Davis Adv. Sh. No. 35
S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Morgan Quincy Smith, Respondent,
v.
State of South Carolina, Petitioner.
ON WRIT OF CERTIORARI
Appeal From Florence County
Marc H. Westbrook, Trial Judge
B. Hicks Harwell, Jr., Post-Conviction Judge
Opinion No. 24723
Submitted October 22, 1997 - Filed December 15, 1997
REVERSED
Attorney General Charles Molony Condon, Deputy
Attorney General John W. McIntosh, Assistant
Deputy Attorney General Teresa A. Knox, all of
Columbia, for petitioner.
Assistant Appellate Defender M. Anne Pearce, of
South Carolina Office of Appellate Defense, of
Columbia, for respondent.
TOAL, A.J.: The State has petitioned for a writ of certiorari,
contesting the Post-Conviction Relief ("PCR") court's grant of relief to Morgan
Quincy Smith on the basis of his attorneys' failure to advise him that
burglary second degree is a violent offense. We reverse.
p. 3
SMITH v. STATE
Factual/Procedural Background
In June 1994, Smith was indicted on five counts of burglary second
degree, four counts of grand larceny, three counts of accessory after the fact
of burglary and grand larceny, three counts of conspiracy, and one count of
grand larceny of a motor vehicle. Smith pled guilty to the second degree
burglary, accessory after the fact, and grand larceny charges. He was
sentenced to fifteen years for each count of second degree burglary, ten years
for each count of accessory after the fact, and five years for each count of
grand larceny. All of the sentences were to run concurrently. Smith did not
appeal his convictions or sentence.
In late 1994, Smith filed a PCR application in which he alleged that he
failed to understand the nature of his plea to burglary under S.C. Code Ann.
16-11-312 (Supp. 1996).1 A PCR hearing was held at which Smith testified
he had been informed by counsel that he could potentially receive 130 years
for his offenses. He stated, however, that he was not told whether the
burglary offenses to which he was pleading guilty were violent or non-violent
offenses. At one point in the hearing, he stated that he would not have pled
guilty to a violent charge because he did not do anything violent. Smith
knew he was pleading guilty to fifteen years to run concurrently and that he
would have to serve a third of the sentence.
Smith's attorney Hugh Claytor ("Attorney") also testified at the PCR
hearing. He stated that he told Smith that burglary second degree carried
a fifteen-year sentence and that the statutory minimum he would have to
serve was one-third. They never talked about the distinction between violent
and non-violent offenses. Attorney did believe that Smith was pleading to a
non-violent charge, but he did not think it mattered.
Olin Purvis assisted Attorney in representing Smith. Purvis testified
that it was explained to Smith very clearly that he was facing fifteen-year
sentences on the burglary charges that would be treated as mandatory one-
third sentences, and Smith would be required to do one-third of the time.
Purvis stated that he did not raise the issue of whether the crime was violent
1See S.C. Code Ann. 16-11-312 ("Burglary in the second degree is a
felony punishable by imprisonment for not more than fifteen years, provided,
that no person convicted by burglary in the second degree shall be eligible for
parole except upon service of not less than one-third of the term of the
sentence.").
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SMITH v. STATE
and did not see any reason to do so.
The PCR court's order declares that Attorney had advised Smith about
parole eligibility, but had not advised Smith that he was pleading guilty to
a violent offense. The order further states that there are consequences to
pleading to a violent crime, including "treatment while in the Department of
Corrections, [Smith's] eligibility for 'good time credits,' and the possibility of
enhancement should he be convicted of a violent offense in the future."
Accordingly, the PCR court granted Smith a new trial.
The State has petitioned for a writ of certiorari, contending that the
PCR court erred in granting Smith a new trial on the basis of counsel's
failure to advise him that burglary second degree is a violent offense.
Law/Analysis
The State argues the PCR court erred in granting Smith relief. We
agree. A guilty plea may not be accepted unless it is voluntarily and
understandingly made. Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23
L. Ed. 2d 274 (1969). In order for a defendant to knowingly and voluntarily
plead guilty, he must have a full understanding of the consequences of his
plea and of the charges against him. Simpson v. State, 317 S.C. 506, 455
S.E.2d 175 (1995). In State v. Hazel, 275 S.C. 392, 271 S.E.2d 602 (1980),
this Court held that defendant's plea was not knowing because it was entered
without an understanding of the mandatory punishment for the offense to
which he was pleading. Accordingly, the plea was entered in ignorance of its
direct consequence and was therefore invalid. Similarly, in Dover v. State,
304 S.C. 433, 405 S.E.2d 391 (1991), we held that the defendant's guilty plea
was made in ignorance of its consequences where the trial judge never asked
the defendant any factual questions, nor questioned him about the possibility
of a severe sentence, and it was never established that the defendant
understood the severity of the crimes or the sentences they carried.
In contrast, parole eligibility has been held to be a collateral
consequence of sentencing of which a defendant need not be specifically
advised before entering a guilty plea. Griffin v. Martin, 278 S.C. 620, 300
S.E.2d 482 (1983). However, if the defendant's attorney undertakes to advise
the defendant about parole eligibility and gives erroneous advice, then the
plea may be collaterally attacked. See Hinson v. State, 297 S.C. 456, 377
S.E.2d 338 (1989). Likewise, if the judge misinforms the defendant about
parole eligibility, then the defendant is entitled to a new trial. See Brown
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STATE V. SMITH
v. State, 306 S.C. 381, 412 S.E.2d 399 (1991).2 In reaching its holding in
Brown, the Court stated:
- The imposition of a sentence may have a number of collateral
- consequences, however, and a plea of guilty is not rendered
- involuntary in a constitutional sense if the defendant is not
- informed of the collateral consequences. Parole eligibility
- typically is a collateral consequence of sentencing about which a
- defendant need not be specifically advised before entering a guilty
- plea. This is because parole eligibility is not a matter within the
- jurisdiction of the trial court, but falls within the province of the
- Board of Probation, Parole, and Pardon Services.
Brown, 306 S.C. at 382-83, 412 S.E.2d at 400-01 (emphasis in
original)(internal citations omitted).
The pivotal question in the present case is whether Smith should have
been informed about the classification and consequences of burglary second
degree as a violent crime. The resolution of this question depends, in turn,
on whether the consequences of a violent crime are collateral.
Section 16-1-60 (Supp. 1996) defines burglary second degree (S.C. Code
Ann. 16-11-312(B)) as a "violent crime." There are a number of
consequences if defendant is convicted of a violent crime. Among these are
his preclusion from the pretrial intervention program,3 the supervised
2Hunter v. State, 316 S.C. 105, 447 S.E.2d 203 (1994) limited Brown's
holding. Hunter stated that a strict reading of Brown would seem to dictate
that a guilty plea must be reversed for any misstatement of parole eligibility
by a trial judge, even where the misstatement relates to the defendant's
particularized situation, rather than the applicable law. Hunter declared that
that is incorrect. Rather, erroneous parole evidence advice from the bench
could, on certain facts mislead, a defendant to his detriment; however, it
would be wholly impractical to maintain a rule that requires the automatic
reversal of a guilty plea without something more. Where the trial judge
merely explains the minimum criteria for parole eligibility as contained in the
applicable statute, the fact that the defendant is not actually eligible for
parole does not render his guilty plea involuntary or unknowing. Id. at 109,
447 S.E.2d at 205-06.
3See S.C. Code Ann. 17-22-50 (Supp. 1996)(A person may not be
considered for the pre-trial intervention program if he has been charged with
p. 6
SMITH v. STATE
furlough program,4 and the Shock Incarceration Program.5 Other
consequences include tougher standards for parole,6 limitations on furlough7
and work release,8 and unavailability of educational credits.9 Additionally,
one convicted of a violent crime may not become licensed as an embalmer or
funeral director10 or registered professional engineer, associate professional
any crime of violence as defined in Section 16-1-60.).
4See S.C. Code Ann. 24-13-710 -- 720 (Supp. 1996).
5See S.C. Code Ann. 24-13-1310(l)(c) (Supp. 1996).
6See S.C. Code Ann. 24-21-30(B) (Supp. 1996) ("The board may grant
parole to an offender who commits a violent crime as defined in Section
16-1-60 which is not included as a 'no parole offense' as defined in Section
24-13-100 on or after the effective date of this section by a two-thirds
majority vote of the full board. The board may grant parole to an offender
convicted of an offense which is not a violent crime as defined in Section
16-1-60 or a 'no parole offense' as defined in Section 24-13-100 by a
unanimous vote of a three-member panel or by a majority vote of the full
board."); S.C. Code Ann. 24-21-640 (Supp. 1996)("The board must not grant
parole nor is parole authorized to any prisoner serving a sentence for a
second or subsequent conviction, following a separate sentencing for a prior
conviction, for violent crimes as defined in Section 16-1-60."); see also S.C.
Code Ann. 24-21-645 -- 650 (Supp. 1996).
7See S.C. Code Ann. 24-3-210(D) (Supp. 1996)(person convicted of a
violent crime under section 16-1-60 may not be extended the benefits of
furlough, unless the victim, the law enforcement agency, and the solicitor
recommend furlough).
8See S.C. Code Ann. 24-13-650 (Supp. 1996)(precluding offender of a
violent offense from being released back into the community in which he
committed the offense, except where victim, law enforcement agency, and
solicitor all agree to recommend participation of offender in program).
9See S.C. Code Ann. 24-13-230(F) (Supp. 1996)("The educational credit
provided for in this section, is not available to any individual convicted of a
violent crime as defined in Section 16-1-60.").
10See S.C. Code Ann. 40-19-100 (1)(A)(ii) & (B)(ii) (Supp. 1996).
p. 7
SMITH v. STATE
engineer, or professional land surveyor.11
We find that none of the above consequences are of greater significance
than parole eligibility. Because we have deemed parole eligibility to be a
collateral consequence, then, a fortiori, the above-named consequences are
collateral as well. As such, defendants need not be affirmatively informed
about them. See Brown, 306 S.C. at 382-83, 412 S.E.2d at 400 ("The
imposition of a sentence may have a number of collateral consequences,
however, and a plea of guilty is not rendered involuntary in a constitutional
sense if the defendant is not informed of the collateral consequences.").
Moreover, Brown reasoned that parole eligibility typically is a collateral
consequence of sentencing because it is not a matter within the jurisdiction
of the trial court, but falls within the province of the Board of Probation,
Parole, and Pardon Services. Brown, 306 S.C. at 383, 412 S.E.2d at 400-01.
This reasoning is applicable here inasmuch as none of the consequences
discussed above are matters within the jurisdiction of the trial court.
Because the consequences of a violent crime are collateral, Smith's
guilty plea is not rendered involuntary due to counsel's failure to inform him
of the consequences of a violent crime conviction. Smith was advised about
the severity of the offense, about his potential sentence, and that he had to
serve a minimum of one-third of his sentence. At the guilty plea hearing,
Smith responded to the court that he understood the charges he was facing
and that he could be sentenced to a maximum sentence of 130 years.
Understanding these things, he still wanted to plead guilty.
Although Attorney incorrectly believed that the burglary charge to
which Smith was pleading was a non-violent offense, and Attorney did not
understand what effect violent versus non-violent would have on parole
eligibility, there was no evidence presented that Attorney advised Smith
about these matters. Because the information that Smith did receive was
sufficient and correct, he has no basis for relief.
CONCLUSION
Based on the foregoing, the grant of PCR is REVERSED.
11 See S.C. Code Ann. 40-22-10(19), -190(a), -195(A), -220, & 260)
(Supp. 1996).
p. 8
FINNEY, C.J., MOORE, WALLER and BURNETT, A.J., concur.
p. 9