Major v. Dept. of Probation, 26672.

CourtUnited States State Supreme Court of South Carolina
Citation682 S.E.2d 795,384 S.C. 457
Docket NumberNo. 26672.,26672.
Decision Date24 August 2009

W. Gaston Fairey, of Columbia, for Respondent.

Justice BEATTY.

In this case, the South Carolina Department of Probation, Parole and Pardon Services (the Department) appeals the Administrative Law Court's (ALC's) decision that the Department erred in its interpretation of section 16-23-4901 of the South Carolina Code of Laws regarding the implementation of the sentence imposed by the trial court and Brian Major's eligibility for parole. This Court granted the request of the Court of Appeals for certification pursuant to Rule 204(b), SCACR.


On February 8, 1996, Major was convicted of murder and possession of a weapon during the commission of a violent crime. The trial judge sentenced Major to a term of life imprisonment for murder and five years imprisonment for the weapons charge. The sentencing sheet for the weapons offense merely stated "consecutive."

On May 8, 2002, the South Carolina Department of Corrections (DOC) informed Major that he was no longer eligible for parole on his life sentence2 because he could not begin serving the five-year weapons charge sentence until he completed his life sentence for murder. The DOC's notification was based on the Department's interpretation of section 16-23-490.

In a PCR application, Major challenged the Department's interpretation of his sentence and the denial of parole eligibility. The PCR judge dismissed the application without prejudice so that the issues could be properly raised in the ALC in accordance with Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000).3 Major timely filed a petition for a writ of certiorari for this Court to review the PCR judge's order.

While awaiting a hearing before the ALC and a decision by this Court, Major filed a motion for clarification of his sentence. Relying on this Court's decision in Tilley v. State, 334 S.C. 24, 511 S.E.2d 689 (1999),4 Major challenged the sequence in which he was to serve his sentences. Specifically, Major claimed that he had already served the five-year weapons charge sentence given he was awarded almost five years of credit for time served since his conviction. Thus, in light of Tilley, Major asserted that he should only be serving a life sentence which would make him eligible for parole. Under the Department's interpretation, Major averred that he would never be eligible for parole because he must serve his life term before serving the mandatory, five-year sentence.

Without a hearing, the trial judge denied Major's motion, explaining the sentence needs no clarification.

Following the circuit court judge's decision, Major sought another review by the Department of his parole eligibility. The Department issued a "final decision" and informed Major that he was not eligible for parole. As part of this notification, the Department informed Major that he had the right to appeal its decision to the ALC. Major moved for rehearing by the Department.

In the interim, having granted Major's petition for a writ of certiorari to review the PCR judge's dismissal of his PCR application, this Court issued an opinion on December 11, 2006 in which it affirmed the decision of the PCR judge. Major v. State, Op. No.2006-MO-042 (S.C. Sup.Ct. filed Dec. 11, 2006). Citing Al-Shabazz, this Court explained that "Major must pursue his requested relief through the procedures provided in the Administrative Procedures Act in order to have his sentence reordered in accordance with our decision in Tilley v. State, 334 S.C. 24, 511 S.E.2d 689 (1999) (holding that the consecutive nature of the sentence does not mandate that the sentence be served in a specific order absent the sentencing court's clear articulation that the sentence be served in a specific order)."

Because of the procedural posture of Major's case, the Department delayed its final "rehearing" of Major's challenge to the agency's determination of his parole eligibility until after this Court issued its decision. On February 16, 2007, the Department sent Major a "final decision" letter, affirming its prior determination that he was ineligible for parole and directing him to file an appeal with the ALC.

Major filed his notice of appeal with the ALC. In his notice of appeal, Major argued that the Department incorrectly interpreted section 16-23-490 to require him to complete his life sentence on his murder conviction before beginning his five-year sentence on the weapons charge. Because the sentencing judge did not make any statement at the time of sentencing that the sentences were to be served in a specific order, Major claimed that his sentences should be "reordered" to comply with this Court's decision in Tilley.

The ALC issued an order reversing the Department's determination that Major was ineligible for parole. The ALC prefaced its decision by stating that criminal sentences must be interpreted in light of the sentencing judge's intent. In view of this principle, the ALC concluded that substantial evidence would not support the Department's finding "that the sentencing court intended for the five-year sentence to commence after [Major] completes his life sentence."

Ultimately, the ALC held that the Department erred in sequencing the sentences such that Major would never be eligible for parole. In so holding, the ALC reasoned "[t]here is no basis in logic or in the law for the intent to require an offender to serve an additional sentence after the completion of a life sentence." The ALC further stated "[t]he imposition of such a sentence would be a meaningless act absent the specific intent to preclude that individual from ever becoming eligible for parole. Further, the inference of such [ ] intent presumes that the sentencing judge was willing to invade the province of the legislature by circumventing its parole eligibility laws."

The Department appealed the ALC's decision to the Court of Appeals. This Court granted the Court of Appeals' request for certification.


The Department asserts the ALC erred in reversing its determination that Major is not parole eligible. Based on the terms of section 16-23-490 and the sentence structure imposed by the sentencing judge, the Department claims that Major is effectively serving a life sentence without eligibility for parole. The Department contends the sentencing judge's initial order indicated a clear intention for Major to serve the five-year mandatory term after completion of his life sentence. However, even if the original sentence could be construed as ambiguous, the Department avers that the sentencing judge clarified any question regarding his intention in the written order denying Major's motion for sentence clarification.

Essentially, the Department claims the sentencing judge definitively ordered that Major was to serve the five-year weapons sentence at the conclusion of his life sentence for murder thereby denying Major an opportunity for parole.

The decision of the ALC should not be overturned unless it is unsupported by substantial evidence or controlled by some error of law. S.C.Code Ann. § 1-23-610(B) (Supp.2008); Olson v. S.C. Dep't of Health & Envtl. Control, 379 S.C. 57, 63, 663 S.E.2d 497, 500-01 (Ct.App.2008) ("[T]his court can reverse the ALC if the findings are affected by error of law, are not supported by substantial evidence, or are characterized by abuse of discretion or clearly unwarranted exercise of discretion."). The ALC's order should be affirmed if supported by substantial evidence in the record. Olson, 379 S.C. at 63, 663 S.E.2d at 501.

At least facially, our decision in Tilley supports a finding that the ALC properly reordered the sequence of Major's sentences to ensure parole eligibility given the sentencing sheets do not clearly articulate a particular order for which Major's sentences were to be served other than that they were to be "consecutive." This position is also bolstered by this Court's order affirming the PCR judge's dismissal of Major's PCR application, wherein we stated "Major must pursue his requested relief through the procedures provided in the Administrative Procedures Act in order to have his sentence reordered in accordance with our decision in Tilley v. State, 334 S.C. 24, 511 S.E.2d 689 (1999)." Major v. State, Op. No. 2006-MO-042 (S.C. Sup. Ct. filed Dec. 11, 2006).

Because our decision in Tilley left some questions unanswered, we take this opportunity to expound on the decision in Tilley and address fundamental issues concerning the role of the General Assembly, the authority of a sentencing judge, and the discretion of the Department with respect to an inmate's parole eligibility when a defendant is convicted of multiple offenses resulting in consecutive sentences.

We preface our analysis with the general principle that parole is a privilege, not a matter of right. State v. Dingle, 376 S.C. 643, 649, 659 S.E.2d 101, 104 (2008); Sullivan v. S.C. Dep't of Corr., 355 S.C. 437, 443 n. 4, 586 S.E.2d 124, 127 n. 4 (2003). Parole is a creature of statute and is exclusively in the province of the legislative branch of government. The General Assembly empowers the Department to administer the parole program.

The General Assembly established this parole privilege and identified which criminal offenses are parole-eligible by statute. See Hair v. State, 305 S.C. 77, 79, 406 S.E.2d 332, 334 (1991) (discussing parole eligibility of certain offenses established by the General Assembly's enactments); State v. De La Cruz, 302 S.C. 13, 16, 393 S.E.2d 184, 186 (1990) (noting that the penalty established for a particular...

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