State v. Baucom, 2946.

• Decision Date: 16 February 1999
• Docket Number: No. 2946.,2946.
• Citation: 334 S.C. 371,513 S.E.2d 112
• Parties: STATE of South Carolina, Respondent, v. Kenneth R. BAUCOM, Appellant.
• Court: South Carolina Court of Appeals

334 S.C. 371

513 S.E.2d 112

STATE of South Carolina, Respondent, v. Kenneth R. BAUCOM, Appellant.

No. 2946.

Court of Appeals of South Carolina.

Heard January 12, 1999.

Decided February 16, 1999.

Rehearing Denied March 27, 1999.

Stephen D. Schusterman, of Rock Hill, for Appellant.

Attorney General Charles M. Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott and Senior Assistant Attorney General Charles H. Richardson, all of Columbia; and Solicitor Thomas E. Pope, of York, for Respondent.

ANDERSON, Judge:

Kenneth R. Baucom appeals from his conviction for driving under the Influence (DUI), second offense. We affirm.

FACTS/PROCEDURAL BACKGROUND

On May 18, 1993, Baucom received a Certificate of Pardon for several convictions, Including a 1990 DUI conviction. Baucom was again arrested for DUI on August 24, 1996. His indictment provided: "That Kenneth Reid Baucom did in York County on or about August 24, 1996, drive a vehicle while under the influence of intoxicating liquors, ... such not being the first offense within a period of ten years." Baucom was convicted of DUI, second offense. The trial judge relied on Baucom's pardoned 1990 DUI conviction to enhance the punishment for the current DUI conviction.

ISSUE

Does the pardon of a conviction preclude such conviction from being considered as a "prior offense" under a statute enhancing the punishment for a subsequent conviction?

LAW/ANALYSIS

I. EFFICACY OF PARDON

Baucom argues the trial court erred in ruling the pardon of his 1990 DUI conviction did not preclude that conviction from being considered as a prior conviction under S.C.Code Ann. § 56-5-2940 (1991 & Supp.1998), which enhances the punishment for a subsequent DUI. He contends the "pardon fully releases him from all legal consequences of his crimes and convictions, both direct and collateral, including the punishment or whatever else the law has provided." We disagree.

A. Majority Rule

The issue of whether a pardoned conviction is available to enhance punishment for a subsequent conviction is novel in South Carolina. The majority view is the pardon of a conviction does not preclude such conviction from being considered as a prior offense under a statute enhancing the punishment for a subsequent conviction. G. Van Ingen, Annotation, Pardon as Affecting Consideration of Earlier Conviction in Applying Habitual Criminal Statute, 31 A.L.R .2d 1186 (1953 & Supp.1995); 39 Am.Jur.2d Habitual Criminals § 13 (1968). See also Carlesi v. New York, 233 U.S. 51, 34 S.Ct. 576, 58 L.Ed. 843 (1914) (for purposes of habitual offender sentencing, state may use federal conviction pardoned by president); State v. Robinson, 251 A.2d 552, 556 (Del.1969) ("It is the generally prevailing rule that the pardon of a conviction does not preclude the conviction from being considered as a prior offense under a statute increasing the punishment for a subsequent offense."); State v. Zumalt, 202 Kan. 595, 451 P.2d 253, 256 (1969) ("Our rule is that the record of a prior felony conviction may be used to increase the sentence imposed for a subsequent felony conviction in accord with the habitual criminal act despite the fact the prisoner received a pardon as to the prior conviction."); State v. Stern, 210 Minn. 107, 297 N.W. 321 (1941) (pardon granted defendant for previous conviction in California was not bar to imposition of enhanced punishment under Minnesota's habitual criminal statute following conviction of crime of performing illegal operation); Shankle v. Woodruff, 64 N.M. 88, 324 P.2d 1017 (1958) (holding pardon does not prevent use of prior conviction for habitual offender sentencing); State v. Webb, 36 N.D. 235, 162 N.W. 358 (1917) (fact that accused was pardoned for prior conviction does not exempt him from increased punishment on subsequent conviction); Kellogg v. State, 504 P.2d 440 (Okla.Crim.App.1972) (conviction is not wiped out by pardon, as pardon by executive power does not blot out solemn act of judicial branch of government; pardoned felony conviction may be used to increase punishment on subsequent conviction under habitual criminal statute); Commonwealth v. Smith, 324 Pa. 73, 187 A. 387 (1936) (accused who pleaded guilty to murder in second degree and who had previously been sentenced for manslaughter and had obtained complete pardon held properly sentenced as second offender, since punishment inflicted for second offense was solely for second offense and not for offense for which accused was pardoned); Jones v. State, 141 Tex.Crim. 70, 147 S.W.2d 508 (App.1941) (prior conviction could be invoked as basis for added penalty for subsequent offenses imposed by statute, notwithstanding that Governor had granted defendant a full pardon after defendant had served part of his term in penitentiary following his prior conviction; governor can forgive penalty but has no power to direct that the courts shall forget either the crime or the conviction); State v. Edelstein, 146 Wash. 221, 262 P. 622 (1927) (holding prior conviction, though pardoned, is to be counted in determining sentence under multiple offender laws); Dean v. Skeen, 137 W.Va. 105, 70 S.E.2d 256 (1952) (fact that accused was pardoned for prior offense does not exempt him from increased punishment provided for in habitual criminal statute upon a subsequent conviction).

This view is based on the principle that a pardon does not affect the recipient's guilt with respect to the offense for which he was imprisoned, and that the enhanced punishment authorized by statute is an element not of the earlier offense but of the subsequent crime. 39 Am.Jur.2d Habitual Criminals § 13 (1968). A vintage analysis of the issue in Herndon v. Commonwealth, 105 Ky. 197, 48 S.W. 989 (1899), is edifying:

"The pardon relieved the convict of the entire penalty incurred by the offense pardoned, and nothing less or more. It neither did nor could relieve from any penal consequence resulting from a different offense, committed after the pardon, and never pardoned. The increased punishment prescribed by the statute for the subsequent offense was no part of the penal consequences of the first offense, but applied exclusively to the last, as aggravated by its repetition of the same crime.... In any aspect, the augmented punishment is for the last, and not at all for the first, offense."

Herndon, 48 S.W. at 990.

In People v. Biggs, 9 Cal.2d 508, 71 P.2d 214 (1937), cited or quoted by a plethora of other jurisdictions, the court expounds:

In brief, the question is whether a conviction may, after pardon of the offender, be deemed a prior conviction within the meaning of our statutes prescribing increased punishment for habitual criminals or those previously convicted of crime. We are of the opinion that it may.

Our statutes, like most of the acts in other states, are silent on this point. They refer simply to prior "convictions" or to persons previously "convicted," making no other qualification or explanation save that the defendant must have served a term of imprisonment therefor. This fact would in itself appear to be an answer to appellant's contention, for if he has suffered prior convictions, he comes within the classification of persons who are to be subjected to heavier punishment for subsequent offenses, and must be so punished. It is immaterial that the statutes do not expressly refer to persons pardoned after conviction, since by failure to exclude them, they are obviously included within the general provisions. This is a necessary conclusion from the language of the statutes, and it is determinative of the present case unless there is something in the nature of a pardon which compels a different interpretation. It should be borne in mind, in this connection, that the question is solely one of the legislative intent; the constitutional power of the Legislature to impose a heavier penalty for the subsequent conviction, despite a prior pardon, is settled.

....

... It is universally established that a pardon exempts the individual from the punishment which the law inflicts for the crime which he has committed; and generally speaking, it also removes any disqualifications or disabilities which would ordinarily have followed from the conviction. To say, however, that the offender is "a new man," and "as innocent as if he had never committed the offense," is to ignore the difference between the crime and the criminal. A person adjudged guilty of an offense is a convicted criminal, though pardoned; he may be deserving of punishment, though left unpunished; and the law may regard him as more dangerous to society than one never found guilty of crime, though it place no restraints upon him following his conviction. The criminal character or habits of the individual, the chief postulate of habitual criminal statutes, is often as clearly disclosed by a pardoned conviction as by one never condoned....

....

... We are unable to see how the pardon, relieving the offender from the effects or disabilities of his first crime, can in addition prevent the normal application of the statute punishing him for a subsequent offense.

Biggs, 71 P.2d at 215-17 (citations omitted).

The rationale behind a pardon is discussed in Wilborn v. Saunders, 170 Va. 153, 195 S.E. 723 (1938):

A pardon is granted on the theory that the convict has seen the error of his ways, that society will gain nothing by his further confinement, and that he will conduct himself in the future as an upright, law-abiding citizen. However, it is fitting, under some circumstances, that certain conditions insuring good conduct should be required of the convict for this opportunity to escape the service of the full penalty prescribed for his former crimes. A future violation of the penal law, whether such takes place during the period that the pardoned convict was originally sentenced or thereafter, demonstrates that the time actually served by the convict was not enough to

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