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THE STATE OF SOUTH CAROLINA

In The Supreme Court

Arlando Gaines, Respondent,

v.

State of South Carolina, Petitioner.

ON WRIT OF CERTIORARI

Appeal From Dorchester County

Luke N., Brown, Trial Judge

A. Victor Rawl, Post-Conviction Judge

Opinion No. 24956

Submitted April 21, 1999 - Filed June 21, 1999

REVERSED

Attorney General Charles M. Condon, Chief Deputy

Attorney General John W. McIntosh, Assistant

Deputy Attorney General Teresa A. Knox, Assistant

Attorney General Matthew M. McGuire, all of

Columbia, for petitioner.

Chief Attorney Daniel T. Stacey, 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

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Arlando Gaines ("Defendant") on the grounds that two of his three guilty

pleas were not entered "voluntarily." We reverse the PCR court and

reinstate Defendant's two guilty pleas.

FACTUAL/PROCEDURAL BACKGROUND

The State indicted Defendant in November 1994 for two, counts of

burglary second degree and one, count burglary third degree. On November

28, 1994, Defendant pled guilty to all three indictments. Defendant entered

a plea of guilty to one count of second degree burglary and entered guilty

pleas for the other burglary second charge and the burglary third charge

under the case North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27

L.Ed.2d 162 (1970).1 An attorney from the public defender's office, Mark

Wise, acted as Defendant's attorney at the hearing. Defendant did not

directly appeal any of his convictions.

At the hearing, the trial judge made several inquires regarding the

guilty pleas including:

(1) Whether Wise-had explained the charges to Defendant;

(2) Whether Wise believed Defendant understood the charges pending

against him;

(3) Whether Defendant understood the amount of time he could be

sentenced to serve as a result of the charges;

(4) Whether Defendant had been promised anything besides the

Solicitor's sentencing recommendation for his pleas;

(5) Whether Defendant understood he had the right to have a jury trial

and could present witnesses and have his attorney cross-examine the State's

witnesses;

consent voluntarily, knowingly, and understandingly to the imposition of a

prison sentence although unwilling to admit culpability, or even if the guilty

plea contains a protestation of innocence, when the accused intelligently

concludes that his interests require a guilty plea and the evidence strongly

supports his guilt of the offense charged.

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(6) Whether Defendant understood he did not have to testify at trial

and his silence could not be held against him by the jury;

(7) Whether Defendant had any complaints about the police officers or

prosecutors in the case;

(8) Whether Defendant was satisfied with the services of his attorney;

(9) Whether Defendant was abusing any substance that would prevent

him from understanding the proceedings;

The trial judge explained the concept of an Alford plea and again

reviewed the amount of time Defendant could receive under the pleas. At

the end of this extended colloquy,, the following exchange took place between

the trial court and Defendant:

THE COURT: Knowing all of this, are you pleading guilty freely

and voluntarily?

DEFENDANT: Yes, sir.

The trial court then established a factual basis for each of the pleas. In

addressing the factual basis of the non-Alford plea, the trial court stated:

THE COURT: All right, Solicitor, I accept the [non-Alford] plea , I

think it is free and voluntary. He has knowingly

waived his rights to a jury trial on that one. And let

me hear the facts on the others and I will give you a

ruling on that. (Emphasis added)

The Solicitor then proceeded to give an extended description of the factual

basis for the incidents alleged under the Alford pleas. The Solicitor also gave

a summation of Defendant's extensive criminal history and the trial judge

reviewed that history with Defendant in detail. The trial court also heard

from Defendant's wife who testified for her husband in hopes of reducing his

sentence. At the conclusion of the wife's testimony, the trial court sentenced

Defendant to ten years in prison plus five years probation.

In December 1995, Defendant filed an application for PCR alleging: (1)

ineffective assistance of counsel; and (2) prejudicial error on behalf of the

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prosecution. The PCR judge heard oral arguments and on February 16,

1997, issued an order granting relief to Defendant on the two Alford guilty

pleas. The PCR judge determined that Defendant was not entitled to relief

as a result of ineffective assistance of counsel. However, the PCR judge

found that the trial judge failed to make the specific finding of voluntariness

following the factual descriptions of the Alford pleas as he had stated he

would. Based on the trial court's failure to state expressly that it found the

non-Alford pleas voluntary, the PCR court set aside those two guilty pleas.

The PCR order upheld Defendant's guilty plea entered on the other second

degree burglary charge.

LAW/ANALYSIS

The State argues that the PCR judge erred in finding the two Alford

pleas were involuntary. We agree.

"If the record reflects, as it does here, that the trial court has assured

itself that the plea was voluntary and intelligently entered with full

knowledge of the nature of the offense, then lack of precise language in the

record expressing these considerations is not of itself a valid reason for

reversal." State v. Lambert, 266 S.C. 574, 580, 225 S.E.2d 340, 342 (1976).

In the current case, the trial judge satisfied all of the necessary elements to

establish the Alford guilty pleas as voluntary. The PCR judge relied on the

trial judge's statement that he would make an express finding as to the

voluntariness of the Alford pleas and then failed to do so as the sole reason

for setting aside those guilty pleas.

The test for a valid guilty plea established by Boykin v. Alabama, 395

U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) is whether the record

establishes that a guilty plea was voluntarily and understandingly made.

Generally, "the [court] must be certain that the defendant understands the

charge and the consequences of the plea and that the record indicates a

factual basis for the plea." In State v. Armstrong, 263 S.C. 594, 211 S.E.2d

889 (1975), this Court also acknowledged that the "court's warning should

include an explanation of the defendant's waiver of constitutional rights and

a realistic picture of all sentencing possibilities." Id. at 598, 211 S.E.2d at

891. To ensure that the defendant understands, the trial judge usually

questions the defendant about the facts surrounding the crime and the

punishment which could be imposed. See, e.g., State v. Lambert, 266 S.C.

5742 225 S.E.2d 340 (1976). It is clear from the record that the trial judge

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met all requirements to enter a valid guilty plea, even if he did not follow

through with his promise to explicitly rule on their voluntariness.

The trial judge satisfied all of the necessary requirements when he

accepted the two Alford pleas from Defendant. A review of the record shows

that the judge questioned Defendant extensively about the voluntariness of

both the non-Alford and Alford pleas. The judge discussed the possible

sentences under all the charges and made no distinction between them until

he established the factual basis for each plea. Following the factual basis for

both the non-Alford and Alford pleas, the trial judge sentenced Defendant for

all three charges. The clear implication is that the trial judge found the

pleas voluntary or he would not have entered sentences for all three offenses.

That the judge failed to state expressly his finding as to the voluntariness of

the Alford pleas does not defeat the fact that the record itself reveals a

voluntary waiver.

CONCLUSION

The order of the PCR court is REVERSED and Defendant's two Alford

pleas are reinstated.

FINNEY, C.J., MOORE, WALLER, and BURNETT, JJ., concur.

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