Joseph v. State

• Decision Date: 14 October 2002
• Docket Number: No. 25539.,25539.
• Citation: 351 S.C. 551,571 S.E.2d 280
• Court: South Carolina Supreme Court
• Parties: Marcus A. JOSEPH, Petitioner, v. STATE of South Carolina, Respondent. Marcus A. Joseph, Petitioner, v. State of South Carolina, Respondent.

351 S.C. 551

571 S.E.2d 280

Marcus A. JOSEPH, Petitioner, v. STATE of South Carolina, Respondent.

Marcus A. Joseph, Petitioner, v. State of South Carolina, Respondent.

No. 25539.

Supreme Court of South Carolina.

Heard May 15, 2002.

Decided October 14, 2002.

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

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Allen Bullard, and Assistant Attorney General Douglas E. Leadbitter, all of Columbia, for respondents.

Justice MOORE:

We consolidated these cases because they involve the same underlying guilty pleas. We granted the petitions for writs of certiorari to determine whether grand larceny is a lesser-included offense of armed robbery, whether petitioner's plea to murder was knowingly and voluntarily entered, and whether the plea court lacked subject matter jurisdiction on the murder indictment. We affirm.

FACTS

Petitioner was indicted for murder, armed robbery, accessory before the fact, and possession of a weapon during a violent crime. In 1988, he pled guilty to murder and grand larceny and was sentenced to life imprisonment and a concurrent ten-year sentence, respectively. No direct appeal was taken.

After a hearing on petitioner's post-conviction relief (PCR) action, the PCR court ruled the plea court did not have subject matter jurisdiction to accept petitioner's plea to grand larceny because grand larceny is not a lesser-included offense of armed robbery. His conviction for grand larceny was vacated. The PCR court denied petitioner's claim that his entire guilty plea was rendered unknowing and involuntary because the plea court lacked jurisdiction to accept his plea to grand larceny.

Petitioner also filed for a writ of habeas corpus before a different judge. After a hearing, the habeas court denied petitioner's claim that the plea court lacked subject matter jurisdiction to accept his plea to murder due to an insufficient indictment.

Johnson¹ petitions were filed in both the PCR and the habeas cases. The Court granted the petitions for a writ of certiorari in both cases after the Johnson issues in the PCR case had been briefed.

ISSUES

I. Whether the PCR court erred by finding grand larceny is not a lesser-included offense of armed robbery?

II. If the plea court did not have subject matter jurisdiction to accept petitioner's plea to grand larceny, was petitioner's plea to murder knowingly and voluntarily entered?

III. Whether the plea court lacked subject matter jurisdiction on the murder indictment since the indictment omitted the words "wilfully" and "feloniously?"

DISCUSSION

I

The circuit court does not have subject matter jurisdiction to convict a defendant of an offense unless there is an indictment which sufficiently states the offense, the defendant waives presentment, or the offense is a lesser-included offense of the crime charged in the indictment. State v. Owens, 346 S.C. 637, 552 S.E.2d 745 (2001). The test for determining when an offense is a lesser-included offense of another is whether the greater of the two offenses includes all the elements of the lesser offense. State v. McFadden, 342 S.C. 629, 539 S.E.2d 387 (2000). If the lesser offense includes an element which is not included in the greater offense, then the lesser offense is not included in the greater offense. Hope v. State, 328 S.C. 78, 492 S.E.2d 76 (1997).

Larceny involves the taking and carrying away of the goods of another, which must be accomplished against the will or without the consent of the other. State v. Brown, 274 S.C. 48, 260 S.E.2d 719 (1979). Specifically, grand larceny is the felonious taking and carrying away of the goods of another, where the value exceeds $200. See S.C.Code Ann. § 16-13-30 (1985) (stating petit larceny involves stolen goods whose value is less than $200); State v. Moultrie, 283 S.C. 352, 322 S.E.2d 663 (1984) (grand larceny is felonious taking and carrying away of goods of another, where value exceeds $200).² Robbery is defined as the felonious or unlawful taking of money, goods, or other personal property of any value from the person of another or in his presence by violence or by putting such person in fear. State v. Drayton, 293 S.C. 417, 361 S.E.2d 329 (1987), cert. denied, 484 U.S. 1079, 108 S.Ct. 1060, 98 L.Ed.2d 1021 (1988). Armed robbery occurs when a person commits robbery while armed with a deadly weapon. Id,

Larceny has been found to be a lesser-included offense of robbery by this Court on several occasions. See State v. Austin, 299 S.C. 456, 385 S.E.2d 830 (1989)

(petit larceny is lesser-included of strong armed robbery); State v. Harkness, 288 S.C. 136, 341 S.E.2d 631 (1986) (petit larceny is lesser of robbery); State v. Lawson, 279 S.C. 266, 305 S.E.2d 249 (1983) (grand larceny is lesser-included of robbery); State v. Brown, supra (larceny, without indicating whether petit or grand, is lesser of robbery); Young v. State, 259 S.C. 383, 192 S.E.2d 212 (1972) (grand larceny is lesser-included of robbery). See also State v. Ziegler, 274 S.C. 6, 260 S.E.2d 182 (1979) (in dicta, Court stated one may be guilty of armed robbery which involves grand larceny or petit larceny).³

We now overrule the cases of State v. Lawson, Young v. State, and State v. Ziegler to the extent they found grand larceny to be a lesser-included offense of robbery. It is well-settled that the monetary value of the goods taken is an element of the offense of grand larceny. See Johnson v. State, 319 S.C. 62, 459 S.E.2d 840 (1995)

(grand larceny involved taking and carrying away of goods valued at $200 or more; value is element of grand larceny offense); State v. Ates, 297 S.C. 316, 318, 377 S.E.2d 98, 99, n. 1 (1989) (in grand larceny prosecution, value is critical element; it is State's burden to prove value of stolen goods exceeds $200); State v. Moultrie, supra (defining grand larceny as felonious taking and carrying away of goods of another, where value exceeds $200); State v. Humphery, 276 S.C. 42, 274 S.E.2d 918 (1981) (trial court did not abuse discretion in allowing State to reopen case and prove value an essential element of grand larceny); State v. Smith, 274 S.C. 622, 266 S.E.2d 422 (1980) (grand larceny is felony which includes all elements of lesser offense of petit larceny except that grand larceny involves theft of goods valued at fifty dollars or more); State v. Bethea, 126 S.C. 497, 120 S.E. 239 (1923) (to convict of grand larceny there must be proof property was worth $20 or more). Grand larceny cannot be a lesser-included offense of armed robbery because the offense of armed robbery does not include the element that the value of the goods taken must exceed a certain amount. See Hope v. State, supra (if lesser offense includes element which is not included in greater offense, then lesser offense is not included in greater offense).

Consequently, the PCR court properly vacated petitioner's conviction for grand larceny. The indictment in this case charges the crime of armed robbery and appears to describe the crime of grand larceny.⁴ However, the plea court lacked subject matter jurisdiction to sentence petitioner for grand larceny because the indictment specifically charged armed robbery, which does not include all the elements of grand larceny. See State v. Summers, 276 S.C. 11, 274 S.E.2d 427 (1981)

(conviction may be had of offense different from one specifically charged only when such offense is essential element of that charged and only when greater offense charged includes all legal and factual elements of lesser offense), overruled in part on other grounds by State v. McFadden, 342 S.C. 629, 539 S.E.2d 387 (2000); State v. Fennell, 263 S.C. 216, 209 S.E.2d 433 (1974) (same). See also State v. Owens, supra (court does not have subject matter jurisdiction to convict defendant unless offense is lesser-included offense of crime charged in indictment).

Accordingly, because the plea court lacked subject matter jurisdiction to accept petitioner's plea of guilty to grand larceny, the PCR court properly vacated petitioner's grand larceny conviction.

II

Petitioner argues the PCR court erred by finding his plea to murder was knowingly and voluntarily entered since the murder and grand larceny pleas were entered pursuant to a "package deal."

Petitioner was indicted for murder, armed robbery, accessory before the fact, and possession of a weapon during the commission of a violent crime. He pled guilty to murder and grand larceny.

The solicitor recommended a sentence of life with eligibility for parole in twenty years on the murder charge with the grand larceny sentence to run concurrently. The plea court asked petitioner whether he understood that the court did not have to accept the solicitor's recommendation, and petitioner indicated he so understood and still wished to plead guilty. The plea court asked petitioner whether his attorneys had done everything he asked of them; whether he was pleading guilty of his own free will and accord; whether he was guilty; and whether he understood that he was giving up his constitutional rights to remain silent and to a jury trial. Petitioner answered yes to these questions. Petitioner answered no when the plea court asked if anyone had promised him anything or threatened him to acquire his guilty plea, and when he was asked if he was under the influence of alcohol or drugs. The court accepted the recommendation and sentenced petitioner accordingly.

At the PCR hearing, arguments were heard but petitioner did not present any testimony. The court denied petitioner's claim that his entire guilty plea was rendered unknowing and involuntary by the trial court's lack of jurisdiction to accept his plea to grand larceny. The PCR court stated the evidence revealed that petitioner entered his guilty plea freely, knowingly, intelligently, and voluntarily....