State v. Allen

• Decision Date: 21 August 2006
• Docket Number: No. 26204.,26204.
• Citation: 634 S.E.2d 653
• Parties: The STATE, Respondent, v. Justin Lamar ALLEN, Appellant.
• Court: South Carolina Supreme Court

Page 653

634 S.E.2d 653

The STATE, Respondent, v. Justin Lamar ALLEN, Appellant.

No. 26204.

Supreme Court of South Carolina.

Heard May 4, 2006.

Decided August 21, 2006.

Robert M. Dudek of the South Carolina Commission on Indigent Defense, Division of Appellate Defense, of Columbia, and E. Charles Grose, Jr., of Greenwood, for Appellant.

J. Benjamin Aplin of the South Carolina Department of Probation, Parole and Pardon Services, of Columbia, for Respondent.

Acting Justice MANNING:

Justin L. Allen (Appellant) challenges the circuit court judge's decision to revoke his probationary sentence. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant was sentenced in 2002 to an aggregate term of seven years in prison on drug-related convictions, suspended on the service of one year and three years' probation. Appellant was released from prison on probation in 2003.

Police responded to a shooting in the early morning hours of January 5, 2004, at an apartment complex in Greenwood. An agent of the South Carolina Department of Probation, Parole and Pardon Services issued a warrant for Appellant's arrest based on his involvement in events immediately following the shooting. The agent charged Appellant with violating several conditions of his probation, including associating with a person who has a criminal record.

A police officer testified at the revocation hearing that a witness stated, soon after hearing gunshots, he saw two men help an apparent shooting victim get into a yellow Cadillac which then drove away. The witness did not identify the men. The officer testified a hospital security videotape showed Appellant getting out of the Cadillac at the emergency room entrance and entering the hospital. Appellant did not remain at the vehicle when he apparently heard or noticed approaching police, but entered the hospital's emergency room and departed through another door. Police caught the other suspect in the vehicle, Nicholas Sanders, who was armed with a handgun, when he tried to flee after speaking with an officer near the vehicle. The victim, Lawson Hawkins, died of his wounds at the hospital.

A SLED agent testified the fingerprints of Appellant and Sanders were found on the Cadillac's exterior. No fingerprints were found on the interior of the car. Police found over a half of an ounce of cocaine and a handgun inside the car while searching it.

Documents found in the vehicle contained Appellant's name. A police officer testified the vehicle was registered in the name of Appellant's grandfather. The officer testified Appellant verbally admitted driving the vehicle that night and "thought he was there at the scene when [the victim] got shot." Appellant's probation officer testified that Appellant, when asked about associating with Sanders, stated "he just took [Sanders] to the hospital that night, or that was his brother got shot and he just took him to the hospital." Sanders was on probation at the time as a result of previous convictions for unlawful sale of a pistol and a drug-related offense.

Appellant did not testify at the revocation hearing, but invoked his Fifth Amendment right to remain silent because he had been charged with possession of cocaine with intent to distribute, unlawful possession of a firearm, and attempted armed robbery. The crimes allegedly occurred on the night of the shooting.¹

The trial court ruled Appellant had violated several conditions of his probation, including associating with Sanders, who has a criminal record. The trial court noted Appellant had not offered any evidence contradicting the State's case, including any explanation of his actions in taking the shooting victim to the hospital or his furtive departure from the hospital. The trial court revoked Appellant's probation and activated the remaining six years of the 2002 sentence, with probation terminating upon service of the sentence.

We certified this case for review on the motion of the Court of Appeals pursuant to Rule 204(b), SCACR. Appellant raises several issues, but we find it necessary to address only one:

Did the trial court abuse its discretion in revoking Appellant's probation because he associated with a person who has a criminal record, a condition which is so overly broad that it violates due process?

STANDARD OF REVIEW

The determination of whether to revoke probation in whole or part rests within the sound discretion of the trial court. State v. Miller, 122 S.C. 468, 474-75, 115 S.E. 742, 745 (1923); State v. Proctor, 345 S.C. 299, 301, 546 S.E.2d 673, 674 (Ct.App.2001); S.C.Code Ann. § 24-21-460 (1989). The trial court must determine whether the State has presented sufficient evidence to establish that a probationer has violated the conditions of his probation. State v. King, 221 S.C. 68, 73, 69 S.E.2d 123, 125 (1952); State v. White, 218 S.C. 130, 135, 61 S.E.2d 754, 756 (1950); State v. Hamilton, 333 S.C. 642, 648-49, 511 S.E.2d 94, 97 (Ct.App.1999). "While probation is a matter of grace, the probationer is entitled to fair treatment, and is not to be made the victim of whim or caprice." White, 218 S.C. at 136, 61 S.E.2d at 756.

An appellate court will not reverse the trial court's decision unless that court abused its discretion. White, 218 S.C. at 135, 61 S.E.2d at 756; Hamilton, 333 S.C. at 647, 511 S.E.2d at 96. An abuse of discretion occurs when the trial court's ruling is based upon an error of law, such as application of the wrong legal principle; or, when based upon factual conclusions, the ruling is without evidentiary support; or, when the trial court is vested with discretion, but the ruling reveals no discretion was exercised; or when the ruling does not fall within the range of permissible decisions applicable in a particular case, such that it may be deemed arbitrary and capricious. Fontaine v. Peitz, 291 S.C. 536, 539, 354 S.E.2d 565, 566 (1987); S.E.C. v. TheStreet.Com, 273 F.3d 222, 229 n. 6 (2d Cir.2001).

LAW AND ANALYSIS

A condition of Appellant's probation, included on the standard probation form he signed, stated in pertinent part, "I shall not associate with any person who has a criminal record." Appellant argues the trial court erred by revoking his probation by finding he associated with Sanders, who has a criminal record. It was necessary for Appellant to associate with Sanders in order to help place a shooting victim in the Cadillac and drive him to the hospital. Furthermore, relying on Beckner v. State, 296 S.C. 365, 373 S.E.2d 469 (1988), Appellant contends this condition violates due process and is generally unenforceable because it is overly broad. Appellant asserts the condition would, for example, prohibit someone from associating with a spouse or relative who has a criminal record, or from working at a place which employed anyone with a criminal record.²

The State argues this condition is authorized by statute and reasonably furthers the goals of rehabilitating a probationer and protecting the public. The State relies on South Carolina Code Ann. § 24-21-430(3) (Supp. 2005), which provides that a probationer shall "avoid persons or places of disreputable or harmful character." The State does not address whether the condition is overly broad as a general rule, but asserts the trial court did not abuse its discretion in applying the condition under the facts of Appellant's case.

We have found no South Carolina authority directly on point and only two South Carolina cases discussing the validity of "no-association" probation conditions. In Beckner, a PCR petitioner challenged a condition that he not "be in a place of business that sells alcohol." We struck down the condition as unreasonable, finding it would prohibit the petitioner from entering or working in practically every grocery or convenience store, as well as many restaurants. The burden imposed on the petitioner was greatly disproportionate to any rehabilitative function the condition might serve. Beckner, 296 S.C. at 366, 373 S.E.2d at 469-70.

In State v. White, 218 S.C. 130, 61 S.E.2d 754 (1950), this Court considered the validity of a condition that directed the probationer to "avoid persons or places of disreputable or harmful character." The probationer operated a restaurant at the state fairgrounds near Columbia, an establishment which sold beer and included a large room between the restaurant and kitchen where illegal gambling occurred. The evidence revealed the probationer was aware of illegal gambling on his premises, apparently tolerating the activity even if he was not an active participant. The Court rejected the probationer's argument he was not on notice of a potential violation because probation officers had not warned him to avoid that particular location, explaining the record showed the probationer knew he was required to avoid such sites and activities. The Court upheld the trial court's decision to revoke his probation. White, 218 S.C. at 136-41, 61 S.E.2d at 757-59.

The Legislature has set forth certain conditions of probation which may be imposed by the court, and the court has the discretion to impose additional or specific restrictions within limits. S.C.Code Ann. § 24-21-430 (Supp.2005) (listing thirteen conditions of probation and stating "[t]he court may impose by order duly entered and may at any time modify the conditions of probation and may include among them" the listed conditions or others not prohibited by this section); State v. Brown, 284 S.C. 407, 410, 326 S.E.2d 410, 411 (1985) (holding trial courts are "allowed a wide, but not unlimited, discretion in imposing conditions of suspension or probation and they cannot impose conditions which are illegal and void as against public policy"); Henry v. State, 276 S.C. 515, 280 S.E.2d 536 (1981) (holding trial court lacked authority to impose banishment from state if probation was revoked as a condition of probation, even though defendant appeared to agree to the sentence); State v. Brown, 349 S.C. 414, 563 S.E.2d...