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Davis Adv. Sh. No. 4
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court

Richard Carter,      Respondent,

v.

State of South

Carolina,      Petitioner.

ON WRIT OF CERTIORARI

Appeal From Anderson County

H. Dean Hall, Post-Conviction Judge

Frank Eppes, Trial Judge

Opinion No. 24750

Submitted October 22, 1997 - Filed January 19, 1998

REVERSED

BURNETT, A.J.: The State appeals the grant of post

conviction relief (PCR) to respondent. We reverse.

p. 29

FACTS

Respondent was arrested in December 1990 for manufacturing

methamphetamine ("crank") and money laundering. After extensive plea

negotiations, respondent waived presentment of the indictments to the

grand jury and pled guilty to manufacturing methamphetamine and money

laundering. He was sentenced to imprisonment for twenty-five years and

twenty years, respectively, with the sentences to run concurrently. No

direct appeal was taken.

Respondent filed a PCR application alleging ineffective

assistance of counsel and his guilty plea was not voluntarily and

knowingly entered. After an evidentiary hearing, the PCR judge found

respondent's guilty plea counsel ineffective for failing to properly advise

respondent of the maximum penalty respondent could receive on the

indictment for manufacturing methamphetamine. Further, the PCR judge

found there was confusion on the part of the guilty plea judge and the

solicitor during the guilty plea proceeding over the maximum penalty for

manufacturing methamphetamine. Thus, respondent's guilty plea was not

voluntarily and knowingly entered. The PCR judge ordered the pleas

vacated.

ISSUE

DISCUSSION

The State contends the PCR judge erred in finding

respondent's guilty pleas were involuntary due to counsel's advice that the

maximum penalty on the manufacturing charge was a thirty year sentence

for a second offense.1 We agree.

The test for determining the validity of a guilty plea based

upon alleged ineffective assistance of counsel is whether counsel's advice

was within the range of competence demanded of attorneys in criminal

cases and whether there is a reasonable probability that, but for counsel's

errors, the defendant would not have pled guilty. Hill v. Lockhart, 474

U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Ray v. State, 303 S.C. 374,

p. 30

401 S.E.2d 151 (1991); Hinson v. State, 297 S.C. 456, 377 S.E.2d 338

(1989). "A defendant who pleads guilty upon the advice of counsel may

only attack the voluntary and intelligent character of the guilty plea by

showing the advice he received from counsel was not within the range of

competence demanded of attorneys in criminal cases." Richardson v. State,

310 S.C. 360, 363, 426 S.E.2d 795, 797 (1993).

Crank is methamphetamine which is a Schedule II drug.

South Carolina Code Ann. § 44-53-370(b)(2) (Supp. 1996) provides a

penalty of ten years imprisonment or a $10,000 fine for a second offense of

manufacturing a Schedule II drug. Schedule II includes

methamphetamine. S.C. Code Ann. § 44-53-210(d) (1976 & Supp. 1996).

"'Crank' means amphetamine or methamphetamine . . . ." S.C. Code Ann.

§§ 44-53-110 (Supp. 1996). South Carolina Code Ann. § 44-53-375, as it

read at the time of petitioner's offense, provided that a person who

violates § 44-53-370 by manufacturing "crank" (methamphetamine) shall be

sentenced to imprisonment for no less than twenty-five years and no more

than thirty years and fined no less than $50,000, for a second offense.2

Respondent waived presentment of the indictments to the

grand jury. The indictment is captioned "Manufacturing

Methamphetamine 44-53-370" on both its back and its face. The body of

the indictment states respondent did "unlawfully manufacture

methamphetamine without first obtaining a license to do so."

At the PCR hearing, respondent testified he agreed to enter a

plea of guilty to manufacturing in exchange for a twenty-five year sentence

based on counsel's advice that he was exposed to thirty years.

Additionally, respondent agreed to plead guilty to money laundering in

exchange for a twenty year term of imprisonment which would run

concurrently with the twenty-five year sentence. According to respondent,

he would not have taken the plea agreement on either charge had he

known the manufacturing charge only carried a potential ten year

sentence.

Counsel testified that plea negotiations were based on

respondent being sentenced under § 44-53-375 which carried a more severe

penalty than the general statute, § 44-53-370. Therefore, counsel's advice

for no more than twenty-five years. S.C. Code Ann. § 44-53-375 (Supp.

1996).

p. 31

to respondent concerning his maximum penalty exposure focused on the

penalties outlined in § 44-53-375.

The PCR judge found respondent's guilty pleas were

involuntary due to counsel's advice that the maximum penalty on the

manufacturing methamphetamine charge was a thirty year sentence for a

second offense. According to the PCR judge, because respondent was

indicted under § 44-52-370, the maximum sentence exposure for a second

offense was ten years. The PCR judge found counsel's misadvice as to

respondent's maximum sentence exposure affected both the plea to the

manufacturing charge and the plea to the money laundering charge

because respondent would not have accepted the negotiated sentences had

he been advised the maximum penalty for manufacturing

methamphetamine was ten years.

In our opinion, counsel's advice was correct; therefore, counsel's

performance was not deficient and he was not ineffective. Once a

defendant is convicted under § 44-53-370, the sentencing guidelines for this

conviction involving the Schedule II drug methamphetamine (crank) is set

forth in § 44-53-375. Counsel correctly recognized that a conviction under

§ 44-53-370 for manufacturing crank would require respondent to be

sentenced under the stricter penalties of § 44-53-375. Thus, counsel

properly advised respondent the maximum penalty he could receive would

be thirty years.

The PCR judge also found because the guilty plea judge and

the solicitor expressed confusion over the appropriate sentencing range

during the guilty plea, respondent's guilty pleas were not voluntarily and

knowingly entered. We disagree.

To find a guilty plea is voluntarily and knowingly entered, the

record must establish the defendant had a full understanding of the

consequences of his plea and the charges against him. Boykin v. Alabama,

395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Dover v. State, 304

S.C. 433, 405 S.E.2d 391 (1991). To ensure the defendant understands,

the trial judge should question the defendant about the facts surrounding

the crime and the punishment which could be imposed. Dover v. State,

suj2ra. However, the trial judge does not have to direct the defendant's

attention to every consequence of his plea provided the record reveals

affi=ative awareness of the consequences of a guilty plea. LoPiano v.

State, 270 S.C. 563, 243 S.E.2d 448 (1978).

p. 32

We conclude respondent's guilty pleas were voluntarily and

knowingly entered. Although there was some confusion over whether the

fine was mandatory and over the sentencing range the guilty plea judge

correctly informed respondent his maximum exposure for a conviction for

manufacturing methamphetamine was thirty years. The record reveals

respondent understood the consequences of his pleas and the charges

against him. Further, respondent's counsel had correctly informed

respondent of the sentencing possibilities; therefore, respondent cannot

complain that his pleas were not voluntarily and knowingly entered.

Richardson v. State, supra.

The underlying issue in this case is whether the guilty plea

judge had subject matter jurisdiction to sentence respondent under § 44-

53-375 since respondent only waived presentment to the grand jury of an

indictment citing § 44-53-370.

Issues related to subject matter jurisdiction may be raised at

any time. Browning v. State, 320 S.C. 366, 465 S.E.2d 358 (1995). Except

for certain minor offenses, the circuit court does not have subject matter

jurisdiction to hear a guilty plea unless (1) there has been an indictment

which sufficiently states the offense; (2) there has been a waiver of

indictment; or (3) the charge is a lesser included charge of the crime

charged in the indictment. Browning v. State, supra; Murdock v. State,

308 S.C. 143, 417 S.E.2d 543 (1992). An indictment is sufficient if the

offense is stated with sufficient certainty and particularity to enable the

court to know what judgment to pronounce, and the defendant to know

what he is called upon to answer and whether he may plead an acquittal

or conviction thereon. Browning v. State, supra. An indictment is

ordinarily sufficient if it is in the language of the statute. State v. Jacobs,

238 S.C. 234, 119 S.E.2d 735 (1961). Further, the plain language of an

indictment is not to be ignored merely because its caption does not

precisely conform with the wording on its face. Crady v. State, 248 S.C.

522, 151 S.E.2d 670 (1966). The test for determining when a crime is a

lesser included offense is whether the greater of the two offenses includes

all the elements of the lesser offense. Murdock v. State, supra.

We find the indictment sufficient. While the caption of this

indictment refers to § 44-53-370, the plain language of the body of the

indictment clearly notifies respondent that he is charged with

manufacturing methamphetamine. Respondent's counsel informed

respondent of the potential sentence if convicted of this crime and

respondent waived presentment of this indictment.

p. 33

Section 44-53-375 provides a violation of § 44-53-370 that

involves methamphetamine (crank) carries a greater sentence than the

sentence provided for in § 44-53-370 for other Schedule II drugs.

Therefore, § 44-53-375 does not define a separate crime but only an

enhanced punishment. Further, the elements are exactly the same for an

offense under both sections. Thus, the guilty plea judge had subject

matter jurisdiction to accept respondent's pleas, and respondent was

properly sentenced under § 44-53-375.

REVERSED.

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

p. 34