests of justice require that a separate sentencing proceeding be used to make that determination. If the court determines that a separate proceeding is required, the proceeding shall be conducted by the trial judge before the trial jury as soon as practicable after the guilty verdict is returned. The State bears the burden of proving beyond a reasonable doubt that an aggravating factor exists, and the offender bears the burden of proving by a preponderance of the evidence that a mitigating factor exists.
(3) Convening the jury. – If prior to the time that the trial jury begins its deliberations on the issue of whether one or more aggravating factors exist, any juror dies, becomes incapacitated or disqualified, or is discharged for any reason, an alternate juror shall become a part of the jury and serve in all respects as those selected on the regular trial panel. An alternate juror shall become a part of the jury in the order in which the juror was selected. If the trial jury is unable to reconvene for a hearing on the issue of whether one or more aggravating factors exist after having determined the guilt of the accused, the trial judge shall impanel a new jury to determine the issue.
(4) Jury selection. – A jury selected to determine whether one or more aggravating factors exist shall be selected in the same manner as juries are selected for the trial of criminal cases.
(a2) Jury Trial on Aggravating Factors in Superior Court. –
(1) Defendant admits aggravating factor only. – If the defendant admits that an aggravating factor exists, but pleads not guilty to the underlying charge, a jury shall be impaneled to dispose of the charge only. In that case, evidence that relates solely to the establishment of an aggravating factor shall not be admitted in the trial.
(2) Defendant pleads guilty to the charge only. – If the defendant pleads guilty to the charge, but contests the existence of one or more aggravating factors, a jury shall be impaneled to determine if the aggravating factor or factors exist.
(b) Repealed by Session Laws 1983, c. 435, s. 29.
(c) Determining Existence of Grossly Aggravating Factors. – At the sentencing hearing, based upon the evidence presented at trial and in the hearing, the judge, or the jury in superior court, must first determine whether there are any grossly aggravating factors in the case. Whether a prior conviction exists under subdivision (1) of this subsection, or whether a conviction exists under subdivision (d)(5) of this section, shall be matters to be determined by the judge, and not the jury, in district or superior court. If the sentencing hearing is for a case remanded back to district court from superior court, the judge shall determine whether the defendant has been convicted of any offense that was not considered at the initial sentencing hearing and impose the appropriate sentence under this section. The judge must impose the Aggravated Level One punishment under subsection (f3) of this section if it is determined that three or more grossly aggravating factors apply. The judge must impose the Level One punishment under subsection (g) of this section if it is determined that the grossly aggravating factor in subdivision (4) of this subsection applies or two of the other grossly aggravating factors apply. If the judge does not find that the aggravating factor at subdivision (4) of this subsection applies, then the judge must impose the Level Two punishment under subsection (h) of this section if it is determined that only one of the other grossly aggravating factors applies. The grossly aggravating factors are:
(1) A prior conviction for an offense involving impaired driving if:
a. The conviction occurred within seven years before the date of the offense for which the defendant is being sentenced; or
b. The conviction occurs after the date of the offense for which the defendant is presently being sentenced, but prior to or contemporaneously with the present sentencing; or
c. The conviction occurred in district court; the case was appealed to superior court; the appeal has been withdrawn, or the case has been remanded back to district court; and a new sentencing hearing has not been held pursuant to G.S. 20‑38.7.
Each prior conviction is a separate grossly aggravating factor.
(2) Driving by the defendant at the time of the offense while his driver’s license was revoked under G.S. 20‑28, and the revocation was an impaired driving revocation under G.S. 20‑28.2(a).
(3) Serious injury to another person caused by the defendant’s impaired driving at the time of the offense.
(4) Driving by the defendant while (i) a child under the age of 18 years, (ii) a person with the mental development of a child under the age of 18 years, or (iii) a person with a physical disability preventing unaided exit from the vehicle was in the vehicle at the time of the offense.
In imposing an Aggravated Level One, a Level One, or a Level Two punishment, the judge may consider the aggravating and mitigating factors in subsections (d) and (e) in determining the appropriate sentence. If there are no grossly aggravating factors in the case, the judge must weigh all aggravating and mitigating factors and impose punishment as required by subsection (f).
(c1) Written Findings. – The court shall make findings of the aggravating and mitigating factors present in the offense. If the jury finds factors in aggravation, the court shall ensure that those findings are entered in the court’s determination of sentencing factors form or any comparable document used to record the findings of sentencing factors. Findings shall be in writing.
(d) Aggravating Factors to Be Weighed. – The judge, or the jury in superior court, shall determine before sentencing under subsection (f) whether any of the aggravating factors listed below apply to the defendant. The judge shall weigh the seriousness of each aggravating factor in the light of the particular circumstances of the case. The factors are:
(1) Gross impairment of the defendant’s faculties while driving or an alcohol concentration of 0.15 or more within a relevant time after the driving. For purposes of this subdivision, the results of a chemical analysis presented at trial or sentencing shall be sufficient to prove the person’s alcohol concentration, shall be conclusive, and shall not be subject to modification by any party, with or without approval by the court.
(2) Especially reckless or dangerous driving.
(3) Negligent driving that led to a reportable accident.
(4) Driving by the defendant while his driver’s license was revoked.
(5) Two or more prior convictions of a motor vehicle offense not involving impaired driving for which at least three points are assigned under G.S. 20‑16 or for which the convicted person’s license is subject to revocation, if the convictions occurred within five years of the date of the offense for which the defendant is being sentenced, or one or more prior convictions of an offense involving impaired driving that occurred more than seven years before the date of the offense for which the defendant is being sentenced.
(6) Conviction under G.S. 20‑141.5 of speeding by the defendant while fleeing or attempting to elude apprehension.
(7) Conviction under G.S. 20‑141 of speeding by the defendant by at least 30 miles per hour over the legal limit.
(8) Passing a stopped school bus in violation of G.S. 20‑217.
(9) Any other factor that aggravates the seriousness of the offense.
Except for the factor in subdivision (5) the conduct constituting the aggravating factor shall occur during the same transaction or occurrence as the impaired driving offense.
(e) Mitigating Factors to Be Weighed. – The judge shall also determine before sentencing under subsection (f) whether any of the mitigating factors listed below apply to the defendant. The judge shall weigh the degree of mitigation of each factor in light of the particular circumstances of the case. The factors are:
(1) Slight impairment of the defendant’s faculties resulting solely from alcohol, and an alcohol concentration that did not exceed 0.09 at any relevant time after the driving.
(2) Slight impairment of the defendant’s faculties, resulting solely from alcohol, with no chemical analysis having been available to the defendant.
(3) Driving at the time of the offense that was safe and lawful except for the impairment of the defendant’s faculties.
(4) A safe driving record, with the defendant’s having no conviction for any motor vehicle offense for which at least four points are assigned under G.S. 20‑16 or for which the person’s license is subject to revocation within five years of the date of the offense for which the defendant is being sentenced.
(5) Impairment of the defendant’s faculties caused primarily by a lawfully prescribed drug for an existing medical condition, and the amount of the drug taken was within the prescribed dosage.
(6) The defendant’s voluntary submission to a mental health facility for assessment after he was charged with the impaired driving offense for which he is being sentenced, and, if recommended by the facility, his voluntary participation in the recommended treatment.
(6a) Completion of a substance abuse assessment, compliance with its recommendations, and simultaneously maintaining 60 days of continuous abstinence from alcohol consumption, as proven by a continuous alcohol monitoring system. The continuous alcohol monitoring system shall be of a type approved by the Division of Adult Correction of the Department of Public Safety.
(7) Any other factor that mitigates the seriousness of the offense.
Except for the factors in subdivisions (4), (6), (6a), and (7), the conduct constituting the mitigating factor shall occur during the same transaction or occurrence as the impaired driving offense.
(f) Weighing the Aggravating and Mitigating Factors. – If the judge or the jury in the sentencing hearing determines that there are no grossly aggravating factors, the judge shall weigh all aggravating and mitigating factors listed in subsections (d) and (e). If the judge determines that:
(1) The aggravating factors substantially outweigh any mitigating factors, the judge shall note in the judgment the factors found and his finding that the defendant is subject to the Level Three punishment and impose a punishment within the limits defined in subsection (i).
(2) There are no aggravating and mitigating factors, or that aggravating factors are substantially counterbalanced by mitigating factors, the judge shall note in the judgment any factors found and the finding that the defendant is subject to the Level Four punishment and impose a punishment within the limits defined in subsection (j).
(3) The mitigating factors substantially outweigh any aggravating factors, the judge shall note in the judgment the factors found and his finding that the defendant is subject to the Level Five punishment and impose a punishment within the limits defined in subsection (k).
It is not a mitigating factor that the driver of the vehicle was suffering from alcoholism, drug addiction, diminished capacity, or mental disease or defect. Evidence of these matters may be received in the sentencing hearing, however, for use by the judge in formulating terms and conditions of sentence after determining which punishment level shall be imposed.
(f1) Aider and Abettor Punishment. – Notwithstanding any other provisions of this section, a person convicted of impaired driving under G.S. 20‑138.1 under the common law concept of aiding and abetting is subject to Level Five punishment. The judge need not make any findings of grossly aggravating, aggravating, or mitigating factors in such cases.
(f2) Limit on Consolidation of Judgments. – Except as provided in subsection (f1), in each charge of impaired driving for which there is a conviction the judge shall determine if the sentencing factors described in subsections (c), (d) and (e) are applicable unless the impaired driving charge is consolidated with a charge carrying a greater punishment. Two or more impaired driving charges may not be consolidated for judgment.
(f3) Aggravated Level One Punishment. – A defendant subject to Aggravated Level One punishment may be fined up to ten thousand dollars ($10,000) and shall be sentenced to a term of imprisonment that includes a minimum term of not less than 12 months and a maximum term of not more than 36 months. Notwithstanding G.S. 15A‑1371, a defendant sentenced to a term of imprisonment pursuant to this subsection shall not be eligible for parole. However, the defendant shall be released from the Division of Adult Correction of the Department of Public Safety on the date equivalent to the defendant’s maximum imposed term of imprisonment less four months and shall be supervised by the Section of Prisons of the Division of Adult Correction under and subject to the provisions of Article 84A of Chapter 15A of the General Statutes and shall also be required to abstain from alcohol consumption for the four‑month period of supervision as verified by a continuous alcohol monitoring system. For purposes of revocation, violation of the requirement to abstain from alcohol or comply with the use of a continuous alcohol monitoring system shall be deemed a controlling condition under G.S. 15A‑1368.4.
The term of imprisonment may be suspended only if a condition of special probation is imposed to require the defendant to serve a term of imprisonment of at least 120 days. If the defendant is placed on probation, the judge shall impose as requirements that the defendant (i) abstain from alcohol consumption for a minimum of 120 days to a maximum of the term of probation, as verified by a continuous alcohol monitoring system pursuant to subsections (h1) and (h3) of this section, and (ii) obtain a substance abuse assessment and the education or treatment required by G.S. 20‑17.6 for the restoration of a drivers license and as a condition of probation. The judge may impose any other lawful condition of probation.
(g) Level One Punishment. – A defendant subject to Level One punishment may be fined up to four thousand dollars ($4,000) and shall be sentenced to a term of imprisonment that includes a minimum term of not less than 30 days and a maximum term of not more than 24 months. The term of imprisonment may be suspended only if a condition of special probation is imposed to require the defendant to serve a term of imprisonment of at least 30 days. If the defendant is placed on probation, the judge shall impose a requirement that the defendant obtain a substance abuse assessment and the education or treatment required by G.S. 20‑17.6 for the restoration of a driver’s license and as a condition of probation. The judge may impose any other lawful condition of probation.
(h) Level Two Punishment. – A defendant subject to Level Two punishment may be fined up to two thousand dollars ($2,000) and shall be sentenced to a term of imprisonment that includes a minimum term of not less than seven days and a maximum term of not more than 12 months. The term of imprisonment may be suspended only if a condition of special probation is imposed to require the defendant to serve a term of imprisonment of at least seven days. If the defendant is placed on probation, the judge shall impose a requirement that the defendant obtain a substance abuse assessment and the education or treatment required by G.S. 20‑17.6 for the restoration of a driver’s license and as a condition of probation. The judge may impose any other lawful condition of probation.
(h1) The judge may impose, as a condition of probation for defendants subject to Level One or Level Two punishments, that the defendant abstain from alcohol consumption for a minimum of 30 days, to a maximum of the term of probation, as verified by a continuous alcohol monitoring system. The defendant’s abstinence from alcohol shall be verified by a continuous alcohol monitoring system of a type approved by the Division of Adult Correction of the Department of Public Safety.
(h2) Repealed by Session Laws 2011‑191, s.1, effective December 1, 2011, and applicable to offenses committed on or after that date.
(h3) Any fees or costs paid pursuant to subsection (h1) of this section shall be paid to the clerk of court for the county in which the judgment was entered or the deferred prosecution agreement was filed. Fees or costs collected under this subsection shall be transmitted to the entity providing the continuous alcohol monitoring system.
(i) Level Three Punishment. – A defendant subject to Level Three punishment may be fined up to one thousand dollars ($1,000) and shall be sentenced to a term of imprisonment that includes a minimum term of not less than 72 hours and a maximum term of not more than six months. The term of imprisonment may be suspended. However, the suspended sentence shall include the condition that the defendant:
(1) Be imprisoned for a term of at least 72 hours as a condition of special probation; or
(2) Perform community service for a term of at least 72 hours; or
(3) Repealed by Session Laws 2006‑253, s. 23, effective December 1, 2006, and applicable to offenses committed on or after that date.
(4) Any combination of these conditions.
If the defendant is placed on probation, the judge shall impose a requirement that the defendant obtain a substance abuse assessment and the education or treatment required by G.S. 20‑17.6 for the restoration of a driver’s license and as a condition of probation. The judge may impose any other lawful condition of probation.
(j) Level Four Punishment. – A defendant subject to Level Four punishment may be fined up to five hundred dollars ($500.00) and shall be sentenced to a term of imprisonment that includes a minimum term of not less than 48 hours and a maximum term of not more than 120 days. The term of imprisonment may be suspended. However, the suspended sentence shall include the condition that the defendant:
(1) Be imprisoned for a term of 48 hours as a condition of special probation; or
(2) Perform community service for a term of 48 hours; or
(3) Repealed by Session Laws 2006‑253, s. 23, effective December 1, 2006, and applicable to offenses committed on or after that date.
(4) Any combination of these conditions.
If the defendant is placed on probation, the judge shall impose a requirement that the defendant obtain a substance abuse assessment and the education or treatment required by G.S. 20‑17.6 for the restoration of a driver’s license and as a condition of probation. The judge may impose any other lawful condition of probation.
(k) Level Five Punishment. – A defendant subject to Level Five punishment may be fined up to two hundred dollars ($200.00) and shall be sentenced to a term of imprisonment that includes a minimum term of not less than 24 hours and a maximum term of not more than 60 days. The term of imprisonment may be suspended. However, the suspended sentence shall include the condition that the defendant:
(1) Be imprisoned for a term of 24 hours as a condition of special probation; or
(2) Perform community service for a term of 24 hours; or
(3) Repealed by Session Laws 2006‑253, s. 23, effective December 1, 2006, and applicable to offenses committed on or after that date.
(4) Any combination of these conditions.
If the defendant is placed on probation, the judge shall impose a requirement that the defendant obtain a substance abuse assessment and the education or treatment required by G.S. 20‑17.6 for the restoration of a driver’s license and as a condition of probation. The judge may impose any other lawful condition of probation.
(k1) Credit for Inpatient Treatment. – Pursuant to G.S. 15A‑1351(a), the judge may order that a term of imprisonment imposed as a condition of special probation under any level of punishment be served as an inpatient in a facility operated or licensed by the State for the treatment of alcoholism or substance abuse where the defendant has been accepted for admission or commitment as an inpatient. The defendant shall bear the expense of any treatment unless the trial judge orders that the costs be absorbed by the State. The judge may impose restrictions on the defendant’s ability to leave the premises of the treatment facility and require that the defendant follow the rules of the treatment facility. The judge may credit against the active sentence imposed on a defendant the time the defendant was an inpatient at the treatment facility, provided such treatment occurred after the commission of the offense for which the defendant is being sentenced. This section shall not be construed to limit the authority of the judge in sentencing under any other provisions of law.
(l) Repealed by Session Laws 1989, c. 691.
(m) Repealed by Session Laws 1995, c. 496, s. 2.
(n) Time Limits for Performance of Community Service. – If the judgment requires the defendant to perform a specified number of hours of community service, a minimum of 24 hours must be ordered.
(o) Evidentiary Standards; Proof of Prior Convictions. – In the sentencing hearing, the State shall prove any grossly aggravating or aggravating factor beyond a reasonable doubt, and the defendant shall prove any mitigating factor by the greater weight of the evidence. Evidence adduced by either party at trial may be utilized in the sentencing hearing. Except as modified by this section, the procedure in G.S. 15A‑1334(b) governs. The judge may accept any evidence as to the presence or absence of previous convictions that he finds reliable but he shall give prima facie effect to convictions recorded by the Division or any other agency of the State of North Carolina. A copy of such conviction records transmitted by the police information network in general accordance with the procedure authorized by G.S. 20‑26(b) is admissible in evidence without further authentication. If the judge decides to impose an active sentence of imprisonment that would not have been imposed but for a prior conviction of an offense, the judge shall afford the defendant an opportunity to introduce evidence that the prior conviction had been obtained in a case in which he was indigent, had no counsel, and had not waived his right to counsel. If the defendant proves by the preponderance of the evidence all three above facts concerning the prior case, the conviction may not be used as a grossly aggravating or aggravating factor.
(p) Limit on Amelioration of Punishment. – For active terms of imprisonment imposed under this section:
(1) The judge may not give credit to the defendant for the first 24 hours of time spent in incarceration pending trial.
(2) The defendant shall serve the mandatory minimum period of imprisonment and good or gain time credit may not be used to reduce that mandatory minimum period.
(3) The defendant may not be released on parole unless he is otherwise eligible, has served the mandatory minimum period of imprisonment, and has obtained a substance abuse assessment and completed any recommended treatment or training program or is paroled into a residential treatment program.
With respect to the minimum or specific term of imprisonment imposed as a condition of special probation under this section, the judge may not give credit to the defendant for the first 24 hours of time spent in incarceration pending trial.
(q) Repealed by Session Laws 1991, c. 726, s. 20.
(r) Supervised Probation Terminated. – Unless a judge in his discretion determines that supervised probation is necessary, and includes in the record that he has received evidence and finds as a fact that supervised probation is necessary, and states in his judgment that supervised probation is necessary, a defendant convicted of an offense of impaired driving shall be placed on unsupervised probation if he meets three conditions. These conditions are that he has not been convicted of an offense of impaired driving within the seven years preceding the date of this offense for which he is sentenced, that the defendant is sentenced under subsections (i), (j), and (k) of this section, and has obtained any necessary substance abuse assessment and completed any recommended treatment or training program.
When a judge determines in accordance with the above procedures that a defendant should be placed on supervised probation, the judge shall authorize the probation officer to modify the defendant’s probation by placing the defendant on unsupervised probation upon the completion by the defendant of the following conditions of his suspended sentence:
(1) Community service; or
(2) Repealed by Session Laws 1995 c. 496, s. 2.
(3) Payment of any fines, court costs, and fees; or
(4) Any combination of these conditions.
(s) Method of Serving Sentence. – The judge in his discretion may order a term of imprisonment to be served on weekends, even if the sentence cannot be served in consecutive sequence. However, if the defendant is ordered to a term of 48 hours or more, or has 48 hours or more remaining on a term of imprisonment, the defendant shall be required to serve 48 continuous hours of imprisonment to be given credit for time served.
(1) Credit for any jail time shall only be given hour for hour for time actually served. The jail shall maintain a log showing number of hours served.
(2) The defendant shall be refused entrance and shall be reported back to court if the defendant appears at the jail and has remaining in his body any alcohol as shown by an alcohol screening device or controlled substance previously consumed, unless lawfully obtained and taken in therapeutically appropriate amounts.
(3) If a defendant has been reported back to court under subdivision (2) of this subsection, the court shall hold a hearing. The defendant shall be ordered to serve his jail time immediately and shall not be eligible to serve jail time on weekends if the court determines that, at the time of his entrance to the jail,
a. The defendant had previously consumed alcohol in his body as shown by an alcohol screening device, or
b. The defendant had a previously consumed controlled substance in his body.
It shall be a defense to an immediate service of sentence of jail time and ineligibility for weekend service of jail time if the court determines that alcohol or controlled substance was lawfully obtained and was taken in therapeutically appropriate amounts.
Mar 11, 2012 | Criminal Defense, Uncategorized
This SC Supreme Court case deals with a post-conviction relief petition (PCR) by a criminal defendant who claimed he was not properly advised by his lawyer. The Court found against the PCR relief, but this case also shows what can happen when probation is violated and subsequently revoked. In many criminal cases, the defendant is given a long sentence but a fairly short period of probation. As long as the defendant follows the rules, his probation term will end, and he is free to move on with his life. However, any significant violation can cause the probation to be revoked, and the defendant will be sent to prison for his original sentence. In many cases, a probation violation hearing can be defended. Better make sure your attorney knows what to argue here. The stakes of being sent to prison are too high to risk an inexperienced lawyer.
At Reeves, Aiken & Hightower LLP, our attorneys have over 70 years of combined trial experience in both civil and criminal courts. We are available by mobile phone in the evenings, on weekends, and even holidays. Our lawyers are licensed in both South Carolina and North Carolina and are effective criminal trial attorneys. We are not afraid to go to Court and often do. Tyler Burns is a former 16th Circuit (York County) prosecutor, and Art Aiken is a accomplished criminal attorney who has tried virtually every type of criminal case in both state and federal courts. And, Bea Hightower is a former Richland County public defender in Columbia. We welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials and experience to any other law firm. Then call us today at 803-548-4444 for a private consultation. Or visit our firm’s website at www.rjrlaw.com
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Harold B. Turner, Petitioner,
v.
State of South Carolina, Respondent.
ON WRIT OF CERTIORARI
Appeal from Spartanburg County
John M. Milling, Circuit Court Judge
Opinion No. 26708
Submitted April 22, 2009 – Filed August 24, 2009
AFFIRMED
Deputy Chief Appellate Defender Wanda H. Carter, of South Carolina Commission on Indigent Defense, of Columbia, for Petitioner.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General Prentiss Counts, all of Columbia, for Respondent.
CHIEF JUSTICE TOAL: In this case, the Court granted a writ of certiorari to review the post-conviction relief (PCR) court’s denial of relief to Petitioner Harold B. Turner.
FACTUAL/PROCEDURAL BACKGROUND
In 1994, Petitioner pled guilty to second degree burglary and was sentenced to fifteen years imprisonment, suspended upon time served and five years probation. Subsequently, his probation was revoked. Petitioner did not directly appeal his probation revocation. Petitioner filed an application for PCR alleging probation counsel was ineffective for failing to advise him of his right to a direct appeal.
At the PCR hearing, Petitioner testified that after the revocation hearing, he asked probation counsel, “What can we do?” and that counsel responded “the judge made his ruling,” and testified that he would have requested an appeal if he had known his rights. Probation counsel testified that there were no appealable issues stemming from the probation revocation and that Petitioner never inquired about an appeal. The PCR court found that there were no non-frivolous grounds for an appeal and that no extraordinary circumstances existed and denied Petitioner relief.
This Court granted Petitioner’s request for a writ of certiorari, and Petitioner presents the following issue for review:
Did the PCR court err in finding probation counsel was not ineffective in failing to advise Petitioner of his right to a direct appeal from his probation revocation?
STANDARD OF REVIEW
The burden of proof is on the applicant in post-conviction proceedings to prove the allegations in his application. Butler v. State, 286 S.C. 441, 442, 334 S.E.2d 813, 814 (1985). On certiorari, the PCR court’s ruling should be upheld if it is supported by any evidence of probative value in the record. Cherry v. State, 300 S.C. 115, 119, 386 S.E.2d 624, 626 (1989). However, this Court will reverse the PCR court’s decision when it is controlled by an error of law. Pierce v. State, 338 S.C. 139, 145, 526 S.E.2d 222, 225 (2000).
LAW/ANALYSIS
As a primary matter, we must first address the basis upon which Petitioner claims he is entitled to relief. Since Petitioner seeks relief due to ineffective assistance of counsel, Petitioner bases his PCR application on a violation of his Sixth Amendment right to counsel. See Duckson v. State, 355 S.C. 596, 598, 586 S.E.2d 576, 577 (2003), citing McKnight v. State, 320 S.C. 356, 465 S.E.2d 352 (1995) (observing that an ineffective assistance claim is premised on the violation of an individual’s Sixth Amendment right to counsel). However, a probationer does not have a Sixth Amendment right to counsel.[1] Rather, the right to counsel may arise pursuant to the Due Process Clause under the Fifth and Fourteenth Amendments. See Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973).[2] In South Carolina, however, all persons charged with probation violations have a right to counsel and must be informed of this right pursuant to court rules and case law. Barlet v. State, 288 S.C. 481, 483, 343 S.E.2d 620, 621 (1986); Rule 602(a), SCACR.
In Duckson, the parolee filed an application for PCR alleging that he received ineffective assistance of counsel at his parole revocation hearing. In South Carolina, a parolee has a statutory right to have counsel present at a parole revocation hearing[3] but, similar to a probationer, does not have a Sixth Amendment right to counsel. As Duckson makes clear, neither a parolee nor a probationer has a Sixth Amendment right to counsel. Accordingly, this Court held that because the parolee could not assert a Sixth Amendment violation and because he did not contend his due process rights were violated, the parolee failed to allege the parole revocation was unlawful and thus failed to state a claim cognizable in a PCR action.
We find the Duckson analysis instructive to the instant case. Although parole revocation and probation revocation are different types of proceedings,[4] to the extent there is a constitutional right to counsel in either context, it exists only by virtue of the Due Process Clause. See Gagnon, 411 U.S. 778, 782 n.3 (observing that, despite minor differences between parole and probation, the revocation of probation is constitutionally indistinguishable from the revocation of parole). Petitioner has only alleged a Sixth Amendment violation, namely that probation counsel was ineffective in failing to inform him of his right to a direct appeal, and thus, under Duckson, it appears he has failed to state a cognizable claim in a PCR action.
However, Duckson is distinguishable from the instant case in an important respect. Unlike a parolee, we have held that, pursuant to court rule, a probationer has a right to counsel. See Barlet and Rule 602(a). A parolee’s statutory right to have counsel present is not comparable to a probationer’s absolute right under state law to appointed counsel. We now hold that because a probationer has a right to counsel, albeit not a Sixth Amendment right, the same analysis for ineffectiveness that applies in other PCR proceedings involving claims against counsel should, by analogy, apply in PCR proceedings involving claims against probation counsel. In our view, this approach does not elevate form over substance by, for example, allowing a probationer to proceed on a due process violation but not allowing him to proceed on an ineffective assistance claim despite the fact that both claims stem from the failure to be informed of his right to appeal. Additionally, this approach eases confusion as well as the burden on the lower courts by providing a uniform standard.[5]
To this end, we must determine whether, under our Strickland jurisprudence, probation counsel was ineffective for failing to inform Petitioner of his right to appeal the revocation of his probation. We hold that he was not.
Following a trial, counsel must inform a defendant who has been found guilty of a crime of the possibility of an appeal and the method for taking an appeal. Frasier v. State, 306 S.C. 158, 161, 410 S.E.2d 572, 574 (1991). In a plea proceeding, however, there is no requirement that plea counsel inform a defendant of the right to a direct appeal absent extraordinary circumstances. Weathers v. State, 319 S.C. 59, 61, 459 S.E.2d 838, 839 (1995); see also Roe v. Flores-Ortega, 528 U.S. 470 (2000) (holding that counsel has a constitutional duty to inform a defendant of his right to appeal a guilty plea if there is reason to think that a rational defendant would want to appeal or that the defendant demonstrated an interest in appealing).[6]
We hold that probation counsel is not required to inform a probationer of his right to an appeal absent extraordinary circumstances. This holding is in accord with counsel’s duties at a plea hearing. See Weathers, 319 S.C. at 61, 459 S.E.2d at 839 (holding that, “absent extraordinary circumstances, there is no constitutional requirement that a defendant be informed of the right to a direct appeal from a guilty plea.”). In our view, a probationer should not be afforded additional protections in a probation revocation hearing, a proceeding that is not a stage of criminal prosecution and that occurs after sentencing, which are not constitutionally mandated in a guilty plea hearing. In other words, probation counsel is not held to a higher performance standard than that imposed upon plea counsel.
In the instant case, the PCR court found probation counsel’s testimony more credible than Petitioner’s testimony. Additionally, there is evidence in the record to support the PCR court’s finding that there were no non-frivolous grounds for an appeal and that no extraordinary circumstances existed. Accordingly, because Petitioner failed to show extraordinary circumstances, he is not entitled to relief.
CONCLUSION
For these reasons, we affirm the PCR court’s order denying Petitioner relief.
WALLER, PLEICONES, BEATTY and KITTREDGE, JJ., concur.
[1] In Huckaby v. State, 305 S.C. 331, 408 S.E.2d 242 (1991), we held that a probationer must be informed of his right to counsel and he must make a willing and knowing waiver of counsel. We also stated that “a probationer retains his full Sixth Amendment right to counsel.” Id. at 335, 408 S.E.2d at 244. Because a probationer does not have a Sixth Amendment right to counsel, this statement is incorrect, and any interpretation of the opinion asserting that a probationer is afforded the same constitutional protections as an accused is erroneous. A South Carolina probationer’s right to counsel in a probation revocation hearing is grounded in our case law and court rules. A constitutional right to counsel may arise pursuant to the Due Process Clause, but cannot arise pursuant to the Sixth Amendment.
[2] In Gagnon v. Scarpelli, the Supreme Court held that whether a probationer has a constitutional right to counsel in a revocation hearing should be decided on a case-by-case basis, taking into consideration the complexity of alleged violations and whether the probationer can meaningfully contest the alleged violations.
[3] S.C. Code Ann. § 24-21-50 (Supp. 2002).
[4] Parole eligibility is a collateral consequence of sentencing and is a matter that falls within the province of the Board of Probation, Parole, and Pardon Services. Brown v. State, 306 S.C. 381, 382, 412 S.E.2d 399, 400 (1991); S.C. Code Ann. § 24-21-13 (Supp. 2006). Probation, on the other hand, is a matter within the jurisdiction of the trial court and is judicially-imposed at the time of sentencing. Duckson, 355 S.C. at 598 n. 2, 586 S.E.2d at 578 n. 2; S.C. Code Ann. § 24-21-450 (Supp. 2006).
[5] Our holding today does not alter our PCR jurisprudence regarding claims of ineffective assistance of counsel, nor should it be interpreted as creating additional rights to PCR applicants. Indeed, this Court has granted relief based on “ineffective assistance” of PCR counsel despite the fact that the right to PCR counsel arises from Rule 71.1, SCRCP, and not from the constitution. See e.g., Washington v. State, 324 S.C. 232, 478 S.E.2d 833 (1996) (granting PCR where the defendant alleged ineffective assistance of PCR counsel due to so many procedural irregularities) and Austin v. State, 305 S.C. 453, 409 S.E.2d 395 (1991) (recognizing that the constitutional right to counsel does not extend to discretionary appeals on collateral attack, but allowing a PCR applicant to receive a belated appeal from the denial of his initial PCR application where first PCR counsel failed to file a notice of appeal); but see Aice v. State, 305 S.C. 448, 451, 409 S.E.2d 392, 394 (1991) (holding that an allegation that prior PCR counsel was ineffective is not per se a sufficient reason allowing for a successive PCR application).
[6] Although decided prior to Flores-Ortega, the Weathers analysis is compatible with the Flores-Ortega analysis and remains good law.
Mar 11, 2012 | DUI & DWI, Uncategorized
Recently, a new, much tougher DWI law came into effect in NC. The DWI attorneys at Reeves, Aiken & Hightower, LLP, will be evaluating how this new law will potentially impact their clients charged with DWI. Because this is new legislation, we will be posting the analysis of other law firms throughout the state for their views. While individual law firms may compete for cases, it is the shared goal of all criminal defense lawyers to see that justice is done for their clients. When charged with a DWI, it is important that you carefully research criminal defense firms in your area. We invite you to compare the credentials of the firm and their lawyers. Make a considered decision. Your choice of which attorney to represent you in court can be critical, especially in NC where the laws are some of the strictest in the country. We would welcome an opportunity to sit down and meet with you to personally review your case. Call us today at 704-499-9000 or visit our firm’s website at www.rjrlaw.com.
Here is the posting featuring Damon Chetson of Raleigh which provides an excellent “first glance” perspective of “Laura’s Law”:
New North Carolina DWI Law Dramatically Increases Punishments for Drunk Drivers
Recent enhancements to the North Carolina Driving While Impaired (DWI) law are set to go into effect in December, 2011, and dramatically increase punishments for people convicted of certain types of DWI offenses.
Raleigh, NC (PRWEB) July 31, 2011
A recent bill signed into law by Governor Bev Perdue dramatically expands punishments for people convicted of Driving While Impaired (DWI) in North Carolina.
The law – called Laura’s Law – increases punishments for DWI offenders in North Carolina by adding a new level of punishment called Aggravated Level One.
Under the law, a person who is convicted of a North Carolina DWI and who has three or more grossly aggravating factors is sentenced as an Aggravated Level One.
Aggravated Level One imposes punishments of up to three years in prison and up to $10,000 in fines, in addition to other punishments including post-release supervision which requires complete abstenance from alcohol consumption.
In addition, the new law imposes other penalties. As of December 1, 2011, the new law requires a judge to impose Level One punishment for someone who has been convicted with a DWI and who has a companion in the car under the age of 18.
“These punishment enhancements are quite severe,” says Raleigh criminal lawyer Damon Chetson. “For instance, a young person who is convicted of a DWI and has a 17-year-old friend in the car at the time of the DWI will be sentenced as a Level One.”
Level One punishments require at least 30 days in jail as a special condition of probation.
“It’s clear that the North Carolina General Assembly is taking a hard line against drunk driving,” adds Mr. Chetson. “It’s also clear that someone charged with a DWI needs to find a good attorney to help defend against these charges.”
Since the 1990s, North Carolina has progressively increased punishments and toughened its DWI laws. In addition, many District Attorneys have policies against dropping charged DWIs.
“Even marginal or weak DWI cases are headed for trial in many counties,” Raleigh DWI lawyer Damon Chetson notes. “Most DAs simply refuse to drop or dismiss DWIs, which makes these new punishment enhancements all the more problematic for defendants.”
The changes to the laws are set to go into effect December 1, 2011, and would apply to any DWI committed on or after that date.
There are many other changes to a law. Mr. Chetson recommends consulting with a criminal defense lawyer about your case before making decisions about how to proceed.
Mar 11, 2012 | Car Accidents, Personal Injury, Uncategorized
With spring here and summer months rapidly approaching, this article from our friends at News 14 should remind us all of the need to be safe on the water. Whether boating or skiing on Lake Wylie, Lake Norman, or Lake Murray, please be mindful of others and always follow the rules. Also, every year, people are injured or worse from those who have too much to drink while operating speed boats or personal water crafts (PWC). The attorneys at Reeves, Aiken & Hightower, LLP, wish everyone a great summer. Be Safe. Get Home.
At Reeves, Aiken & Hightower, LLP, all of our attorneys are seasoned trial lawyers with over 70 years combined experience. Whether it is criminal or civil, our litigators are regularly in Court fighting for our clients. Two of our firm’s partners, Art Aiken and Robert Reeves, are inducted lifetime members of the Million Dollar Advocates Forum. Mr. Reeves has also been named one of the Top 100 lawyers for South Carolina in 2012 by the National Trial Lawyers Organization. Our attorneys include a former SC prosecutor, a former public defender, a former NC District Attorney intern, a former Registered Nurse (RN), and former insurance defense attorneys. As a result of their varied backgrounds, they understand the potential criminal, insurance, and medical aspects of complex injury cases. We would welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials to any other law firm. Then call us today at 803-548-4444 or 704-499-9000 for a private consultation. Or visit our firm’s website at www.rjrlaw.com
Suspects wanted in boat hit-and-run on Lake Wylie
By: News 14 Carolina Staff
CHARLOTTE – Police and South Carolina wildlife officials are looking for four people involved in a boating accident on Lake Wylie.
Two fishermen said they were near the Buster Boyd Bridge Saturday evening when they saw a boat heading right for them. The boat hit the fishermen, knocking one of them into the water.
Three people from the other boat also fell in, but they climbed back into their boat and took off, leaving the two fishermen stranded in the dark. The fishermen are OK, but now they’re offering their own money for information leading to an arrest.
Dan Jarrell, who lives on the lake, saw the whole thing.
“You could hear him scream for help,” Jarrell said.
He jumped in his boat to go help.
“The one boat was sitting still and the other boat was coming down stream about that speed and they hit each other,” Jarrell said. “It was loud enough to get everybody’s attention.”
Authorities describe the boat as a white 16- or 17-foot Neptune-style Walkabout, an open-bow boat. It should have very visible damage to the left front side.
The South Carolina Division of Natural Resources is checking local marinas in search of the vessel.
“So far, we haven’t come up with a boat,” Private 1st Class Jeff Vissage said.
But authorities are asking everyone to be on the lookout, because they believe the boat will show up somewhere soon.
“Maybe someone on that boat will start getting a guilty feeling and call us and say, ‘Hey, this isn’t right. I want to do the right thing.'” Vissage said.
Anyone who sees the boat should call York County Crime Stoppers at 1-877-409-4321.
