Breland v. State

• Decision Date: 19 August 1969
• Docket Number: No. 18952,18952
• Court: South Carolina Supreme Court
• Parties: Charles J. BRELAND, Appellant, v. The STATE of S.C., William D. Leeke, Director of The Department of Corrections, and J. J. Thames, Warden of the Wateree River Correctional Institution, Respondents.

Page 604

169 S.E.2d 604

253 S.C. 187

Charles J. BRELAND, Appellant, v. The STATE of S.C., William D. Leeke, Director of The

Department of Corrections, and J. J. Thames,

Warden of the Wateree River Correctional

Institution, Respondents.

No. 18952.

Supreme Court of South Carolina.

Aug. 19, 1969.

deRosset Myers, Charleston, for appellant.

Atty. Gen. Daniel R. McLeod and Asst. Atty. Gen. Emmet H. Clair, Columbia, for respondents.

LEWIS, Justice.

Petitioner-appellant, Charles J. Breland, has appealed from two orders of the lower court denying relief sought by him in successive petitions for a writ of habeas corpus.

Appellant was indicted for rape at the May 1963 term of the General Sessions Court for Charleston County. The penalty for rape is death unless a jury recommends mercy, in which event the punishment is a term not exceeding forty years nor less than five years, at the discretion of the presiding judge. Section 16--72, 1962 Code of Laws. At the time of the disposition of appellant's case, Section 17--553.4 of the Supplement to the 1962 Code of Laws permitted the court to accept a plea of guilty in lieu of a recommendation of mercy by a jury, which reduced the punishment to a term of years instead of death. Appellant pled guilty to the charge of rape on September 9, 1973. The trial judge accepted the plea in accordance with the provisions of Section 17--553.4 and imposed a sentence of twenty one years.

Subsequently, appellant filed a petition for a writ of habeas corpus under date of March 18, 1966, in which he contended that his present confinement in the South Carolina State Penitentiary under the aforesaid sentence was illegal because he was not competently represented by counsel, a statement made by him to the officers was illegally obtained, and his plea of guilty was involuntarily entered. After a hearing on October 27, 1966, an order was issued approximately four months later, on February 16, 1967, denying the relief sought.

After the last mentioned order was filed, Section 17--553.4, under which appellant's plea of guilty was accepted, was declared unconstitutional, as placing an impermissible burden on the constitutional right of a defendant to a jury trial, under the rule announced by the United States Supreme Court in United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138. State v. Harper, 251 S.C. 379, 162 S.E.2d 712.

Following our decision in Harper, appellant filed another habeas corpus petition in which he contended that his plea of guilty should be set aside on the further ground that it was entered under the coercive effect of Section 17--553.4 which had been declared unconstitutional. A hearing was held on this petition on October 21, 1968 and the relief sought was denied under an order issued on January 17, 1969, approximately three months later.

The appeals from the foregoing orders were consolidated and will be considered together. They present, basically, two questions for determination, to wit: (1) was appellant's plea of guilty voluntarily entered and, (2) did any delay in the issuance of the orders by the lower court affect their legality? Included in the first question is whether appellant was competently represented by his court-appointed counsel.

In approaching a determination of the voluntariness of appellant's plea, we must examine the basis of our holding in Harper that Section 17--553.4 was unconstitutional, and its legal effect upon the plea.

Following the decision of the United States Supreme Court in Jackson, we held Section 17--553.4 unconstitutional since its impermissible tendency was to coerce a defendant into waiving a jury trial and entering a plea of guilty solely in order to avoid the death penalty. The evil condemned in the Federal statute, involved in Jackson, and Section 17--553.4, involved in Harper, 'is not that it necessarily Coerces guilty pleas and jury waivers but simply that it needlessly Encourages them.' Jackson further stated: 'A procedure need not be inherently coercive in order that it be held to impose an impermissible burden upon the assertion of a constitutional right. Thus the fact that the Federal Kidnaping Act tends to discourage defendants from insisting upon their innocence and demanding trial by jury hardly implies that every defendant who enters a guilty plea to a charge under the Act does so involuntarily.'

The vice condemned in Section 17--553.4 was that it inevitably 'discourage(d) assertion of the Fifth Amendment right not to plead guilty and to deter exercise of the Sixth Amendment right to demand a jury trial.' Jackson, supra. Nowhere in Jackson or Harper is it held that the Inevitable result of the statutes involved is to make every plea entered under the statutes coerced and involuntary. Therefore, the mere fact that appellant's plea was taken in accordance with the provisions of Section 17--553.4, subsequently declared unconstitutional, did not automatically under Jackson and Harper make the plea coercively entered as a matter of law. Rather the question remains in each case whether the plea was coerced or encouraged by the death penalty power in the jury in the event of a trial.

The foregoing interpretation was placed upon Jackson by the Fourth Circuit Court of Appeals in Alford v. State of North Carolina, 405 F.2d 340. The court stated at page 347 of the opinion:

'We think that a defendant who has pleaded guilty when charged with a capital offense in North Carolina is not necessarily entitled to post-conviction relief as a matter of law. Jackson by defining what are the impermissible burdens of a statutory scheme like that of North Carolina must be read, however, to hold that a prisoner is entitled to relief if he can demonstrate that his plea was a product of those burdens--specifically, that his principal motivation to plead guilty or to forego a trial by jury was to avoid the death penalty. Jackson thus defined a new factor to be given weight in determining the voluntariness of a plea * * *. As we read Jackson, we must determine the extent to which, if at all, petitioner was moved to plead guilty because of the incentive which the North Carolina statutory scheme supplied to achieve that result.'

The question then is whether, under all of the facts and circumstances, appellant's guilty plea was voluntarily entered, considered in the light of the alleged coercive tendency of Section 17--553.4.

While much stress is made in argument that appellant's plea of guilty was entered because of the fear that, if he went to trial, he might receive the death penalty, it is readily apparent that such position is based to a considerable extent upon the contention that Section 17--553.4 was held in Jackson and Harper to have such coercive effect as a matter of law. Our construction of the effect of the holding in those cases rejects such contention.

The main thrust of appellant's contention that his plea was involuntarily entered is his claimed misapprehension as to the nature of the offense embraced in the plea. He testified that he knew he was signing a plea of guilty but thought that he was entering a plea to accessory after the fact of rape and not to rape with a recommendation to mercy. He stated that his attorneys told him that the maximum sentence for accessory after the fact was five years and that with his good record he would get 'either no time at all or even get probation.' He testified as follows as to his reason for pleading guilty: 'I knew they (his attorneys) had conferred with me before coming in and they told me I was pleading guilty to accessory after the fact and that's why I plead guilty, And for that reason only, is why I plead guilty to it.' (Emphasis added).

In addition to appellant's own testimony, the other facts and circumstance show that the fear of the death penalty did not deter him from a trial, but rather that his plea was entered solely because of the claimed representation to him by his counsel that he would not have to serve any time if that course was pursued. We agree with the lower court that neither contention has convincing support in the record.

Appellant is a high school graduate, married, and, at the time of the commission of the alleged crime, had been employed as an agent for a life insurance company for several years. He (age twenty-six), ...