Clark v. State

• Citation: 321 S.C. 377,468 S.E.2d 653
• Decision Date: 25 March 1996
• Docket Number: No. 24398,24398
• Parties: Michael D. CLARK, Petitioner, v. STATE of South Carolina, Respondent.
• Court: United States State Supreme Court of South Carolina

Page 653

468 S.E.2d 653

321 S.C. 377

Michael D. CLARK, Petitioner, v. STATE of South Carolina, Respondent.

No. 24398.

Supreme Court of South Carolina.

Submitted Feb. 21, 1996.

Decided March 25, 1996.

Assistant Appellate Defender Lisa T. Gregory of the South Carolina Office of Appellate Defense, Columbia, for appellant.

Attorney General Charles Molony Condon, Deputy Attorney General John W. McIntosh, Assistant Attorney General Teresa Nesbitt Cosby, all of the Attorney General's Office; and General Counsel Larry C. Batson, Deputy General Counsel Robert E. Petersen, and J. Pamela Price, both of S.C. Dept. of Corrections, Columbia, for respondent.

ON WRIT OF CERTIORARI

PER CURIAM:

We granted certiorari to review the denial of Post-Conviction Relief (PCR) to Petitioner, Michael Clark. We reverse and remand.

FACTS

On March 17, 1993, Clark pled guilty in federal court to possession of a sawed off shotgun. He was sentenced to 10 years in prison. Thereafter, pursuant to a plea agreement that his state convictions would run concurrently with his federal sentence, Clark pled guilty in state court to three counts of armed robbery, assault and battery of a high and aggravated nature, attempted armed robbery, and common-law robbery. He was sentenced to concurrent terms of 25 years for each armed robbery, and ten years for each of the remaining charges. In accordance with the State's recommendation, the plea judge ordered the sentences to run concurrently to Clark's federal sentence. Rather than being transported to federal custody, however, Clark was taken to state prison, where he has been since his plea. Clark filed for PCR claiming his plea bargain was not being enforced as his federal sentence is not running concurrently with his state sentence. At the PCR hearing, the parties essentially conceded Clark's federal sentence is not running concurrently with his state sentence. The PCR court nonetheless denied Clark's application,

finding he should seek clarification of his sentence from the plea judge. ¹

DISCUSSION

The sentence of a person convicted of a federal offense commences to run from the date on which such person is received at the penitentiary. Thomas v. Whalen, 962 F.2d 358 (4th Cir.1992); United States v. Huss, 520 F.2d 598 (1975). A federal court is powerless to impose a concurrent sentence until the defendant has been sentenced by another court. United States v. Neely, 38 F.3d 458 (9th Cir.1994). ²

The determination by federal authorities that a defendant's federal sentence runs consecutive to his or her state sentence is a federal matter which cannot be overridden by a state court provision for concurrent sentencing on a subsequently obtained state court conviction. Bloomgren v. Belaski, 948 F.2d 688 (10th Cir.1991). Although a state trial judge may properly order the sentences which he or she imposes to run concurrently, or consecutively, to each other, a state court is without authority to modify or place conditions on a sentence from a foreign jurisdiction. Ex parte Huerta, 692 S.W.2d 681 (Tex.Crim.1985) (Onion, J. dissenting). Accordingly, it appears the only way to effectuate a state trial court's order that a state sentence run concurrently with a prior federal sentence is to have the defendant returned to federal custody to serve his federal sentence. See In Re Altstatt, 227 Cal.App.2d 305, 38 Cal.Rptr. 616 (1964); In Re Stoliker, 315 P.2d 12 (Cal.1957) (petitioner entitled to have his custody transferred where continued imprisonment in state prison would compel consecutive service of sentences). ³

A plea agreement rests on contractual principles and each party should receive the benefit of their bargain. Thrift v. State, 312 S.C. 282, 440 S.E.2d 341 (1994). When an accused pleads guilty upon a promise of the prosecutor, the agreement must be fulfilled. State v. Thompson, 278 S.C. 1, 292 S.E.2d 581 (1982) overruled on other grounds, State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991) (Toal, J., concurring). "When the State's Attorney has given his word in the form of a plea bargain and that bargain is accepted by the trial court, it behooves the State's Attorney to make every reasonable effort to correct any deviation from the bargain when the deviation is called to his attention." Alston v. State, 38 Md.App. 611, 379 A.2d 754, 757 (App.1978). Once a court accepts a plea agreement, it is bound to honor its promise to perform the agreement, insofar as the terms of the agreement are within the power of the court to order. State v. Rhinehart, 312 S.C. 36, 430 S.E.2d 536 (Ct.App.1993).

It is within the power of the circuit court to order the Department of Corrections (DOC) to deliver Clark to the custody of federal authorities to begin service of his federal sentence. ⁴ Accordingly, the matter is remanded to the circuit court with instructions to take further action in accordance with this opinion.

REMANDED.

1 This Court will not uphold the rulings of the PCR judge where there is no evidence to support them. High v. State, 300 S.C. 88, 386 S.E.2d 463 (1989). There is no evidence to support the finding that clarification of the plea judge's order is necessary. On the contrary, the intent of the order is clear, and the PCR court specifically noted the intent of the trial court was for Clark's sentence to run concurrently. A remand for further clarification would further perpetuate the bureaucratic quagmire in which petitioner finds himself.

2 Prior to 1986, it appears a federal court's recommendation...