Koon v. State

• Decision Date: 05 April 2004
• Docket Number: No. 25798.,25798.
• Court: South Carolina Supreme Court
• Parties: Robert H. KOON, Petitioner, v. STATE of South Carolina, Respondent.

358 S.C. 359

595 S.E.2d 456

Robert H. KOON, Petitioner, v. STATE of South Carolina, Respondent.

No. 25798.

Supreme Court of South Carolina.

Submitted February 19, 2004.

Decided April 5, 2004.

Rehearing Denied May 14, 2004.

Andrew David Grimes, of Summerville, for Petitioner.

Attorney General Henry D. McMaster, Chief Deputy Attorney General John W. McIntosh, Chief Capital & Collateral Litigation Donald Zelenka, and Assistant Attorney General Douglas E. Leadbitter, all of Columbia, for Respondent.

Justice WALLER:

Petitioner filed this petition for a writ of certiorari pursuant to Austin v. State, 305 S.C. 453, 409 S.E.2d 395 (1991), addressing the questions petitioner sought to have reviewed from the order denying his 1987 PCR application. We affirm the denial of relief in part, but vacate one of petitioner's convictions because we find that the trial court lacked subject matter jurisdiction to accept a guilty plea to one of the second-degree burglary charges.

FACTS

Petitioner pled guilty to four counts of second-degree burglary in 1986. He was sentenced to ten years imprisonment, concurrent, on each count. No direct appeal was taken. Petitioner filed a PCR application in 1987. That application was denied following a hearing, and petitioner did not seek certiorari.¹

In 1997, petitioner filed a PCR application related to other charges. At that hearing, petitioner sought to amend his application to include an allegation that the circuit court did not have subject matter jurisdiction to accept his 1986 guilty pleas. The PCR judge ordered that the subject matter jurisdiction issue be addressed in a separate PCR application.

In March 2001, a hearing was held in the circuit court on the subject matter jurisdiction issue and petitioner's Austin claim. The PCR judge denied relief as to the subject matter jurisdiction claim. As to petitioner's Austin claim, the PCR judge found petitioner knowingly and voluntarily waived his right to appellate review of the denial of his first PCR application.

Petitioner filed a petition for a writ of certiorari, and this Court found there was no evidence to support the PCR judge's finding that petitioner knowingly and voluntarily waived his right to seek appellate review of the denial of his 1987 PCR application. Accordingly, the Court ordered petitioner to serve and file a petition, pursuant to Austin, addressing the questions petitioner sought to have reviewed from the order denying his 1987 PCR application.

ISSUES

1. Did the circuit court have jurisdiction to accept petitioner's pleas to second-degree burglary?

2. Would petitioner's due process rights be violated if the Court fails to remand the matter to the circuit court to have the 1987 PCR hearing record reconstructed?

1. SUBJECT MATTER JURISDICTION

Petitioner claims the circuit court lacked subject matter jurisdiction over three of his second-degree burglary indictments because the indictments allege petitioner broke into a "dwelling" instead of a "building." We disagree.

Three of petitioner's four indictments specifically allege that: (1) petitioner was charged with second-degree burglary; (2) petitioner entered without consent; (3) petitioner entered with the intent to commit a crime therein; and, (4) petitioner entered during the nighttime. However, the indictments each allege, respectively, that petitioner entered the "dwelling of Cudd-Lovelace Insurance Company," the "dwelling of Bill Willard," and the "dwelling of P & G Motors." The only evidence presented at the plea hearing was that the "dwellings" were actually businesses, including evidence that the "dwelling of Bill Willard" was actually an office adjacent to P & G Motors. None of the indictments specify whether petitioner was indicted under S.C.Code Ann. § 16-11-312(A) or (B) (2003).

Section 16-11-312(A) states that a person is guilty of burglary in the second degree if that person enters a dwelling without consent and with the intent to commit a crime therein. Section 16-11-312(B) states that a person is guilty of burglary in the second degree if that person enters a building without consent and with the intent to commit a crime therein, and one or more aggravating factors is present. One of the aggravating factors is that the burglary occurred in the nighttime.²

Petitioner argues the second-degree burglary indictments for the dwellings of Cudd-Lovelace, P & G Motors, and Bill Willard do not allege the essential elements of second-degree burglary under § 16-11-312(A) because the indictments allege petitioner entered "dwellings" at night rather than during the day. Petitioner also contends the indictments do not allege the essential elements of second-degree burglary under § 16-11-312(B) because the indictments fail to allege that petitioner entered a building, and that a dwelling is not necessarily a building.

Initially, it must be noted that petitioner argued at the 2001 PCR hearing that the trial court lacked subject matter jurisdiction over the 1986 second-degree burglary indictments. In his order denying relief on the subject matter jurisdiction issue, the PCR judge took judicial notice of an unpublished Court of Appeals decision involving petitioner's direct appeal of a separate conviction. In that case, petitioner was appealing his 1997 convictions for second-degree burglary and grand larceny, for which he was sentenced to life without parole (LWOP) because the 1986 second-degree burglary convictions were serious offenses.³ The Court of Appeals rejected petitioner's argument that the indictments could not be used as predicate offenses under the recidivist statute because the indictments alleged petitioner entered a "dwelling" instead of a "building." State v. Koon, Op. No.2000-UP-291 (S.C. Ct. App. filed April 18, 2000). The Court of Appeals found that three of the four 1986 indictments were correctly used as predicate offenses to sentence petitioner to LWOP as a recidivist because the indictments were sufficient to identify which subsection of the second-degree burglary statute petitioner pled guilty to. This Court denied the subsequent petition for a writ of certiorari to the Court of Appeals. Accordingly, the PCR judge denied petitioner's subject matter jurisdiction allegation because the Court of Appeals and this Court had already rejected the claim.

Because petitioner previously litigated and lost this argument before the Court of Appeals and on certiorari to this Court, petitioner should be precluded from making the same argument in his Austin brief. Jinks v. Richland County, 355 S.C. 341, 585 S.E.2d 281 (2003) (collateral estoppel prevents a party from relitigating in a subsequent suit an issue actually and necessarily litigated and determined in a prior action); Doe v. State, 294 S.C. 125, 363 S.E.2d 106 (1987). However, because the precise issue litigated did not involve subject matter jurisdiction, and because the State failed to raise collateral estoppel as an affirmative defense in its brief, we have addressed the issue on the merits.

A circuit court has subject matter jurisdiction if: (1) there has been an indictment that sufficiently states the offense; (2) there has been a waiver of indictment; or (3) the charge is a lesser-included offense of the crime charged in the indictment. Locke v. State, 341 S.C. 54, 56, 533 S.E.2d 324, 325 (2000); State v. Johnston, 333 S.C. 459, 462, 510 S.E.2d 423, 424 (1999). An indictment is sufficient to convey jurisdiction if it apprises the defendant of the elements of the offense intended to be charged and informs the defendant of the circumstances he must be prepared to defend. Granger v. State, 333 S.C. 2, 4, 507 S.E.2d 322, 323 (1998) (citing State v. Evans, 322 S.C. 78, 470 S.E.2d 97 (1996)). An indictment phrased substantially in the language of the statute that creates and defines the offense is ordinarily sufficient. State v. Shoemaker, 276 S.C. 86, 88, 275 S.E.2d 878, 879 (1981). Subject matter jurisdiction may be raised at any time, including for the first time on appeal. Weinhauer v. State, 334 S.C. 327, 330, 513 S.E.2d 840, 841 (1999); Browning v. State, 320 S.C. 366, 368, 465 S.E.2d 358, 359 (1995).

We find that the three indictments petitioner questions sufficiently set forth the elements of second-degree burglary under § 16-11-312(B), despite the fact that the indictments initially refer to the "buildings" as "dwellings." The indictments specify which structure petitioner was charged with entering, that petitioner entered each structure without consent, that petitioner intended to commit a crime therein, and that petitioner entered in the nighttime, which is one of the aggravating factors. Further, it is clear from the record that petitioner was charged with second-degree burglary for entering buildings, that petitioner pled guilty to second-degree burglary for entering buildings, and that petitioner did not plead guilty to second-degree burglary as a lesser-included offense of first-degree burglary. We hold the indictments sufficiently apprised petitioner of the offense charged and the circumstances he should have been prepared to defend. Granger, id. at 4, 507 S.E.2d at 323.

Petitioner also contends the trial court lacked subject matter jurisdiction in regard to the Stylette burglary indictment. Petitioner argues the Stylette indictment contains a fatal inconsistency because the indictment was issued eight days before the crime was alleged to have occurred.⁴ Petitioner contends that, because there is no evidence the incorrect date was a scrivener's error, the Court should vacate petitioner's second-degree burglary conviction for the Stylette burglary.

In State v. Lark, 64 S.C. 350, 42 S.E. 175 (1902), a murder indictment showed on its face that it was found before the murder was committed. In refusing to arrest the judgment, the Court found that it would be absurd to charge a crime before it was committed, and noted that the indictment indicated the murder was a...