S.E. 2d
THE STATE OF SOUTH CAROLINA
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Troy E. Tilley, Respondent,
v.
State of South Carolina, Petitioner.
ON WRIT OF CERTIORARI
Appeal From Horry County
Don S. Rushing, Trial Judge
David H. Maring, Sr., Post-Conviction Judge
Opinion No. 24892
Submitted January 20, 1999 - Filed January 25, 1999
AFFIRMED
Attorney General Charles Molony Condon, Deputy
Attorney General John W. McIntosh, Assistant
Deputy Attorney General Teresa A. Knox, and
Assistant Attorney General J. Benjamin Aplin, all of
Columbia, for petitioner.
Chief Appellate Defender Daniel T. Stacey, of the
S.C. Office of Appellate Defense, of Columbia, for
respondent.
p.40
TILLEY v. STATE
PER CURIAM: The State filed a petition for a writ of certiorari
following the grant of respondent's application for post-conviction relief
(PCR). We grant the petition for a writ of certiorari and dispense with
further briefing. After a thorough review of the record. we affirm.
Respondent pled guilty to kidnapping, first degree criminal
sexual conduct, and possession of a firearm during the commission of a
violent crime. He was sentenced to life imprisonment for kidnapping,
eighteen years for first degree criminal sexual conduct, and five years for
possession of a weapon, during the commission of a violent crime. The
sentences were to be served consecutively. No direct appeal was taken.
The petition for a writ of certiorari is from the denial of the
State's motion to dismiss respondent's PCR application as successive and
from the PCR judge's order requiring respondent's sentence to be served in a
particular sequence.
Respondent filed three PCR applications prior to the application
at issue here. The PCR application which is the subject of this appeal was
filed on November 20, 1995. Following a hearing, the PCR judge granted
respondent relief on the claim that his plea was involuntary, and
unintelligently and unknowingly entered because he was not fully aware of
the no-parole consequences of his guilty plea. The relief granted was an
order requiring respondent's sentences to be served in a particular sequence.
Respondent applied for post-conviction relief on the basis of a
letter that was sent to him by the South Carolina Department of Probation,
Parole, and Pardon Services (Parole Board) on October 26, 1995. In that
letter, the Parole Board informed respondent that he was not eligible for
parole because the law prevents his release on the five-year sentence for
possession of a firearm during the commission of a violent crime.1 Further
1S.C. Code Ann. 16-23-490 (1976 & Supp. 1997) provides for a
mandatory five-year sentence for a person convicted under this section. Moreover,
[t]he person sentenced under this section is not
eligible during this five-year period for parole ....
The five years may not be suspended and the person
p.41
TILLEY v. STATE
the Parole Board informed respondent that his five-year sentence was
consecutive to the other sentences he received, and, as a result, the Parole
Board was prevented from considering him for parole on the sentences of life
and eighteen years, as well as the five-year sentence.
During the PCR hearing, Janet Paduhovich, an attorney for the
Parole Board, testified that respondent was not eligible for parole due to the
consecutive nature of his sentence. Paduhovich stated although respondent
is parole eligible on the kidnapping and criminal sexual conduct convictions,
as a practical matter, the Parole Board could not consider respondent for
parole because of the mandatory five-year sentence, which follows the
kidnapping and criminal sexual conduct convictions. Paduhovich stated that
this was due to the sentencing structure. Paduhovich further testified that,
unless otherwise directed by the sentencing judge, the Parole Board
interprets the sentence structure as meaning respondent must serve out his
term on count one, which is life, before he can begin serving out his term on
the next two counts, which are 18 years and 5 years, respectively. Therefore,
in theory, respondent is eligible for parole, but practically he is not parole
eligible because he must serve out his life term before he ever gets to the
mandatory term of five years.
Respondent testified at the PCR hearing that the reason he
never brought up the parole eligibility claim before was because the Parole
Board had given him a printout every six months, which stated his parole
eligibility date and his work credits. Each subsequent printout showed an
earlier parole eligibility date due to respondent's work credits. Respondent
received these printouts until the month he was eligible for parole and the
Parole Board sent him the letter stating he was not eligible for parole.
Respondent further testified that he had taken parole preparation classes.
Respondent's plea counsel testified at the PCR hearing that he
did not know what respondent's sentence meant in terms of parole eligibility
and that he was not aware that respondent would not be eligible for parole.
may not complete his term of imprisonment in less
than five years pursuant to good-time credits or work
credit, but may earn credits during this period.
16-23-490(C).
p.42
TILLEY v. STATE
On the claim that respondent's plea was involuntary, the PCR
judge found that respondent had no way of knowing at the time he
voluntarily pled guilty that an actual sentence of life without parole could be
imposed on him.
I. Successive Application
The State first argues the PCR judge erred by denying the
State's motion to dismiss respondent's PCR application as successive. We
disagree.
A successive application is one that raises grounds not raised in
a prior application, raises grounds previously heard and determined, or
raises grounds waived in prior proceedings. S.C. Code Ann. 17-27-90 (1976
& Supp. 1997). Successive applications are disfavored and the applicant has
the burden to establish that any new ground raised in a subsequent
application could not have been raised by him in a previous application.
Arnold v. State, 309 S.C. 157, 420 S.E.2d 834 (1992), cert. denied, 507 U.S.
927, 113 S.Ct. 1302, 122 L.Ed.2d 691 (1993); Aice v. State, 305 S.C. 448, 409
S.E.2d 392 (1991); Foxworth v. State, 275 S.C. 615~ 274 S.E.2d 415 (1981).
This Court must affirm the findings of the PCR court if they are supported
by any evidence of probative value in the record. Webb v. State, 281 S.C.
237, 314 S.E.2d 819 (1984).
We find respondent's claims concerning parole eligibility are not
successive. Respondent learned he was ineligible for parole on October 26,
1995, and within a month he filed the current PCR application. He could not
have raised this claim in a previous PCR application because he did not
know of the claim until October 26, 1995.
We further find the PCR judge's order denying the State's motion
to dismiss respondent's application as successive is supported by evidence of
probative value. See Webb v. State, supra.
II. Sentence Structure
The State also argues the PCR judge erred in ordering that
respondent's sentence be served in a particular sequence. We disagree.
The PCR judge found the sentencing judge did not order that the
p.43
TILLEY v. STATE
prison terms of life, eighteen years, and five years be served in that
sequence, only that they be served consecutively. The PCR judge ordered
respondent's sentence be served in a way that corrects the Parole Board's
interpretation of his sentence. Pursuant to the change, respondent serves
his sentence as follows:
(1) five (5) years for possession of a weapon
during the commission of a violent crime, then he
shall serve
(2) eighteen (18) years for first degree criminal
sexual conduct, then he shall serve
(3) life for kidnapping.
By setting out the sequence by which respondent will serve his
prison terms, respondent may become eligible for parole in the future. Such
a correction is merely a matter of placement and does not disregard the
original sentence that the terms be served consecutively.
S.C. Code Ann. 17-27-80 (1976 & Supp. 1997) provides that if
the PCR judge finds in favor of the applicant, the PCR judge shall enter an
appropriate order with respect to the conviction or sentence in the former
proceedings and any supplementary orders as to correction of sentence.
The PCR judge found that the Parole Board has interpreted
respondent's sentence to imprison him for life with no chance for parole, even
though the sentencing judge merely ordered the sentences be served
consecutively. The Parole Board's interpretation contravenes the intent of
the sentencing judge because it appears the sentencing judge did not intend
for respondent's prison terms to be without parole.
We agree with the PCR judge's finding that the trial judge did
not intend respondent's sentences to be served in the order the Parole Board
has established. The PCR judge correctly established the sequence in which
respondent's sentences would be served, so that respondent may be parole
p.44
TILLEY v. STATE
eligible sometime in the future. See 17-27-80.
AFFIRMED.
Burnett, A.J., not participating,
p.45