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Davis Adv. Sh. No. 35
S.E. 2d

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.

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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

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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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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v. State, 306 S.C. 381, 412 S.E.2d 399 (1991).2 In reaching its holding in

Brown, the Court stated:

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

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

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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

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).

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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.

(Supp. 1996).

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