State v. McGrier

• Decision Date: 23 June 2008
• Docket Number: No. 26489.,26489.
• Citation: 663 S.E.2d 15,378 S.C. 320
• Parties: The STATE, Respondent, v. Leroy McGRIER # 2, Appellant.
• Court: South Carolina Supreme Court

663 S.E.2d 15

378 S.C. 320

The STATE, Respondent, v. Leroy McGRIER # 2, Appellant.

No. 26489.

Supreme Court of South Carolina.

Heard February 21, 2008.

Refiled June 23, 2008.

Appellate Defender LaNelle C. DuRant, of South Carolina Commission on Indigent Defense, Division of Appellate Defense, of Columbia, and Ernest Charles Grose, Jr., of Greenwood, for Appellant.

John Benjamin Aplin, of SC Department of Probation Parole and Pardon, of Columbia, for Respondent.

Justice BEATTY.

In this direct appeal, Leroy McGrier challenges the circuit court's order revoking six months for violating the conditions of the Community Supervision Program ("CSP"). McGrier contends the CSP statute, specifically section 24-21-560(D) of the South Carolina Code, is unconstitutional given a revocation from the CSP resulted in the imposition of a greater sentence than his original sentence without the benefit of the requisite constitutional protections. After we issued our original opinion reversing the decision of the circuit court, the State petitioned for rehearing. We deny the petition for rehearing, withdraw our original opinion, and substitute it with this opinion which corrects non-substantive scrivener's errors.

FACTUAL/PROCEDURAL HISTORY

On November 16, 1999, McGrier pleaded guilty to two counts of distribution of crack cocaine (third offense). The circuit court judge sentenced McGrier to three years imprisonment on each count. The sentences were to be served concurrently.

On May 4, 2002, after serving eighty-five percent of the original term of imprisonment,¹ McGrier was released pursuant to section 24-21-560² of the South Carolina Code to the CSP of the South Carolina Department of Probation, Parole, and Pardon Services (the Department). The ending date of McGrier's participation in the CSP was set for May 3, 2004.

On February 23, 2004, McGrier appeared before Circuit Court Judge Wyatt T. Saunders for a revocation hearing. After finding McGrier willfully violated the terms of the CSP, Judge Saunders revoked the CSP and ordered that McGrier be remanded to the custody of the South Carolina Department of Corrections for a period of four months.³ After serving this sentence, McGrier was again released to CSP on June 23, 2004, and assigned a supervision ending date of June 22, 2006.

On April 11, 2005, McGrier appeared before Judge Saunders for a CSP revocation hearing. At the conclusion of the hearing, Judge Saunders found McGrier had willfully violated the conditions of the CSP. As a result, Judge Saunders revoked CSP, sentenced McGrier to six months imprisonment, and recommended that McGrier participate in the Alcohol Treatment Unit (ATU) while incarcerated. Upon completion of this sentence, McGrier was again released to the CSP on September 30, 2005. On April 3, 2006, McGrier appeared before Judge Saunders for a CSP violation hearing. Finding that McGrier willfully violated the terms of the CSP, Judge Saunders permitted McGrier's continued participation in the CSP but ordered that he be held in jail until he was accepted into an in-patient substance abuse treatment program.

On October 30, 2006, McGrier appeared before Circuit Court Judge J. Cordell Maddox, Jr., for violating the terms of the CSP. After finding that McGrier willfully violated the terms and conditions of the CSP, Judge Maddox revoked McGrier's CSP and sentenced him to ninety days imprisonment. As part of the order, Judge Maddox specified that McGrier would not be awarded time-served credit, good-time credit, or work credit. McGrier appealed this order to the Court of Appeals.

On January 27, 2007, McGrier was released from the Department of Corrections to the CSP with a supervision ending date of January 26, 2009. On February 6, 2007, McGrier was served with an arrest warrant in which it was alleged that he violated the terms and conditions of the CSP by failing to: report since his release date of January 27, 2007; report to be placed on an electronic monitoring device; and follow the advice and instructions of his probation agent.

Based on these alleged violations, McGrier appeared before Circuit Court Judge Kenneth G. Goode on April 2, 2007, for a CSP revocation hearing. At the hearing, McGrier, who was represented by counsel, contended he should be released from the CSP because "his [original] sentence has been satisfied by the earlier revocation." In support of this argument, McGrier primarily relied on Justice Pleicones' dissent in State v. Mills, 360 S.C. 621, 602 S.E.2d 750 (2004), to challenge the constitutionality of section 24-21-560(D). Ultimately, Judge Goode rejected this argument and found that McGrier had willfully violated the terms and conditions of the CSP. As a result, Judge Goode revoked McGrier's CSP and sentenced him to a six-month term of imprisonment. McGrier appeals from this order.

DISCUSSION

McGrier asserts the circuit court judge erred in finding section 24-21-560(D) constitutional. Because a revocation under the CSP statute can result in a sentence that exceeds the original sentence, McGrier contends he is entitled to the protections afforded all criminal defendants. Specifically, he claims his sentence was increased without the benefit of the right to be informed of the charges against him, the right to counsel, and the right to a jury trial. Given that the revocation procedure under the CSP statute does not provide for these rights, McGrier claims the statute is unconstitutional.

In support of this argument, McGrier primarily relies on Justice Pleicones' dissent in State v. Mills, 360 S.C. 621, 602 S.E.2d 750 (2004). In Mills, the defendant pleaded guilty to distribution of crack cocaine, second offense, and was sentenced to six months imprisonment. After serving five months and two days, he entered a CSP which was to continue for two years. After a circuit court judge found the defendant violated the terms of his CSP, the judge revoked the defendant's CSP and sentenced him to five months and seven days pursuant to section 24-21-560(D) of the South Carolina Code. Id. at 622, 602 S.E.2d at 751.

Mills appealed the circuit court's order, arguing that section 24-21-560(D) limited his sentence for revocation to the remaining time left on his original sentence for the substantive crime. Mills claimed that because he had served five months and two days, as well as three weeks on a prior revocation, his revocation sentence should not have exceeded five days. Essentially, Mills averred the circuit court misinterpreted section 24-21-560(D) to permit a revocation sentence that was "almost double" his original sentence. Id. at 623, 602 S.E.2d at 751. According to Mills, his sentence for revocation could only equal the amount of unserved time remaining on his original sentence.

A majority of this Court rejected Mills' assertion on the ground his claim was not supported by the plain reading of section 24-21-560(D). In reaching this conclusion, the Court stated:

Subsection (C) of § 24-21-560 provides that "the court may revoke the prisoner's community supervision and impose a sentence of up to one year for a violation of the community supervision program." Subsection (D) then provides that for a successive revocation, the prisoner may be sentenced "as provided in [subsection] (C)" i.e., for up to one year, with the limitation that the total time imposed "for successive revocations" i.e., all revocations, cannot exceed the length of time of the prisoner's original sentence. Subsection (D) does not provide, as appellant contends, that the sentence for any successive revocation is limited to the amount of time remaining on the prisoner's original sentence, nor does this statute inevitably result in the "doubling" of a prisoner's sentence.

Id. at 624, 602 S.E.2d at 752. Applying the above-outlined reasoning, the Court affirmed the circuit court judge's sentence of five months and seven days on the ground that Mills had served three weeks on his prior revocation and his time for all revocations could not exceed six months. Id. at 625, 602 S.E.2d at 752.

Justice Pleicones disagreed with the majority's reading of section 24-21-560, stating that "[t]he majority holds that S.C.Code Ann. § 24-21-560 (Supp.2003) permits an inmate found to have violated the terms of his community supervision (CSP) to serve an additional sentence, up to an amount equal to the period of incarceration imposed as part [of] his original sentence." Id. at 625, 602 S.E.2d at 752. Justice Pleicones explained, "if the revocation judge is truly imposing a new sentence of up to one year, then the protections afforded all criminal defendants, including but not limited to the right to an indictment, counsel, and a jury, must be afforded her." Id. at 625 n. 3, 602 S.E.2d at 752 n. 3. Although Justice Pleicones agreed with the majority's literal interpretation of the statute, he believed such a reading rendered the statute unconstitutional. Id. at 626, 602 S.E.2d at 752. In his opinion, Justice Pleicones read the statute "as putting an outside limit on incarceration of twice the period imposed by the trial judge. The outside limit on the total amount of time an inmate could be incarcerated and/or required to participate in the CSP program is the length of the original sentence, that is, the term of incarceration plus any period of suspension." Id. at 626, 602 S.E.2d at 753. Based on this analysis, Justice Pleicones found the maximum time Mills "could constitutionally be subjected to incarceration and/or required to participate in the CSP program pursuant to [his original sentence] was six months." Because the six-month period had expired, Justice Pleicones found the circuit court judge erred in reincarcerating Mills. Id.

At least facially, Mills would require this Court to affirm the circuit court's order in the instant case. Because McGrier has served an aggregate of nineteen months as the result of his CSP revocations, under Mills, the circuit court's order was...