LoPiano v. State, 20665
| Decision Date | 17 April 1978 |
| Docket Number | No. 20665,20665 |
| Court | South Carolina Supreme Court |
| Parties | Kenneth Michael LoPIANO, Appellant, v. The STATE, Respondent. |
Betty M. Sloan, Columbia, for appellant.
Atty. Gen. Daniel R. McLeod, Asst. Atty. Gen. Emmett H. Clair and Staff Atty. Charles H. Richardson, Columbia, for respondent.
The appellant, Kenneth Michael LoPiano, was indicted for murder and attempted housebreaking. With the advice of appointed counsel, LoPiano entered a plea of guilty to voluntary manslaughter and attempted housebreaking, and was sentenced to 28 years imprisonment. This matter is here on appeal from a denial by the lower court of his application for post-conviction relief. He seeks to have his plea of guilty set aside upon the grounds that it was not voluntarily and intelligently given, and that the trial judge failed to ascertain a sufficient factual basis for the plea.
In support of his contention that his plea was not voluntarily and intelligently given, LoPiano maintains that neither the trial judge nor counsel fully and adequately advised him of (1) the elements of the offenses with which he was charged, or any defenses available to him; (2) the constitutional rights which he was waiving; (3) the nature of the charges to which he was pleading; or (4) the determinate nature of the sentence which he could receive.
The facts which gave rise to LoPiano's arrest and indictment are as follows: On the evening of November 17, 1974, he and two companions drove to Lynchburg, S. C. with the intention of breaking into a drug store. Upon arriving at the drug store, LoPiano got out of the car and his companions left the area. Being unable to gain entry to the store, he had begun to walk away when approached by two citizens who had heard the disturbance. LoPiano was placed under citizens arrest, and while one citizen held him, the other went to summon the police. In the meantime, LoPiano's two companions returned and ordered the citizen to release him. The citizen refused, and he was shot and killed by one of LoPiano's companions.
LoPiano argues that his counsel informed him that he was guilty of murder under the felony-murder rule, but made no effort to explain felony-murder. At the post-conviction hearing, LoPiano testified that he was given the following explanation of the felony-murder rule:
"(H)e used an example to where if me and another person or individual was in the act of committing a crime, and going there to commit that crime armed, then during that crime someone had gotten killed, that by me being there, whether I did it or not, indicates that I was just as guilty as he is, therefore, I am being charged just like he does."
This explanation is consistent with our previous pronouncements of the felony-murder rule, State v. Crowe, 258 S.C. 258, 188 S.E.2d 379 (1972), and it is clear from his testimony that LoPiano understood the nature of the crime with which he was charged.
The record also reflects that LoPiano was fully advised of the sentence which he could receive for voluntary manslaughter. LoPiano testified that he was advised by his attorney that if he pled guilty to manslaughter, he would receive a sentence of from two to thirty years. When questioned by the trial judge as to his understanding of the sentence he could receive, LoPiano replied: "I thought two to thirty; no less than two, no more than thirty."
LoPiano's appointed counsel testified that he gave LoPiano the following explanation of the consequences of entering a plea of guilty to voluntary manslaughter:
"I told him that if he entered a plea to voluntary manslaughter that it would also be a plea to the other charge of housebreaking or attempted housebreaking, the attempted breaking and entering, and that the sentence would be left up to the Judge because I had discussed the matter with them and they said that they would accept a plea but that we would have to take our chances with the sentence from the judge; and I explained to him that it would be a sentence of somewhere between two to thirty years."
Before accepting his plea, the trial judge extensively questioned LoPiano regarding his understanding of his plea:
LoPiano argues that the trial judge erred in failing to explain the constitutional rights which he would be waiving by entering a plea of guilty. He maintains that Boykin v. Alabama, 395 U.S. 238, 89 S.Ct 1709, 23 L.Ed.2d 274 (1969) made Rule 11 of the Federal Rules of Criminal Procedure () applicable to the state courts. This contention was considered in State v. Lambert, 266 S.C. 574, 225 S.E.2d 340 (1976), wherein we stated:
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