In Interest of Arisha KS

• Decision Date: 11 May 1998
• Docket Number: No. 2845.,2845.
• Citation: 501 S.E.2d 128,331 S.C. 288
• Parties: In the Interest of ARISHA K.S., a minor under the age of seventeen, Appellant.
• Court: South Carolina Court of Appeals

331 S.C. 288

501 S.E.2d 128

In the Interest of ARISHA K.S., a minor under the age of seventeen, Appellant.

No. 2845.

Court of Appeals of South Carolina.

Submitted March 6, 1998.

Decided May 11, 1998.

Assistant Appellant Defender Robert M. Pachak, of the SC Office of Appellate Defense, Columbia, for appellant.

Attorney General Charles M. Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Columbia; and Solicitor Joseph J. Watson, Greenville, for respondent.

PER CURIAM:

Arisha K.S. (Arisha) pleaded guilty to two charges for second degree lynching and one charge for strong armed robbery, and was sentenced to the Department of Juvenile Justice (DJJ) until released by the authority of the Juvenile Parole Board. We affirm.¹

Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), counsel for Arisha attached to the final brief a petition to be relieved as counsel, stating that he had reviewed the record and concluded Arisha's appeal lacks merit. Although we dismiss the appeal and grant counsel's petition, we respond to the argument which Arisha's counsel raised in the appellate brief.

FACTS

The State filed two petitions against Arisha, a thirteen-year-old juvenile, for acts which she allegedly committed at a middle school. The first petition is based upon charges of second degree lynching and disturbing a school. The second petition included another charge of second degree lynching and strong armed robbery. In exchange for a plea of guilty to two counts of lynching second degree and strong armed robbery, the State agreed to dismiss the charge of disturbing a school and recommended a local evaluation.

During the adjudicatory hearing, the trial judge questioned Arisha about her plea. The following exchange occurred:

Court: Do you understand what's happening here today? Arisha: Yes, ma'am. Court: You have any questions for your attorney or the Court regarding what is happening here today? Arisha: No ma'am. Court: Your attorney has indicated that you will admit to these charges. Is that true? Arisha: Yes, ma'am. Court: Has your attorney done everything you've asked him to do or expected him to do in your representation? Arisha: Yes, ma'am. Court: Are you satisfied with his services? Arisha: Yes, ma'am. Court: Has anybody promised you anything to get you to admit to these charges? Arisha: Yes, ma'am. Court: What have they promised you? Arisha: A local evaluation. Court: Is that all that they've promised you? Arisha: Yes, ma'am. Court: Are you under the influence of any drugs, or alcohol or anything that could impair your judgment here today? Arisha: No, ma'am. Court: Do you understand by admitting to this charge that you're giving up your right to a trial? Arisha: Yes, ma'am.

Immediately after this inquiry, the trial court requested the solicitor present the factual basis for the charges against Arisha. As to the first charge of lynching second degree, the solicitor described the crime as follows:

... [T]hat occurred on October 3rd, 1995, at Sevier Middle School, the victim being one Yvette Voirel.... At that time she was sitting with her brother on the curb and the bus loading zone when the school bus pulled up with a load of individuals on it, and [Arisha] was one of them. She got off the bus with several other individuals. Some words were exchanged and a fight ensued, and the victim was Yvette.

Following this statement, the solicitor offered the following facts to support the second charge of lynching second degree and strong armed robbery:

... [T]hose occurred on October 29th, 1995 the victim being one Katrina ... Shell.... At that time, this individual, [Arisha], and another held down the victim and took $5 from her. That's all.

Without objection from Arisha's counsel, the trial court accepted the plea, adjudicated Arisha a delinquent, and approved a local evaluation.

At the dispositional hearing, DJJ recommended commitment to its facility, rather than probation basing its recommendation on Arisha's most recent school discipline referral of February 4, 1996. On the other hand, Arisha's counsel opposed the recommendation and asked for leniency stating that Arisha "ha[d] no prior adjudications of delinquency" and the "best thing for her would be ... probation." Arisha's Girl Scout leader informed the court that since her expulsion from school, Arisha had regularly participated in a community program sponsored by the City of Greenville.

After considering these recommendations, the trial court sentenced Arisha to DJJ until released by the Juvenile Parole Board.

LAW/ANALYSIS

I.

Arisha's counsel argues her guilty plea failed to comply with the mandates of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Counsel further argues a juvenile must be advised of three constitutional rights before the court may declare the juvenile's plea was knowingly entered. Those rights include the right to a trial, the right to confront his accuser, and the privilege against compulsory self-incrimination.

Federal and state courts have long recognized the principle that a plea of guilty must be intelligently and voluntarily entered to be valid. In Boykin, the United States Supreme Court, added the requirement that the record must affirmatively disclose that a defendant, who pleaded guilty, entered his plea understandingly and voluntarily. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). The Boykin Court essentially made the requirements of Rule 11 of the Federal Rules of Criminal Procedure, which commands an enumeration of the specific federal constitutional rights that are waived upon a guilty plea, applicable to the states. See also Id.; McCarthy v. United States, 394 U.S. 459, 471-472, 89 S.Ct. 1166, 1173-1174, 22 L.Ed.2d 418 (1969) (concluding "prejudice inheres in a failure to comply with Rule 11, for noncompliance deprives the defendant of the Rule's procedural safeguards that are designed to facilitate a more accurate determination of the voluntariness of his plea").

In State v. Armstrong, 263 S.C. 594, 211 S.E.2d 889 (1975), our Supreme Court recognized the finality of a guilty plea when proper safeguards have been afforded a defendant in an adult criminal proceeding. Generally, "the [court] must be certain that the defendant understands the charge and the consequences of the plea and that the record indicates a factual basis for the plea." Armstrong, 263 S.C. at 598, 211 S.E.2d at 891. In Armstrong, our Supreme Court also acknowledged that the "court's warning should include an explanation of the defendant's waiver of constitutional rights and a realistic picture of all sentencing possibilities." Id.

A further explication of Boykin was set forth in State v. Lambert, 266 S.C. 574, 578, 225 S.E .2d 340, 342 (1976), wherein, our Supreme Court stated:

The test established by Boykin v. Alabama, ... is whether the record establishes that a guilty plea was voluntarily and understandingly made. If the record shows that the plea was so entered, then it is not silent as to the waiver of his constitutional rights. We do not read Boykin ... to require that the trial judge direct the defendant's attention to each and every constitutional right and obtain a separate waiver of each. We believe that an enumeration of specific rights waived is not required where the record otherwise reveals affirmative awareness of the consequences of a guilty plea. (citations omitted).

In accordance with Boykin, our Supreme Court held in Lambert a guilty plea may not be accepted unless it is voluntarily and understandingly made. Lambert, 266 S.C. 574, 225 S.E.2d 340. All that is required to knowingly and voluntarily enter a plea of guilty is that a defendant 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).

The United States Supreme Court has placed significant emphasis on the rights of juveniles. Over thirty years ago, the Court recognized that juvenile proceedings must be conducted with due process in accordance with constitutional safeguards. Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966) (discussing critical importance of fundamental due process and fair treatment afforded juveniles in waiver proceedings); In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) (recognizing adjudicatory hearing of delinquency in juvenile court should be governed by the basic procedural safeguards required by the Fourteenth Amendment due process clause which includes the right to notice of charges, to counsel, to confrontation, to cross-examination and to privilege against self-incrimination); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (acknowledging standard of proof beyond a reasonable doubt was a constitutional mandate to be applied in a delinquency proceeding in addition to those rights required by Gault). Like an adult, a child in a juvenile proceeding has a right to fundamental due process and thus, our courts must ensure that due process and fair treatment surround a juvenile's plea of guilty. See In re Corey, 291 S.C. 108, 352 S.E.2d 470 (1987); In Interest of Dwayne M., 287 S.C. 413, 339 S.E.2d 130 (1986).

II.

In our opinion, application of Boykin has been restricted by the practice which requires counsel to make an objection to the guilty plea before a defendant is entitled to a review of the voluntariness of his plea on direct appeal. See State v. Bradley, 263 S.C. 223, 209 S.E.2d 435 (1974) (finding defendant who failed to assert at trial that his guilty plea was involuntarily entered, was precluded from consideration of such claim on appeal). In State v. McKinney, 278 S.C. 107, 292 S.E.2d 598 (1982), our Supreme Court declined to review for compliance with Boykin's requirements stating that absent a timely objection at a plea proceeding, the...