State v. Miller
| Decision Date | 19 June 2013 |
| Docket Number | No. 27271.,27271. |
| Citation | 744 S.E.2d 532,404 S.C. 29 |
| Parties | The STATE, Respondent, v. James C. MILLER, Petitioner. Appellate Case No. 2011–194606. |
| Court | South Carolina Supreme Court |
OPINION TEXT STARTS HERE
Appellate Defender David Alexander, of South Carolina Commission on Indigent Defense, of Columbia, for petitioner.
Tommy Evans, Jr., of South Carolina Department of Probation, Parole & Pardon Services, of Columbia, for respondent.
This Court granted a petition for a writ of certiorari to review the decision of the Court of Appeals in State v. Miller, 393 S.C. 59, 709 S.E.2d 135 (Ct.App.2011), in which it considered the novel question of whether a defendant's probation for a criminal offense should be tolled during his civil commitment pursuant to the Sexually Violent Predator (SVP) Act.1 The Court of Appeals affirmed a circuit court order tolling James C. Miller's probation while he is in the SVP program. We reverse.
On September 6, 2001, Miller pled guilty to committing a lewd act on a child under the age of sixteen and criminal domestic violence of a high and aggravated nature (CDVHAN). For the lewd act conviction, Miller was sentenced to fifteen years in prison, suspended upon the service of ten years in prison and five years of probation. The sentencing sheet on this charge indicates Miller was ordered to undergo sex abuse counseling while in the South Carolina Department of Corrections, and that he was to have no contact with children while on probation. Miller received a concurrent sentence of ten years in prison for the CDVHAN conviction.
Miller's probation began on or about December 1, 2005.2 However, Miller was not released from custody because, prior to his release from prison, he was referred for review as to whether he should be deemed an SVP and subjected to civil commitment. Miller was ultimately found by a jury to be an SVP. He has been in commitment pursuant to the SVP program and housed at the Edisto Unit since November 29, 2006.3 Miller's commitment was affirmed by the Court of Appeals and this Court. In re the Care and Treatment of Miller, 385 S.C. 539, 685 S.E.2d 619 (Ct.App.2009), aff'd,393 S.C. 248, 713 S.E.2d 253 (2011).
On August 28, 2008, Miller's probation officer issued a probation citation and supporting affidavit. In the box on the citation form for specifying the alleged violation, it is indicated: “Citation issued to give court subject-matter jurisdiction over indictment number 2001–GS–32–2716.” A hearing was held before the circuit court on December 19, 2008, at which the court initially expressed some reservation about tolling probation in a matter involving a civil commitment. However, the court thereafter issued an “ Order Tolling Probation” on March 24, 2009.
The Court of Appeals affirmed. State v. Miller, 393 S.C. 59, 709 S.E.2d 135 (Ct.App.2011). The Court of Appeals held the circuit court did not exceed its discretion in finding Miller was unable to comply with all of the conditions of his probation while committed as an SVP and that he would benefit from supervision while in the community. Id. at 63, 709 S.E.2d at 137.
The Court of Appeals further stated this Court has recognized that the circuit court has the authority to toll probation in at least two instances: (1) partial revocation and continuance, and (2) absconding from supervision. Id. The Court of Appeals stated, however, that it was “mindful that in both these instances the probationer has generally committed some affirmative act to violate the conditions of probation.” Id. The court acknowledged “Miller was civilly committed against his will,” but noted “he admitted to committing a lewd act on a minor under the age of sixteen[,] which contributed to the basis for his civil commitment.” Id.
The Court of Appeals rejected Miller's argument that tolling his probation in these circumstances converts his civil commitment into a punitive commitment by extending the length of his criminal sentence. Id. at 64, 709 S.E.2d at 137–38. This Court has granted Miller's petition for a writ of certiorari.
The determination of probation matters lies within the sound discretion of the trial court. See generally State v. Ellis, 397 S.C. 576, 726 S.E.2d 5 (2012); State v. Allen, 370 S.C. 88, 634 S.E.2d 653 (2006). An appellate court will reverse the trial court's decision where there has been an abuse of discretion. Allen, 370 S.C. at 94, 634 S.E.2d at 656.
“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.” Id.
Miller contends the Court of Appeals erred in holding the circuit court properly tolled his probation during his civil commitment as an SVP. Miller asserts the applicable statutes do not specifically authorize such tolling, and he has committed no misconduct that would justify the imposition of equitable tolling because the probation citation was issued only to bring his probation status before the circuit court.
“In South Carolina, parole and probation are governed by statute.” State v. Crouch, 355 S.C. 355, 360, 585 S.E.2d 288, 291 (2003). Statutory law authorizes the circuit court to suspend the imposition or the execution of a criminal sentence and place the defendant on probation, except for crimes punishable by death or life imprisonment. S.C.Code Ann. § 24–21–410 (2007). 4 “Probation is a form of clemency.” Id.
“The period of probation or suspension of sentence shall not exceed a period of five years and shall be determined by the judge of the court and may be continued or extended within the above limit.” Id.§ 24–21–440 (emphasis added). Thus, while the court may extend the length of the probation originally given, the total period of probation may not exceed the statutory maximum of five years.
“Probation, a suspension of the period of incarceration, is clearly part of a criminal defendant's ‘term of imprisonment[,’] as is actual incarceration, parole, and the suspended portion of a sentence[.]” Thompson v. S.C. Dep't of Pub. Safety, 335 S.C. 52, 55–56, 515 S.E.2d 761, 763 (1999). Therefore, whether a violation of probationary terms has occurred and the consequences of any such violation are matters for the courts. Duckson v. State, 355 S.C. 596, 598 n. 2, 586 S.E.2d 576, 578 n. 2 (2003). If a defendant has violated the terms of his probation, the circuit court may revoke the defendant's probation or suspension of sentence, or, in its discretion, the court may require the defendant to serve all or a portion only of the sentence imposed. S.C.Code Ann. § 24–21–460 (2007).
There is no explicit reference to tolling in the statutes governing probation. However, South Carolina's appellate courts have expressly recognized the general authority of the circuit court to toll probation.
In State v. Dawkins, 352 S.C. 162, 573 S.E.2d 783 (2002), the circuit court ruled the defendant's probationary term was tolled and therefore did not begin to run until after he successfully completed his mandatory two-year term of service in a community supervision program (CSP) pursuant to S.C.Code Ann. § 21–24–560 (Supp.1998) for his no-parole offense.5Id. at 164–65, 573 S.E.2d at 783–84.
On appeal, this Court noted this was a statutory construction case, and interpreted South Carolina Code section 24–21–560(E), which “provides, ‘[a] prisoner who successfully completes a[CSP] pursuant to this section has satisfied his sentence and must be discharged from his sentence.’ ” Id. at 165, 573 S.E.2d at 784 (alterations in original). While observing that “all parties agree the statutory scheme is convoluted,” the Court held that a prisoner's successful completion of the mandatory CSP for no-parole offenses completely discharges his sentence, including his five-year probationary period, as this result was mandated by the terms of the statute. Id. at 167, 573 S.E.2d at 785. Although this Court reversed the circuit court's tolling of probation, it did so because the probation was subsumed by the CSP, not because tolling is prohibited. The Court stated it “believe[d] the legislature intended mandatory participation in the CSP to serve as a more rigorous term of probation for those convicted of no-parole offenses, in lieu of normal probation.” Id.
Thereafter, in State v. Crouch, this Court generally observed tolling could be appropriate in circumstances involving “absconding or partial revocation and continuance.” 355 S.C. at 359 n. 2, 585 S.E.2d at 290 n. 2. The Court found the judge erroneously revoked a sentence and tolled the running of probation when the appellant's probation had already ended. Id. at 359–60, 585 S.E.2d at 290–91. However, the Court concluded it need not address whether probationary sentences could be tolled so as to turn concurrent sentences into consecutive ones. Id. at 361, 585 S.E.2d at 291.
In State v. Hackett, 363 S.C. 177, 609 S.E.2d 553 (Ct.App.2005), the Court of Appeals affirmed a circuit court's ruling that the defendant's probation could be tolled during the period the defendant had absconded from supervision. In doing so, the Court of Appeals reasoned there was no explicit prohibition in section 24–21–440 () on tolling probation. Id. at 181, 609 S.E.2d at 555. In addition, in construing the legislative intent, the circuit court could not logically give Hackett credit against his five-year probationary period for the time he absconded, because to do so would be to allow Hackett to escape...
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