Jernigan v. State

• Decision Date: 13 March 2000
• Docket Number: No. 25087.,25087.
• Citation: 531 S.E.2d 507,340 S.C. 256
• Court: South Carolina Supreme Court
• Parties: Darryl Vincent JERNIGAN, Petitioner, v. STATE of South Carolina, Respondent.

340 S.C. 256

531 S.E.2d 507

Darryl Vincent JERNIGAN, Petitioner, v. STATE of South Carolina, Respondent.

No. 25087.

Supreme Court of South Carolina.

Submitted December 15, 1999.

Filed March 13, 2000.

Refiled May 1, 2000.

Assistant Appellate Defender Robert M. Pachak, of the South Carolina Office of Appellate Defense, of Columbia, for petitioner.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, and Assistant Deputy Attorney General Teresa A. Knox, all of Columbia, for respondent.

ORDER

This matter is before us on Petitions to Stay Remittitur and for Rehearing to review our decision in Jernigan v. State, Op. No. 25087 (filed March 13, 2000) (Shearouse Adv. Sh. No. 10 at 21). The opinion heretofore filed is withdrawn and the attached opinion is substituted in its place. The Petitions to Stay Remittitur and for Rehearing are denied.

/s/ Jean H. Toal, Acting C.J. /s/ James E. Moore, J. /s/ John H. Waller, Jr., J. /s/ E.C. Burnett, III, J.

FINNEY, C.J., not participating.

WALLER, Justice:

The Court granted a writ of certiorari to review the summary dismissal of Darryl Jernigan's (petitioner) post-conviction relief (PCR) action. We vacate and remand for further proceedings.

FACTS

On February 17, 1983, petitioner pled guilty to armed robbery which was committed on May 27, 1982. Petitioner filed an application for PCR on September 9, 1996. Subsequent to filing the PCR action, he amended his PCR application to add an ex post facto claim due to a change from annual review for parole to biannual review.

The PCR court summarily dismissed the PCR action based upon the statute of limitations, S.C.Code Ann. § 17-27-45(A) (Supp.1998), and Peloquin v. State, 321 S.C. 468, 469 S.E.2d 606 (1996) (holding that all defendants convicted prior to the effective date of the statute, July 1, 1995, must be allowed until July 1, 1996, to file an application). Petitioner filed a motion to alter or amend the judgment of the PCR court. At the hearing on the motion, petitioner testified that he filed his amendment to the PCR application within one year of discovering that his parole review had changed to biannual review. The PCR court denied the motion to alter or amend the judgment.

We granted the petition for a writ of certiorari to determine whether a change from annual parole review to biannual review for violent offenders violates the Ex Post Facto Clause.

ISSUES

I. Did the PCR court err in summarily dismissing petitioner's claim?

II. Does the change from annual parole review to biannual review violate the Ex Post Facto Clause?

DISCUSSION

I. Summary Dismissal

Because petitioner filed his ex post facto claim within one year of discovering that his parole review had changed to biannual review, he argues that the PCR court erred in summarily dismissing his PCR action.

Due to our recent decision in Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000), whether summary dismissal was proper is no longer an issue. Pursuant to Al-Shabazz, an ex post facto claim is not appropriate for PCR. The Al-Shabazz Court held that "PCR is a proper avenue of relief only when the applicant mounts a collateral attack challenging the validity of his conviction or sentence as authorized by Section 17-27-20(a)." Id. at 367, 527 S.E.2d at 749 (emphasis in original).¹ Since petitioner's ex post facto claim is not a collateral attack on the validity of his conviction or sentence, it is not cognizable under the PCR statute. Instead, an ex post facto claim is considered a non-collateral matter. We held in Al-Shabazz that if an inmate raises a non-collateral matter with the Department of Corrections (DOC), then the state Administrative Procedures Act (APA) applies and an inmate may seek review of the DOC's final decision under the APA. Id. at 369, 527 S.E.2d at 750. The Al-Shabazz decision applies to all pending PCR actions in which the DOC has decided a non-collateral matter and the inmate has not had the opportunity to obtain APA review. Id. at 384, 527 S.E.2d at 758.

Accordingly, as a non-collateral matter, petitioner's ex post facto claim should be remanded to the appropriate agency to allow it to make a final decision on petitioner's claim. However, it is unclear from the record whether the DOC made the decision to retroactively apply the law changing parole review to every two years, or whether the Department of Probation, Pardon and Parole Services (DPPPS) is the agency responsible for this decision. We therefore remand this matter to the circuit court to determine whether the case should be remanded to the DOC or the DPPPS.

II. Ex Post Facto Claim

Petitioner argues that the change in his parole review from annual to biannual review constitutes an ex post facto violation.² We agree.

Petitioner committed armed robbery in 1982.³ At that time, parole review commenced after an inmate served onefourth of his sentence, and if parole was denied, the inmate's case would then be reviewed "every twelve months thereafter." S.C.Code Ann. § 24-21-620 (Supp.1981). In 1986, the Legislature enacted the Omnibus Crime Act. One section of the legislation defined violent crimes, and armed robbery is specifically enumerated as a violent crime. See S.C.Code Ann. § 16-1-60 (Supp.1998). After an initial denial of parole, those convicted of violent crimes will be reconsidered for parole "every two years." S.C.Code Ann. § 24-21-645 (Supp.1998).

An ex post facto violation occurs when a change in the law retroactively alters the definition of a crime or increases the punishment for a crime. E.g., Lynce v. Mathis, 519 U.S. 433, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997); California Dep't of Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995); Farris v. State, 334 S.C. 21, 511 S.E.2d 688 (1999). Regarding the issue of increase of punishment, the relevant inquiry is whether the legislative amendment "produces a sufficient risk of increasing the measure of punishment attached to the covered crimes." Morales, 514 U.S. at 509, 115 S.Ct. at 1603, 131 L.Ed.2d at 597. If the amendment produces only a "speculative and attenuated possibility" of increasing an inmate's punishment, then there is no ex post facto violation. Id. A court should look at the effect of the statute on the "quantum of punishment" to determine whether an amendment offends the Ex Post Facto Clause. Lynce, 519 U.S. at 444-45, 117 S.Ct. at 897, 137 L.Ed.2d at 73.

The retroactive application of section 24-21-645, which results in a change from annual to biannual parole reconsideration for violent offenders, has been challenged several times, and both this Court and the federal courts have addressed the claim in published opinions. In Gunter v. State, 298 S.C. 113, 378 S.E.2d 443 (1989), the petitioner argued that the change to biannual parole review violated the Ex Post Facto Clauses of the United States and South Carolina Constitutions. This Court stated that "the standards governing petitioner's parole eligibility have not been changed. Instead, only the frequency with which petitioner can be reconsidered for parole has been altered." Id. at 115-16, 378 S.E.2d at 444. Thus, the Court held that there was no ex post facto violation.

However, in Griffin v. State, 315 S.C. 285, 433 S.E.2d 862 (1993),cert. denied, 510 U.S. 1093, 114 S.Ct. 924, 127 L.Ed.2d 217 (1994), we overruled this holding of Gunter. The Griffin court adopted the decision of the Fourth Circuit Court of Appeals in Roller v. Cavanaugh, 984 F.2d 120 (4th Cir.1993) (Roller I). In Roller I, the Fourth Circuit stated that it was "not willing to disparage the `substance' of a year, especially a year in prison," and found that the change to biannual review was not merely procedural. Id. at 123. The Roller I court held that the change from annual parole review to biannual review offended ex post facto principles. Finding the Fourth Circuit's analysis compelling, this Court in Griffin adopted the holding of Roller I.

In 1995, the United States Supreme Court decided California Dep't of Corrections v. Morales. The Morales Court evaluated an amended California statute directed at inmates who had been convicted of "more than one offense which involves the taking of a life." Under the law in effect at the time of Morales' second murder, he was eligible for parole hearings on an annual basis. The amended statute, directed specifically at those who had killed more than once, gave the parole board the discretion to defer parole review for up to three years if the board found that is was not reasonable to expect that the inmate would be granted parole during the interval. The statute directed the board to state the bases for its finding that parole review should be deferred. Morales, 514 U.S. at 503, 115 S.Ct. at 1600, 131 L.Ed.2d at 593.

The Morales Court stated that the amendment created "only the most speculative and attenuated possibility of producing the prohibited effect of increasing the measure of punishment for covered crimes, and such conjectural effects are insufficient under any threshold" which might be established under the Ex Post Facto Clause. Id. at 509, 115 S.Ct. at 1603,131 L.Ed.2d at 597. In deciding that there was an insufficient risk of increasing punishment under the amended statute, the Court focused on several aspects of the statute. First, the law applied "only to a class of prisoners for whom the likelihood of release on parole is quite remote." Id. at 510, 115 S.Ct. at 1603,131 L.Ed.2d at 597. Second, the parole board's authority under the statute was carefully tailored in that the board was required to find it was not reasonably expected that the inmate would be granted parole at a hearing in the following years. The Morales Court noted that this was "`no arbitrary decision'" because the board would first have to conduct a complete hearing and, if it chose to defer the next parole review for more than a year, it had to state the bases of that finding. Id. at 511, ...