Mar 5, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation
This SC Supreme Court case addresses the distinction between errors made when completing employment applications and outright fraud which can deny workers’ compensation benefits. In these difficult economic times, it may be tempting to “hedge” on questions. Other questions may be badly worded and hard to understand. Nevertheless, it is important to your own safety not to apply for a job that puts your health at risk. If you do get a job and get hurt, the answers on the intitial employment application may come back to challenge your claim. But remember, your employer has to prove three (3) elements to defeat your claim. Better make sure your workers’ compensation attorney understands these complex issues and is willing to fight for you in court. 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 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
Lawrence Brayboy, Employee, Respondent,
v.
WorkForce, Employer and American Home Assurance, Carrier, Defendants,
Of Whom WorkForce, Employer, is the Appellant.
Appeal From Charleston County
R. Markley Dennis, Jr., Circuit Court Judge
Opinion No. 26675
Heard April 9, 2009 – Filed June 22, 2009
REVERSED
Kirsten L. Barr, of Mt. Pleasant, for Appellant.
John S. Nichols, of Columbia and Matthew Jackson, of North Charleston, for Respondent.
JUSTICE KITTREDGE: In this workers’ compensation case, claimant Lawrence Brayboy made material misrepresentations on his employment application. Subsequently, Brayboy claimed workers’ compensation benefits, which the Workers’ Compensation Commission awarded. The circuit court upheld the award on the basis of the substantial evidence standard of review. Because the issue of Brayboy’s employment status is jurisdictional, the Court makes findings based on its view of the preponderance of the evidence. We find the employer, WorkForce, established the three-factor test in Cooper v. McDevitt & Street Co., 260 S.C. 463, 468, 196 S.E.2d 833, 835 (1973), and reverse.
I.
On April 18, 2003, Brayboy sustained a back injury, which required lumbar fusion surgery. On the day of the injury, Brayboy moved a lot of lumber and while removing a chain link fence, he felt a terrible pull in his back. Brayboy worked the entire day, which was a Friday, and reported the injury on Monday. Subsequently, Brayboy filed a workers’ compensation claim against his putative employer, WorkForce.
Brayboy’s employment application included the following disclaimers:
If I do not give accurate and truthful information on this Medical History Questionnaire, which forms the second and final part of my employment agreement, the entire employment agreement shall be considered null and void.
MISREPRESENTATIONS AS TO PREEXISTING PHYSICAL OR MENTAL CONDITIONS MAY CAUSE FORFEITURE OF YOUR WORKERS’ COMPENSATION BENEFITS.
(emphasis in original). Notably, Brayboy signed his name under these cautionary statements. Despite these warnings, Brayboy responded in the negative to all questions inquiring if Brayboy had prior back injuries, physical defects, medical conditions, or previous workers’ compensation claims. However, at the workers’ compensation hearing, Brayboy testified about multiple prior physical problems. These conditions included a back injury while in the Navy, a back injury in 1996 resulting in a workers’ compensation claim, and a pinched nerve in 1996.
Specifically, during his service in the Navy in the early 1970s, Brayboy fell, slid on the ship’s deck, and hit a rail. According to Brayboy, the Navy x-rayed his back and gave him medicine for treatment. The Navy also diagnosed Brayboy with a back deformity he had since birth — a missing piece of bone. Brayboy further stated he was honorably discharged in 1973 due to his back defect.
Notably, since the 1970s, Brayboy has received benefits from the Department of Veterans’ Administration (VA). The impairment rating increased from ten to twenty percent due to a pinched nerve. Following the 2003 injury, the VA raised Brayboy’s disability rating from twenty to forty percent as the “service connected condition(s) has/have worsened.”
Brayboy further testified he filed a workers’ compensation claim in 1996 while working for McCrory Construction. The claim arose from an accident when Brayboy was in a hole thirty to forty feet deep taking measurements while other workers poured concrete for a parking garage. Brayboy stated a backhoe was too close to the edge of the hole, and “[the hole] collapsed, and I was pulled out by several of my workers.” This accident injured Brayboy’s middle to low back and right ankle.
Brayboy filed a workers’ compensation claim for this injury, received a settlement for this claim, and was given a five percent impairment rating for his back as well as five percent for his ankle. Brayboy testified in deposition that his current back pain was “primarily in the same area” as the cave-in injury; however, at the hearing, he disputed the similarity of the injuries. Additionally, Brayboy testified he suffered a pinched nerve in his right hip in 1996. This was unrelated to the cave-in and was due to wearing a heavy tool belt.
Brayboy testified he did not report any of his prior injuries to WorkForce as he did not feel the injuries were relevant to a construction job. Also, Brayboy stated he did not include the cave-in injury as it had “cleared up very quickly.”
The single commissioner found a compensable injury and Brayboy credible when testifying he filled out the employment application in adherence to his belief he was neither permanently impaired nor disabled. The Workers’ Compensation Commission upheld the award of the single commissioner. The circuit court affirmed.
WorkForce appealed and the court of appeals issued an unpublished opinion reversing. Following a petition for rehearing, the court of appeals withdrew its opinion and requested certification under Rule 204(b), SCACR. We granted certification.
II.
The existence of an employment relationship is a jurisdictional issue for purposes of workers’ compensation benefits reviewable under the preponderance of the evidence standard of review. Glass v. Dow Chem. Co., 325 S.C. 198, 201-02, 482 S.E.2d 49, 51 (1997); Vines v. Champion Bldg. Prods., 315 S.C. 13, 16, 431 S.E.2d 585, 586 (1993); Givens v. Steel Structures, Inc., 279 S.C. 12, 13, 301 S.E.2d 545, 546 (1983); Cooper v. McDevitt & St. Co., 260 S.C. 463, 466, 196 S.E.2d 833, 834 (1973); Chavis v. Watkins,256 S.C. 30, 32, 180 S.E.2d 648, 649 (1971); Hon. Jean Hoefer Toal et al., Appellate Practice in South Carolina 170 (2d ed. 2002).
We must determine if Brayboy was an employee at the time of his injury and thus eligible for workers’ compensation benefits. Alewine v. Tobin Quarries, Inc., 206 S.C. 103, 109, 33 S.E.2d 81, 83 (1945) (“No award under the [Workers’ Compensation] Act is authorized unless the employer-employee relationship existed at the time of the alleged injury for which claim is made. This relation is contractual in character . . . .”). An employee is statutorily defined in section 42-1-130 of the South Carolina Code (Supp. 2008) as “every person engaged in an employment under any appointment, contract of hire, or apprenticeship, expressed or implied, oral or written . . . .” Brayboy asserts his status as an employee as a result of the contract for hire with WorkForce. WorkForce relies on the principle that an employment relationship may be vitiated when there is a material misrepresentation in the employment contract. Givens, 279 S.C. at 13, 301 S.E.2d at 546.
In Cooper, this Court set forth three necessary factors for a material misrepresentation in the employment application to vitiate the employment relationship:
(1) The employee must have knowingly and wilfully made a false representation as to his physical condition.
(2) The employer must have relied upon the false representation and this reliance must have been a substantial factor in the hiring.
[and]
(3) There must have been a causal connection between the false representation and the injury.
260 S.C. at 468, 196 S.E.2d at 835.
We are firmly convinced that WorkForce has established all three factors. First, Brayboy failed to report a host of prior back problems, as well as a prior workers’ compensation claim for an injury to his back. The willful nature of Brayboy’s false responses pervades the record. Brayboy admits he provided false information on the employment application. The suggestion that Brayboy could make material misrepresentations on his employment application because he believed he was fit for construction work is a specious position.
Turning to part two of the test, WorkForce presented credible evidence it relies heavily on the employment application. In this regard, WorkForce’s reliance is twofold: the employment application is important in the hiring and placement decisions. Clearly, the questionnaire portion of the application protects the employer and employee. Had Brayboy given truthful information, WorkForce would have been able to give him suitable job assignments, which would not have included heavy lifting. Even Brayboy at one point conceded the importance of providing truthful information on the employment application when he stated, “[WorkForce] wouldn’t want to put a person with impairments or disabilities on a construction job that [he] couldn’t handle.” We find WorkForce detrimentally relied on Brayboy’s fraudulent application.[1] Small v. Oneita Indus., 318 S.C. 553, 554-55, 459 S.E.2d 306, 306-07 (1995) (noting an agent of the employer testified Small’s prior injury would affect job placement decisions, not hiring decisions, and affirming the denial of workers’ compensation benefits due to a false representation on an employment application).
Concerning the third factor, we find irrefutable evidence of a causal connection between the false information and the aggravation of his pre-existing back injury. Brayboy conceded that the April 2003 injury was in “primarily in the same area” as the 1996 cave-in injury. The April 2003 injury is also directly linked to his military disability, as evidenced by the VA raising Brayboy’s disability rating from twenty to forty percent as the “service connected condition(s) has/have worsened.”
Pursuant to Cooper, we hold Brayboy’s fraudulent responses on his employment application vitiated his employment relationship and barred his recovery of workers’ compensation benefits.
REVERSED.
[1] WorkForce provides temporary employment and, therefore, a WorkForce employee may be assigned to various jobs during their employment. On the day of his alleged injury, Brayboy was assigned to heavy labor, the very type of assignment WorkForce claims it would not have given Brayboy had he been truthful in his employment application.
Mar 4, 2012 | Car Accidents, Personal Injury, Uncategorized, Wrongful Death
This SC Supreme Court case addresses “natural” v. “artificial” hazards associated with roadway defects. Dangerous roadside conditions, such as “ruts,” occur as part of the normal “wear and tear” of public use. Sadly, a moment of inattention by a driver can result in a tire going off of the road. When the driver attempts to steer back onto the road, an “over correction” can occur and cause that vehicle to cross the center line and hit oncoming traffic “head on.” That is what happened in this case. Serious injury and wrongful death occurred. In an attempt to locate additional insurance coverage, the plaintiff’s lawyers tried to hold a landowner liable because their driveway “abutted” with the public highway. The Court held that without some “actionable negligence” on the landowner’s part, there was no liability, not even a duty owed to drivers. Other cases where liability is present is where contractors engage in some type of road repair or addition and create a dangerous road condition. The SC Department of Transportation is also responsible for public roadway maintenance but only after they are notified of a defective condition or become aware of same through its routine inspection process. We have prosecuted serious automobile and motorcyle accident cases where we alleged negligence against the SCDOT. Sadly, SC has some very dangerous roads as a result of poor initial construction and/or abnormal “wear and tear” over the years. These cases are always aggressively defended and the State is protected by a “statutory cap” on damages. Better make sure your personal injury lawyer knows what is required to pursue such a claim. There is too much at stake in a serious injury case to risk an inexperienced attorney.
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, we 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 at 803-548-4444 today for a private consultation. Or visit our firm’s website at www.rjrlaw.com
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Ronald Earl Skinner, Appellant,
v.
South Carolina Department of Transportation, Linda Drake, as Personal Representative for the Estate of Kimberly Cook, Richard S. Henson and Debra Henson, individually and d/b/a Mateeba Oaks Stables, Mateeba Oaks Stables, LLC, Peter J. and Dena Sellers, Jo-Jahn and Hiott Barry-Mier, Estate of Clara Harleston, Mella Holcombe, and Calvert C. and Frances S. Alpert, Defendants,
of whom South Carolina Department of Transportation, Richard S. Henson and Debra Henson, individually and d/b/a Mateeba Oaks Stables, Mateeba Oaks Stables, LLC are the Respondents,
and
Linda Drake, as Personal Representative of the Estate of Kimberly Cook is the Appellant.
_____________________
Autumn S., a minor under the age of 14 years, by her Guardian ad litem Wendy Skinner, Appellant,
v.
Richard S. Henson and Debra B. Henson, individually and d/b/a Mateeba Oaks Stables; Mateeba Oaks Stables, LLC; Peter J. and Dena Sellers; Jo-Jahn and Hiott Barry-Mier; the Estate of Clara Harleston; Mella Holcomb; and Calvert C. and Frances S. Alpert, Defendants,
of whom Richard S. Henson and Debra B. Henson, individually and d/b/a Mateeba Oaks Stables; Mateeba Oaks Stables, LLC are Respondents.
Appeal from Dorchester County
James C. Williams, Jr., Circuit Court Judge
Opinion No. 26690
Heard March 17, 2009 – Filed July 27, 2009
AFFIRMED
Caroline M. West and Gedney M. Howe, III, both of Charleston, David W. Whittington, of Knight Law Firm, of Summerville, George J. Kefalos, Gregory Daulton Keith, of Uricchio, Howe, Krell, Jacobson, Toporek, Theos & Keith, and Jack D. Cordray, of Cordray Law Firm, all of Charleston, for Appellants.
Bonum S. Wilson, III, of Wilson & Heyward, Jonathan J. Anderson and Lisa A. Reynolds, both of Anderson & Reynolds, Samuel R. Clawson and Margaret M. Urbanic, both of Clawson & Staubes, all of Charleston, for Respondents.
JUSTICE PLEICONES: This is an appeal from an order granting summary judgment to the respondents, finding they owed no duty to appellants, and also holding that appellants’ negligence claim failed for lack of proximate cause. We affirm, finding that appellants have not shown the existence of a duty and therefore do not reach the proximate cause issue.
FACTS
Appellant Skinners were injured when their automobile was struck head on by a car driven by appellant Drake’s decedent (Cook) after Cook’s car crossed the center line of Highway 61. Cook apparently lost control when she veered onto the highway’s shoulder near a driveway leading to a stable and subdivision. Appellants sued the highway department and defendants.[1] The defendants include the owners of the stable and driveway, persons who own land in the subdivision accessed by the driveway, and other persons who own land adjoining Highway 61 near the driveway. Only the defendants who own the driveway and stable are respondents in the appeal.
ISSUE
Whether the circuit court erred in finding respondents did not owe a duty to appellants?
ANALYSIS
Appellants contend the circuit court erred in failing to find respondents owed a common law duty to travelers on the highway. Alternatively, appellants contend the source of respondents’ duty is found in statutes or in regulatory enactments. We agree with the circuit court that respondents did not owe appellants a duty here.
Whether a duty exists is a question of law for the Court. Doe v. Greenville County Sch. Dist., 375 S.C. 63, 651 S.E.2d 305 (2007). Here, appellants posit a duty owed by landowners whose property adjoins a public highway to travelers. Specifically, appellants contend that ruts in the highway’s shoulder near the driveway entrance to respondents’ property were the result of horse trailer traffic, and that respondents have a duty to warn travelers of this dangerous condition or to protect them from encountering it. We find no such duty.
Appellants rely on several statutes and a Department of Transportation (DOT) Handbook[2] as the source of a duty owed by respondents to travelers on the highway.
The DOT regulations to which appellants point regulates the construction of private roads which intersect with a public highway, and allow a landowner to seek an encroachment permit to use a highway right-of-way. Here, respondents did not construct a private road, and therefore did not need to seek such a permit. In addition, DOT did not exercise its authority and require them to obtain one. These regulations are inapplicable to respondents and are not a source of any duty. Moreover, they specifically impose the responsibility for maintaining rights-of-way, such as highway shoulders, on the Department.
Appellants also maintain that respondents have a duty arising from statute. Specifically, they rely on three statutes:
1. S.C. Code Ann. § 57-7-10 “Negligent, Willful or Wanton Damage to Highways”;
2. § 57-7-260 “Liability for Corporations for Obstructions by their Agent”; and
3. § 57-7-50 “Cutting Trenches or Laying Pipes or Tracks in State Highways or Bridges.”
Section 57-7-10 imposes criminal liability on a person who willfully, wantonly, or negligently damages a highway. Appellants do not allege, much less prove, that this statute was intended to create a private cause of action. E.g., Adkins v. South Carolina Dep’t of Corrections, 360 S.C. 413, 602 S.E.2d 51 (2006) (when criminal statute implies private duty). As for § 57-7-260, there is no evidence respondents obstructed the highway, nor any evidence they laid a pipe, tracks, or trenches as contemplated by § 57-7-50. We affirm the trial court’s ruling that neither the regulations nor the statutes cited by appellants create a duty owed by respondents to travelers to warn of or to protect them from shoulder ruts. Adkins, supra.
The circuit court held that respondents owed no common law duty to travelers on the highway as respondents neither possessed nor had control over the highway’s shoulder.[3] Miller v. City of Camden, 329 S.C. 310, 494 S.E.2d 813 (1997) (“one who has no control [over property] owes no duty”). The court held a duty could arise to travelers where the defendant “actually created something to cause a defect on the highway.” We agree that South Carolina common law only imposes a duty for highway conditions where an individual or business has undertaken an activity that creates an artificial condition on the highway which is dangerous to travelers.
Appellants rely heavily on this Court’s decision in Dorrell v. South Carolina Dep’t of Trans., 361 S.C. 312, 605 S.E.2d 12 (2004). InDorrell, the Court held a contractor who had repaved a highway in a manner that elevated the roadway approximately one foot above the shoulder breached its common law duty of care to the traveling public. Appellants also cite Sessions v. Dickerson, Inc., 265 S.C. 579, 220 S.E.2d 876 (1975), where the Court found there was evidence of “actionable negligence,” but not specifically a duty to travelers, on the part of a contractor repairing a highway. We agree with the trial court that a contractor performing highway alterations owes a duty to travelers, but we find no analogous duty on the part of an owner of property abutting a highway who neither possesses nor controls the highway.
Appellants also contend that since respondents own the driveway, and since allegedly it is the utilization of this driveway which led to the ruts on the highway shoulder, respondents “created” a defect on the highway and thus owed a duty to travelers. We disagree.
Appellants cite a number of cases where liability has been imposed on an abutting landowner where the conduct of the landowner’s business has created an artificial hazard on the highway. Clark v. Blue Circle, Inc., 514 S.E.2d 473 (Ga. Ct. App. 1999) (material spilled on roadway); Miller v. APAC-Ga., 399 S.E.2d 534 (Ga. Ct. App. 1990) (same); and Whitaker v. Honegger, 674 N.E.2d 1274 (Ill. App. Ct. 1996). In addition, a landowner whose plant emits smoke that drifts over the highway, or one who creates a traffic jam on the highway during plant shift changes, may be liable to a traveler. Holiday Rambler Corp. v. Gessinger, 541 N.E.2d 559 (Ind. Ct. App. 3 1989); distinguished in Sheley v. Cross, 680 N.E.2d 10 (Ind. App. 1997). Both smoke and a traffic jam are artificial conditions.
Here, the only evidence is that shoulder ruts are the natural consequences of highway use, and that they exist all along the shoulders of a highway, especially a curving scenic road such as Highway 61. We hold that the owner of land which abuts a highway is not liable to the traveler for conditions occurring on that highway which are normal and natural, and not the result of artificial conditions. We therefore affirm the order granting respondents summary judgment, and do not reach the issue of cause in fact.
CONCLUSION
The order granting respondents summary judgment is
AFFIRMED.
TOAL, C.J., WALLER, BEATTY and KITTREDGE, JJ., concur.
[1] It appears that appellants’ liability theory vis-à-vis DOT is that Cook lost control when trying to reenter the roadbed due to a low shoulder, while liability was sought to be imposed on respondents on the theory Cook could not regain control due to deep shoulder ruts caused by those using the driveway.
[2] “ACCESS AND ROADSIDE MANAGEMENT STANDARDS.”
[3] It is undisputed that the shoulder is part of the highway.
Mar 3, 2012 | Criminal Defense, Drug Crimes and Controlled Substances Defense, Uncategorized
This SC Supreme Court decision demonstrates how important every detail can be in a criminal case. Here, the trial judge sentenced the defendant to a statutorily required 25 years in prison and a $100,000 fine for trafficking cocaine based upon an amount of cocaine not proven by the State. However, on appeal, it was concluded that the jury was charged inappropriately and could only support a greatly reduced sentence of 3-10 years and a $25,000 fine. Every nuance in a criminal case can make all the difference. Better make sure your defense attorney investigates every aspect of your case and knows how to take full advantage at 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 for a private consultation. www.rjrlaw.com
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Gina L. Dervin, Petitioner,
v.
State of South Carolina, Respondent.
ON WRIT OF CERTIORARO
Appeal From Kershaw County
L. Casey Manning, Circuit Court Judge
Opinion No. 26755
Submitted November 18, 2009 – Filed December 21, 2009
REVERSED AND REMANDED
Appellate Defender Kathrine H. Hudgins, 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 Brian T. Petrano, all of Columbia, for Respondent.
JUSTICE WALLER: We granted a writ of certiorari to perform an Austin v. State review of the denial of Petitioner Gina Dervin’s application for post conviction relief (PCR). We reverse and remand for resentencing.
FACTS
Dervin was indicted for trafficking cocaine. The indictment alleged she had trafficked between 200-400 grams of cocaine. During her trial, the court twice instructed the jury that Dervin could be convicted of trafficking if she was in actual or constructive possession of ten grams or more of cocaine. The jury found her guilty.
At sentencing, Dervin requested the judge sentence her to the minimum possible sentence, to which the court responded:
Trafficking in cocaine — and in this case trafficking in cocaine in a substantial amount — the amount in this case is from 200 grams – more than 200 grams but less than 400 grams. And that I will tell you is the second highest category or volume of traffic of cocaine provided for in the trafficking statute. . . .
Our Legislature has mandated a sentence in a trafficking case, and that is a mandatory 25-year sentence and a mandatory $100,000 fine. So I have no choice other than to impose the sentence required by law.
Accordingly, Dervin was sentenced to twenty-five years and a $100,000 fine for trafficking. The Court of Appeals affirmed her convictions and sentences on direct appeal. State v. Dervin, Op. No. 2003-UP-484 (S.C. Ct. App. filed August 20, 2003).
Dervin’s first PCR application was denied, and no appeal was filed. Dervin filed this subsequent PCR application in May 2007, alleging PCR counsel was ineffective in failing to appeal the denial of the first PCR application. The court held Dervin was entitled to a belated review of the denial of her first application pursuant to Austin v. State, 305 S.C. 453, 409 S.E.2d 395 (1991), and we granted certiorari.
ISSUE
Was trial counsel ineffective in failing to object to Dervin’s twenty-five year sentence for trafficking more than 200 grams of cocaine when the trial judge only charged the jury to consider whether petitioner was guilty of trafficking ten or more grams of cocaine?
DISCUSSION
Dervin contends trial counsel was ineffective in failing to object to imposition of a twenty-five year sentence for trafficking between 200-400 grams of cocaine, because the jury was only required to determine she trafficked ten or more grams of cocaine, but that it did not necessarily determine she possessed over 200 grams. Dervin contends the United States Supreme Court’s decisions inApprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 542 U.S. 296 (2004) require the amount of drugs to be submitted to the jury to be proven beyond a reasonable doubt. We agree.
In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000), the United State Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” See also Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (court explained that “statutory maximum” for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant).
The state asserts there is no Apprendi violation because the twenty-five year sentence imposed here is within the statutory maximum. While the state is correct in asserting that S.C. Code Ann. § 44-53-370(e)(2)(e) permits up to a thirty year sentence and a $200,000 fine for trafficking over 400 grams of cocaine, the only amount actually charged to the jury here was that it could convict Dervin if it found she possessed “more than 10 grams.” There is no indication in the jury’s verdict that it found anything more than this amount. Accordingly, given the trial court’s instruction, the applicable sentence for possession of ten grams falls under § 44-53-370(e)(2)(a)(1) and is a maximum of ten years and a $25,000 fine. Accord United States v. Booker, 543 U.S. 220 (2005) (statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant).
Due process requires the State to prove every element of a criminal offense beyond a reasonable doubt. State v. Brown, 360 S.C. 581, 602 S.E.2d 392 (2004) (citing In re Winship, 397 U.S. 358 (1970)). A defendant, therefore, cannot “be exposed to a greater punishment than that authorized by the jury’s guilty verdict.” United States v. Page, 232 F.3d 536, 543 (6th Cir. 2000).
In Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the Supreme Court reiterated its holding inApprendi that, under the Sixth Amendment, all facts used to increase a defendant’s sentence beyond the statutory maximum must be charged and proven to a jury. 542 U.S. at —-, 124 S.Ct. at 2536. The relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. Simpson v. United States, 376 F.3d 679 (7th Cir. 2004). See also United States v. Booker, 375 F.3d 508 (7th Cir. 2004). UnderBlakely, the relevant statutory maximum “is the maximum sentence a judge may impose solely on the basis of facts reflected in the jury verdict or admitted by the defendant.” 542 U.S. at 303-304, 124 S.Ct. at 2537.
We find the maximum permissible sentence here, pursuant to Apprendi and Blakely, is controlled by the amount which was specifically submitted to the jury, i.e., that it could convict Dervin of trafficking if it believed she possessed ten or more grams of cocaine. Accordingly, the maximum sentence in the present case should have been that for trafficking between 10-28 grams, which is 3-10 years, and a $25,000 fine. Therefore, the trial court’s imposition of a twenty-five year sentence for trafficking between 200-400 grams of cocaine violated Apprendi because the jury did not find beyond a reasonable doubt that Dervin possessed that amount of cocaine. Further, we find counsel was ineffective in failing to object to impostion of a 25 year sentence. We reverse the denial of PCR and remand for resentencing.[1]
REVERSED AND REMANDED FOR RESENTENCING.
TOAL, C.J., PLEICONES, BEATTY and KITTREDGE, JJ., concur.
[1] Although an Apprendi error may be deemed harmless, Washington v. Recuenco, 548 U.S. 212 (2006), we do not find the error harmless in the present case.
Mar 1, 2012 | DUI & DWI, Uncategorized
In a recent story reported by WJBF News Channel 6 posted on February 16, 2012, there is an apparent effort to “close the loophole” which allows DUI defendants to drive mopeds despite not being able to get a regular driver’s license during a suspension period. At the risk of seeming flippant, I always thought driving a moped was part of the rehabiliation process. The jokes alone would seemingly deter future bad conduct. Nevertheless, the legislature is taking active steps to deprive accused drivers from using mopeds to get around or go to work. Truly drunk drivers should be arrested and punished, especially if they injure or kill innocent victims. However, as a practicing DUI attorney, I regularly meet good, hard working individuals who have gotten caught up in the current DUI hysteria after having a drink with dinner or a beer with a friend. If you drive with any amount of alcohol on your breath and are stopped, you are going to be arrested and spend the night in jail no matter what you say or do. If you attempt to perform field sobriety tests, you will invariably fail and be arrested. If you decline any question or test, you are going to jail. You get the idea here. The best advice, pre-DUI arrest, is to simply not drink at all before driving. Even though that is not what the laws requires, it is the only protection available to prevent a wrongful DUI arrest.
At Reeves, Aiken & Hightower LLP, our seasoned attorneys have over 70 years of combined trial experience in both civil and criminal courts. We focus our criminal practice on DUI and DWI cases in both South Carolina and North Carolina and are available by mobile phone in the evenings, on weekends, and even holidays. Our lawyers are licensed in both states and are aggressive criminal trial attorneys. We are not afraid to go to Court and often do. Don’t settle for a lawyer who only wants to reduce your DUI charges to reckless driving. We welcome the opportunity to sit down and personally discuss your case. Compare our attorneys’ credentials to any other firm. Then call us for a private consultation. www.rjrlaw.com.
Here is the story:
Columbia, SC –A South Carolina Senate committee has approved a bill that would close a loophole in the state’s DUI law that has allowed people to drive mopeds while drunk.”It seems strange, but some magistrates have agreed that the law exempted mopeds from DUI laws,” says Sen. Larry Grooms, R-Bonneau, chairman of the Senate Transportation Committee. “So we’re absolutely closing that loophole.”
The problem is that state law does not consider mopeds to be motor vehicles. The state House passed a bill last year that would change that, to treat mopeds as motor vehicles in all circumstances. But Sen. Grooms says the House bill would lead to some unintended consequences, like allowing mopeds on Interstate highways, even though by definition a moped can’t go more than 30 miles per hour on level ground.
Mopeds are often associated with DUIs, because people who lose their driver’s licenses because of drunken driving can still drive a moped. State law says, “a person must possess a valid driver’s license … or a valid moped operator’s license … except that a person whose driver’s license has been suspended for a period of six months or less is not required to obtain a moped operator’s license or possess a valid driver’s license during the period of suspension.”
The Senate version of the bill would not change that. Sen. Grooms says, “The Senate amendment classifies mopeds as a motor vehicle only in the section of law dealing with driving under the influence.”
Moped driver Taylor Harrison, of Greenville, thinks closing the moped DUI loophole is a good idea. “Because a moped is essentially a motorcycle just powered down a little bit less. So if you drink and drive while on it, it still can be as dangerous as drinking and driving while on a motorcycle or something else,” he says.
But Billy Campbell, owner of Hawg Scooters in Columbia, says he doesn’t see a need for the change. “Clearly they don’t get all the DUI drivers,” he says. “So why are we going after mopeds?”
He says only the driver of a moped is likely to be hurt in a moped DUI accident. “There’s not going to be some mopedist that runs into a family and kills anybody,” he says.
The bill now goes to the full Senate floor, where Sen. Grooms expects it to pass. If it does, since senators changed the House version, the two bodies will have to reach an agreement on a final version.
Mar 1, 2012 | DUI & DWI, Uncategorized
In a classic case of the “tail wagging the dog,” two state prosecutors claim that DUI laws in South Carolina are apparently too easy to beat. They assert that “strict interpretation” of the law is to blame for losing otherwise “slam dunk” drunk driving cases. Take pause. Let that thought sink in. Judges are being maligned for enforcing the law. How about better training for police? How about more selective arrests and prosecutions? How can anyone seriously argue that video evidence laws should be rewritten. The current rules are fairly straightforward. Turn on the camera. Make sure it is working. Read Miranda warnings in front of the lens. These legal requirements really do not seem too demanding or draconian. Afterall, video evidence protects everyone – criminal suspects as well as the police. It keeps both sides “honest.” Juries no longer have to take anybody’s “word.” Rather, they can watch for themselves. The law is fine. It is both reasonable and fair. Police and prosecutors should focus on following the law instead of blaming their own system.
At Reeves, Aiken & Hightower LLP, our seasoned attorneys have over 70 years of combined trial experience in both civil and criminal courts. We focus our criminal practice on DUI and DWI cases in both South Carolina and North Carolina and are available by mobile phone in the evenings, on weekends, and even holidays. Our lawyers are licensed in both states and are aggressive criminal trial attorneys. We are not afraid to go to Court and often do. Don’t settle for a lawyer who only wants to reduce your DUI charges to reckless driving. We welcome the opportunity to sit down and personally discuss your case. Compare our attorneys’ credentials to any other firm. Then call us for a private consultation. www.rjrlaw.com.
Here is the written transcript of the recent interview at issue regarding the prosecution of drunk driving. The title of the news story, aired on WSPA-TV Channel 7, was “DUI roadblocks: Are Loopholes in the Law allowing drunk drivers to walk?” Only wish there was video.
SPARTANBURG, S.C. –
Two top prosecutors in the Upstate say South Carolina’s DUI law has failed miserably in its only purpose: to deter drunk driving and keep you and your loved ones safe on the highway.
They say, more than ever, those arrested for the crime are later walking out of courtrooms with the charge either dropped or reduced to a lesser offense. They say conviction rates have plummeted alarmingly in the four years since legislators re-wrote sections of the state’s DUI law to ostensibly make it stronger by increasing penalties.
According to numbers provided by the South Carolina Chief Justice’s Office, during an 8-month period from November 21, 2010 to July 21, 2011, only 46% of DUI cases that went to court actually resulted in convictions for that charge.
The Solicitors for the two largest circuits in the Upstate say there is one part of every DUI arrest that has made convictions harder than ever to come by: the videotape.
“The videotape, which is the most powerful piece of evidence we have, is being suppressed or the case is being dismissed because it was done incorrectly or in violation of the statute,” says Walt Wilkins, 13th Circuit Solicitor for Greenville and Pickens Counties.
He says when lawmakers revised the DUI law in 2008 to strengthen punishment, they also made it much more difficult for videotapes of arrests to be seen by juries.
“Before 2009, to suppress a video, the defense had to prove that the video was prejudiced to the suspect, which is difficult to prove,” says Wilkins. “But now, videos must strictly follow the videotaping section of the law to be introduced to a jury.”
He says, because of that strict interpretation, cases that were slam-dunk convictions prior to 2009 are now being thrown out by judges – often because of what’s not on tape. He showed us several examples, including the arrest of a driver who already had 5 pending DUI charges. During the field sobriety test, the driver could not stand on one leg and could not walk heel-to-toe. But in trying to walk heel-to-toe, he kept walking and walked out of view of the camera. This proved to be his saving grace. The judge dismissed the case because, as the law calls for, the entirefield sobriety test was not on video. Wilkins says that’s preposterous considering that arresting officers don’t have a second officer operating the camera so that it can be moved if a suspect should walk off screen. (Video cameras are stationary, fixed on the interior of the patrol car’s windshield.)
“Officers in the field have no way of knowing exactly what is in the field of view of their camera,” says Wilkins. “We often kid that you need a degree from Hollywood to make a good DUI case here in South Carolina.”
Wilkins shared another video that showed a car on I-385, weaving onto the shoulder several times. After pulling over and getting out of the car, the driver admitted to the deputy that he had drank six beers. The man could not follow the deputy’s instructions as he tried to perform the “eye track” test. Then, as he tried to stand with one foot in front of the other for the heel-toe walk, he could not do so without losing his balance. He finally conceded that he could not do the test and told the deputy to arrest him.
The case was perfect – except for one thing: by law, after a suspect is brought to the local detention center to perform the breathalyzer test, the officer must wait 20 minutes before offering the test. During this time, the suspect is to be videotaped as he sits in a holding cell.
“If you videotape him for 19 minutes and 40 seconds, then your case is dismissed; you’re in violation of the statute,” says Wilkins.
In this case, Wilkins says the suspect told the officer up front that he was not going to take a breathalyzer, so the officer did not record the 20-minute waiting period. This prompted the judge to dismiss the case. Wilkins says he has more than 200 similar cases pending.
Wilkins’ counterpart in Spartanburg shares his frustration. In 2007, Barry Barnette was named DUI Prosecutor of the Year by the Department of Public Safety, but last year his conviction rate fell to 44 percent. He says the state’s DUI law is not keeping the public safe.
“It’s a situation now where there’s cases being dismissed that should be going forward,” says Barnette. “It’s creating a dangerous scenario where we do not deter people from getting behind the wheel drunk because they know they have a good chance of not getting convicted.”
He showed Seven On Your Side video of one example where the driver had hit another vehicle in a parking lot. The driver appears to be so intoxicated, he can’t even stand still in front of the trooper. But the driver got the charge dropped because the trooper didn’t read him his miranda rights in front of the camera. On the video, you can hear the trooper reading the suspect his rights off camera. But the court says audio isn’t good enough.
Barnette and Wilkins call these examples of “loopholes” in the law and they say someone is exploiting them all the way to the bank.
“The DUI business is big in South Carolina right now. It’s a very lucrative business for attorneys,” says Wilkins.
Brad Hutto is regarded as one of the best DUI defense attorneys in the state. He’s also the state senator who chaired the judiciary subcommittee that re-wrote the DUI law in 2008. And he says he doesn’t see a problem with a system that allows those who profit from the enforcement of a law to be the ones in charge of re-writing that law.
“No more than I see any conflict with people who pay taxes writing tax laws,” says Hutto. “I mean, we all have our own lives, and we all do things in those lives, some that give us insight maybe more specifically than others, but, no, there are some things are clearly conflicts of interest. This is not one of them.”
He says the DUI law is protecting the public and he doesn’t believe the videotaping issues are nearly as common as prosecutors would like us to believe.
“I’m not going to tell you there’s not an isolated case here or there, but I would tell you that’s exactly what it is: an isolated case,” says Hutto.
Ronnie Cole is an Anderson attorney who literally wrote the book on how to beat traffic cases in South Carolina. He was also one of several lawyers who testified before Hutto’s committee in 2008, as the committee sought input from those who could offer insight on how changes to the law would affect the system. Cole says if DUI convictions are down, the problem isn’t the way the law is written but rather how officers are carrying it out.
“How hard is it to point a camera at someone and hit the record button?” says Cole. “Officers have an 8-hour training course that teaches them how to do that. If they aren’t doing it in these cases, then Barry (Barnette) and Walt (Wilkins) should just send out a memo and say ‘hey, stop doing things this way’. That would be a simple fix right there.”
He said in the example where the suspect walked off camera, the officer should have had him walking toward the front of the patrol car, directly toward the camera, instead of having him walk across the camera’s field of view.
“The cases that a lot of prosecutors gripe about is the cases where that officer has made a very poor case, for whatever reason,” says Cole.
Wilkins says officers cannot be expected to “mark every little box on the videotaping checklist” during every traffic stop when they are often dealing with adverse conditions or potentially dangerous suspects.
“That puts, in my opinion, an undue burden on law enforcement to make the perfect DUI case when they’re out there in real life, real live world situations trying to keep people off the streets who are intoxicated and save lives,” says Wilkins.
Wilkins and Barnette say they would like to see changes to the law so that prosecutors aren’t penalized for “technicalities”. Barnette has written some suggested revisions to the law that would make several changes to the videotaping section, including: allowing just audio of the mirandization process to be legally sufficient, striking the mandatory recording of the 20-minute observation period, and preventing a suspect’s actions (like waking off camera) from being sufficient grounds for dismissal of a video. State Representatives Eddie Tallon and Derham Cole, Junior, say they will co-sponsor a bill to make Barnette’s suggested revisions law.
Hutto says he does not believe “loopholes” exist in the law and does not believe these problems are as prevalent as prosecutors say they are, but he says he would consider revising the law if the solicitors present a compelling argument to do so.
“Nobody wants the law to not be properly administered,” said Hutto. “The intention in the videotaping law was not to create loopholes. The intention really was to create a tool for prosecution of these cases.”
According to Mothers Against Drunk Driving, the Palmetto State has the nation’s highest percentage of fatal crashes caused by intoxicated drivers. In comparison to our neighbors, North Carolina ranks 29th and Georgia is 44th (out of 50 states and the District of Columbia) in 2010, the most recent year of available data.
Mar 1, 2012 | Brain Injury/Head Trauma, Car Accidents, Personal Injury, Uncategorized, Workers' Compensation
The trial attorneys at Reeves, Aiken & Hightower, LLP, are experienced serious injury lawyers who handle brain injury cases. As a former intensive care unit Registered Nurse (RN), Robert Reeves has actually treated patients with life-threatening head injuries just like the clients he now fights for in court. Sadly, closed head or traumatic brain injury (TBI) occurs more often than earlier realized and can result from even relatively minor trauma during automobile accidents, large truck accidents, motorcycle accidents (even with a helmet), and work-related accidents (workers’ compensation injuries). Fortnuately, medical science continues to make significant advances in the treatment of these injuries and offers hope to those persons and their families who have been involved in serious accidents. The article below shows just such a new tool and may be a treatment option for your loved one. We would welcome an opportunity to sit down and personally discuss your particular case. Compare our attorneys’ credentials to any other firm. Then call us for a private consultation. www.rjrlaw.com
Flu drug Amantadine may boost recovery from severe brain injuries
(CBS/AP) Medicines generally have side effects, but once in awhile the side effects may treat other conditions. Viagra after all, was originally a blood pressure medicine. Amantadine, an old flu medicine approved in the 1960s, was found a few years later to improve symptoms of Parkinson’s disease. Now a new study shows the drug may also speed recovery from severe brain injuries.
The study, published Mar. 1 in the New England Journal of Medicine, involved 184 patients who had severe brain injuries caused by falls and car crashes. About a third were in a vegetative state (unconscious but with periods of wakefulness) and the rest were minimally conscious.
The patients were randomly assigned to receive amantadine or a placebo daily for four weeks. They were treated within one to four months after getting injuried – a period when a lot of patients get better on their own, according to study author Joseph Giacino, a neurologist at Boston’s Spaulding Rehabilitation Hospital.
The researchers found both groups made small but significant improvements, but the rate of recovery was faster in the group getting amantadine. Changes included the ability to give yes-and-no answers, follow commands or use a spoon or hairbrush. Of the patients who received amantadine, only 17 percent remained in a vegetative state, versus 32 percent of those who received the dummy drug.
When treatment stopped, recovery in the amantadine group slowed and two weeks later, the level of recovery in the two groups was about the same.
The study was short, and the effect on long-term outcome is unknown. But Giacino said the drug still has value even if it only hastens recovery. The study also didn’t include those with penetrating head injuries, like the gunshot wound former Rep. Gabrielle Giffords suffered, but Giacino said the drug should have similar effects in those patients. Whether it would work in patients with brain injuries not caused by trauma, such as a stroke, isn’t known.
“This drug moved the needle in terms of speeding patient recovery, and that’s not been shown before,” Giacino said. “It really does provide hope for a population that is viewed in many places as hopeless.”
Many doctors began using amantadine for brain injuries years ago, but until now there’s never been a big study to show that it works.
Doctors first had an inkling that the inexpensive generic amantadine might have other uses a few years after its approval when it appeared to improve Parkinson’s symptoms in nursing home patients. It was found to have an effect on the brain’s dopamine system, whose many functions include movement and alertness, and it was eventually approved for Parkinson’s.
It’s now commonly used for brain injuries, and the researchers felt it was important to find out “whether we’re treating patients with a useful drug, a harmful drug or a useless drug,” said study author Dr. John Whyte, director of the Moss Rehabilitation Research Institute in suburban Philadelphia.
Each year, an estimated 1.7 million Americans suffer a traumatic brain injury. Falls, car crashes, colliding with or getting hit by an object, and assaults are the leading causes. About three-quarters are concussions or other mild forms that heal over time. But about 52,000 people with brain injuries die each year and 275,000 are hospitalized, many with persistent, debilitating injuries, according to government figures.
The study didn’t include those with penetrating head injuries, such as gunshot wounds, but Giacino said the drug should have similar effects in those patients. Whether it would work in patients with brain injuries not caused by trauma, such as a stroke, isn’t known.
A neurologist who wasn’t involved in the research called it an important step. But many questions remain, including whether people less severely injured would benefit, and whether amantadine actually improves patients’ long-term outcome or just speeds up their recovery.
Dr. Ramon Diaz-Arrastia said the results were welcome news in a field that has seen many failed efforts. He is director of clinical research at the government’s Center for Neuroscience and Regenerative Medicine, which works with the military and government scientists on brain injury research.
“It’s an important step toward developing better therapies,” he said.
“Hope is critical and false hope is cruel for families dealing with this,” Susan Connors, president and chief executive of the Brain Injury Association of America, in Vienna, Va, told the New York Times. The new findings are “a little piece of hope, the real kind,” she said.
Since amantadine is commonly used, Diaz-Arrastia said U.S. troops with severe brain injuries in Iraq or Afghanistan probably get it, or should get it now. Since 2000, some 233,000 troops have suffered traumatic brain injuries, including about 6,100 serious cases, many of them from bomb blasts or shrapnel.
