State v. Rosier, 2102
| Decision Date | 07 September 1993 |
| Docket Number | No. 2102,2102 |
| Citation | 439 S.E.2d 307,312 S.C. 145 |
| Court | South Carolina Court of Appeals |
| Parties | The STATE, Respondent, v. Jerry L. ROSIER, Appellant. . Heard |
Robert G. Howe, Charleston, for appellant.
Attorney General T. Travis Medlock, Deputy Chief Atty. Gen. Donald J. Zelenka, Asst. Atty. Gen. Harold M. Coombs, Jr., Columbia, and Sol. Barbara R. Morgan, Aiken, for respondent.
Jerry L. Rosier was indicted for assault and battery with intent to kill. At a hearing held on May 18, 1992, Rosier pleaded guilty to this charge. At another hearing held on May 21, 1992, he moved to withdraw his guilty plea. The circuit court denied the motion and sentenced Rosier to twenty years in prison suspended upon service of ten years and five years probation. Rosier appeals the denial of his motion to withdraw the guilty plea prior to his sentencing. We affirm.
Prior to the May 18th hearing, Rosier's attorney, Howe, and Solicitor Gibbons discussed a plea bargain which would "cap" Rosier's sentence at ten years. Howe states he interpreted this to mean the sentence would not exceed ten years. This apparently is what Howe relayed to Rosier. The Solicitor testified that he understood the sentence would be twenty years with a cap of ten years on the suspended portion. The Solicitor further testified, however, that there was no mention in the discussion between him and Howe of a twenty year sentence.
At the May 18th hearing, the circuit judge questioned Rosier and Howe about the plea and the plea bargain:
On May 19th, Howe sent a letter to the Solicitor pointing out Howe's belief there was a misunderstanding concerning the plea bargain he and the Solicitor had worked out. A copy of this letter was sent to the circuit judge on May 20th. The record reflects the judge received this letter prior to the May 21st hearing.
The record further reflects that at the May 18th hearing, the circuit judge, prior to accepting Rosier's guilty plea, asked him if he was under the influence of alcohol or drugs. Rosier replied, "No, sir." At the May 21st hearing, Howe told the circuit judge that after the May 18th hearing, Rosier told him that at the time he entered his guilty plea, he was under the influence of prescription medication. 2 According to Howe, Rosier believed the judge was referring to "street drugs" when he asked Rosier if he was under the influence of drugs.
1. Rosier first argues that his plea was not knowing and voluntary because he misunderstood the plea bargain and the possible resulting sentence. The main reason Rosier objected to the twenty year sentence suspended upon service of ten is related to his parole eligibility. His attorney argued that with a twenty year sentence suspended to ten years service, parole eligibility is based on the twenty years and not the ten year cap. On the other hand, if Rosier received a straight ten year sentence, he would be eligible for parole sooner.
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); State v. Lambert, 266 S.C. 574, 225 S.E.2d 340 (1976). Once a defendant enters a guilty plea, however, it is within the sound discretion of the trial judge whether to allow withdrawal of that plea. State v. Riddle, 278 S.C. 148, 292 S.E.2d 795 (1982).
The record amply supports the circuit court's finding that Rosier understood the plea bargain. In the passage quoted above, the judge stated no fewer than three times that the plea bargain was based on a twenty year sentence with a ten year cap on the suspended portion. When the judge asked Rosier if he understood this, Rosier responded, "Yes, sir." Howe also indicated, when asked by the judge, that he understood the plea bargain to be twenty years suspended with a cap not to exceed ten years on the suspended portion.
Moreover, even if Rosier misunderstood the plea agreement, the outcome would be no different. A court is not required to accept a plea agreement that has been reached by the State and the defendant. Sartin v. Georgia, 201 Ga.App. 612, 411 S.E.2d 582 (1991). Before imposing sentence, the circuit judge stated that he was not sentencing on the basis of the plea bargain, but rather was sentencing on Rosier's voluntary plea. It was within his discretion to do so.
2. Rosier also argues that he was under the influence of prescription medications which affected his ability to enter a knowing and voluntary plea.
In a law case tried without a jury, questions regarding the credibility and weight of evidence are exclusively for the court. Sheek v. Crimestoppers Alarm Systems, 297 S.C. 375, 377 S.E.2d 132 (Ct.App.1989). The determination of credibility must be left to the trial judge who saw and heard the witnesses and is therefore in a better position to evaluate their veracity. Id.
The circuit judge observed Rosier at both the May 18th and the May 21st hearings. He determined Rosier was not so affected by medication that he did not know what he was doing and voluntarily entered his guilty plea on May 18th. The circuit judge stated that he did not believe Rosier's later testimony on May 21st and that Rosier was "faking" with the court. We see nothing that requires the court's findings in this regard to be set aside.
CONNOR, J., dissents in a separate opinion.
I would reverse and remand.
The record reveals that both Rosier's attorney (Howe) and the Solicitor in charge of prosecuting Rosier (Gibbons) discussed a plea bargain in which Rosier would plead guilty to Assault and Battery with Intent to Kill (ABIK). Both attorneys agreed that the plea bargain sentence would be "capped at ten years." Howe argued that he interpreted the plea bargain to mean the sentence would not exceed ten years. This is apparently what Howe relayed to his client.
The day after the May 18 hearing and prior to the judge accepting the guilty plea, Howe sent the Solicitor a letter pointing out the misunderstanding about the plea bargain. A copy of this letter was sent via facsimile to the trial judge on May 20. The relevant parts of that letter are:
I received a call from Barbara Morgan around lunch time yesterday and thereafter called Judge Peeples who, in turn, called me and requested that I immediately travel to Barnwell, which I did arriving at approximately 5:30, having talked to the Judge at approximately 3:15. Ms. Morgan had said there was a possibility of a plea to assault and battery of a high and aggravated nature which carries a maximum of 10 years. When I arrived we discussed that, however, I was then told it would actually be a 10 year cap under the assault and battery with intent to kill statute. The first time I heard 20 years suspended on 10 was when the Judge discussed same at the plea. As you might remember, I simply told the Judge I understood there was a cap of 10. Obviously, 20 years suspended on 10 is far different from 10 years....
The 20 years suspended upon 10 years is not what we discussed and it is virtually identical to a 20 year sentence. Under a 20 years [sic] sentence, Mr. Rosier would be eligible for parole after approximately 6 1/2 years. Under a 20 year suspended upon 10, he would be eligible in the same time or would max out his 10 year sentence in approximately 5 1/2 years, if not 6. I discussed the 10 years with my client and the likelihood that he would be eligible after approximately 3 years and that was his understanding just prior to entering his plea, which was my understanding....
During the discussion between Ms. Morgan, myself, and you, the 10 year cap was to be identical to a plea to assault and battery of a high and aggravated nature which carries 10 years, other than the fact that the defendant would pull one-third as opposed to one-fourth before being eligible for parole. The crime itself is consistent with assault and battery of a high and aggravated nature, as opposed to intent to kill, however, I agreed to a 10 year cap to cut Mr. Rosier's exposure as there was a "possibility" that he might be found guilty of the more serious allegation. In any event, the posture of the case is obviously not what the 3 of us intended or discussed.
I apologize for the misunderstanding, however, the Judge's interpretation or understanding of what we agreed to is simply not what we agreed to.
The record...
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...in a better position to evaluate his or her veracity. Tutton, 354 S.C. at 325-326, 580 S.E.2d at 190 (citing State v. Rosier, 312 S.C. 145, 149, 439 S.E.2d 307, 310 (Ct.App.1993)). Victim testified about the events that took place beginning at approximately age seven. While she could not re......
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