State v. Passaro, No. 25507.

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtBURNETT, Justice
Citation567 S.E.2d 862,350 S.C. 499
PartiesThe STATE, Respondent, v. Michael J. PASSARO, Appellant.
Decision Date29 July 2002
Docket NumberNo. 25507.

350 S.C. 499
567 S.E.2d 862

The STATE, Respondent,
v.
Michael J. PASSARO, Appellant

No. 25507.

Supreme Court of South Carolina.

Heard May 29, 2002.

Decided July 29, 2002.


350 S.C. 501
Deputy Chief Attorney Joseph L. Savitz, III, of the South Carolina Office of Appellate Defense, of Columbia, for appellant

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, all of Columbia, and Solicitor J. Gregory Hembree, of Conway, for respondent.

BURNETT, Justice:

Michael J. Passaro ("Passaro") pled guilty to murder and arson and was sentenced to death. Passaro's counsel filed an appeal to which Passaro filed a motion to dismiss. We ordered the circuit court to conduct a competency hearing. The court found Passaro competent to waive his right to appeal his conviction.

FACTS

The facts are not disputed. Passaro and his wife, Karen Passaro ("Karen"), separated because of marital difficulties. Karen, subsequently, filed for divorce. The family court issued a temporary order affecting custody of the Passaro's child, Maggie.

The order granted Passaro weekend custody of Maggie, beginning on Friday, when he would pick her up from daycare, and ending Monday, when he returned her to daycare. Karen would pick up Maggie on Monday afternoon and keep her until Friday. Passaro and Karen had conflicts concerning the custody arrangement, particularly during holidays.

On the Monday before Thanksgiving, Passaro did not take Maggie to daycare. Instead, he drove his van to Karen's condominium complex; poured gasoline on the floor of the vehicle; ignited the gasoline and jumped out leaving Maggie to die strapped in a child's safety seat. Investigators found a suicide note in the van, written by Passaro, explaining his wish

350 S.C. 502
to kill himself and Maggie so they could spend time in heaven away from Karen.1

After Passaro's indictment, the State served notice of its intent to seek the death penalty. The trial judge conducted a Blair2 hearing and found him competent, i.e., he understood the charges against him and was able to assist his court-appointed counsel.

Passaro was arraigned on the day of the competency hearing and entered pleas of guilty to both charges. The trial court accepted the pleas after finding they were entered freely, voluntarily and intelligently.3 The court reconvened two days subsequent to begin the required sentencing phase.

At the conclusion of the sentencing hearing the trial judge found the existence of the following statutory aggravating circumstances beyond a reasonable doubt: 1) physical torture; 4 2) offender by his act of murder knowingly created a great risk of death to more than one person in a public place by means of a weapon or device which would normally be hazardous to the lives of more than one person;5 3) the murder of a child 11 years of age or younger.6 Although the court found mitigating circumstances,7 Passaro waived his right for the court to consider any mitigation.

350 S.C. 503
Passaro's counsel, at Passaro's behest, waived closing arguments. Passaro made a brief closing statement
Donna8 was a big part of my life. I was devastated by her passing, and when I met Karen I thought I would have another chance at happiness. We started having difficulties in our marriage and happiness turned to tragedy. Thank you, your honor.

The trial judge concluded the evidence warranted the imposition of the death sentence for murder and a concurrent sentence of 30 years for arson.

Passaro's counsel filed a timely notice of appeal. Passaro, pro se, filed a motion to dismiss his appeal. We remanded the matter to the circuit court pursuant to Singleton v. State, 313 S.C. 75, 437 S.E.2d 53 (1993), to determine whether Passaro was competent to waive his right to appeal.

At the Singleton hearing Dr. Pamela Crawford ("Dr.Crawford"), an expert qualified in forensic psychiatry, testified Passaro was competent, under the Singleton standard, to waive his appeal and to be executed. She found he suffered from no major mental illness, though he had suffered from mild depression in his past, including periods after the death of his first wife and after his incarceration for the murder of his daughter. Dr. Crawford's findings were consistent with the report of the findings of the defense psychiatric expert.

The court found Passaro competent under the Singleton standard. Specifically, the court found Passaro able to understand the nature of the proceedings, the crimes for which he was tried, the reason for and the nature of the punishment, and he possessed sufficient mental capacity or ability to rationally communicate with counsel.

We required the parties submit briefs on Passaro's competence to waive his appeal. We also denied Passaro's motion to dismiss his counsel and appear pro se. However, we allowed Passaro to file an additional pro se brief. In a letter received March 5, 2002 waiving his right to file a pro se brief, Passaro wrote to appellate counsel:

350 S.C. 504
In following the court's order of December 17, 2001, I understand that I have 20 days to respond to your [Office of Appellate Defense] brief and the state's brief
I received a copy of your brief and the state's brief on February 11, 2002 and after reading both briefs, I do not feel that any more [sic] is needed to be said. I agree with the state.
Therefore, I am waiving the 20 days for my response.

ISSUE

I. Can an individual who pleads guilty to murder and waives introduction of mitigating evidence waive his right to general appellate review?
II. Is Passaro's waiver of his right to general appellate review competent, knowing and voluntary?

DISCUSSION

I

Right to Waive Appeal

A capital defendant may waive the right to general appellate review. State v. Torrence, 317 S.C. 45, 451 S.E.2d 883 (1994) (Torrence II). However, this right is limited to competent individuals whose decision is knowing and voluntary. Id.

Appellate counsel argues this Court should not allow Passaro to waive his right to general appellate review. Appellate counsel bases this argument on the theory that Passaro, who pled guilty to capital murder and then waived mitigation at the penalty phase, should not be allowed to prevent review of his conviction and sentence by waiving appellate review. To do so, counsel insists, is "little more than governmentassisted suicide."9

350 S.C. 505
Our decisions in Torrence II and State v. Torrence, 322 S.C. 475, 473 S.E.2d 703 (1996) (Torrence III), permit an individual to waive general appellate review of a death penalty conviction. Appellate counsel suggests the distinction between the Torrence line of cases and the instant case is our affirming Torrence's underlying conviction in our initial review of the case. See State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991) (Torrence I) (affirming conviction, but reversing the sentence of death and remanding for new sentencing proceeding). Because this Court has never reviewed Passaro's conviction, counsel asserts we should refuse any request to waive appeals in the case. We disagree.

It is true Torrence did not waive his right to appellate review until after this Court upheld his conviction. When Torrence was sentenced to death the second time, he chose to waive appellate review because he could, at best, receive life without parole at a new sentencing hearing. Torrence preferred the execution of his death sentence to the only alternative, life without parole.

Passaro, unlike Torrence, pled guilty. Allowing individuals, even defendants facing capital punishment, to plead guilty is recognized both in this state and throughout the nation. See State v. Shaw, 273 S.C. 194, 255 S.E.2d 799 (1979) (upholding death sentence of two defendants who pled guilty to murder) overruled on other grounds by Torrence I, supra; see generally Barry J. Fisher, Judicial Suicide or Constitutional Autonomy? A Capital Defendant's Right to Plead Guilty, 65 Alb. L.Rev. 181 (2001) (noting all states except Arkansas, Louisiana and New York allow a defendant in a capital case to plead guilty). By allowing Passaro to plead guilty, we allow him to significantly restrict the scope of review on appeal because a guilty plea generally constitutes a waiver of non-jurisdictional...

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21 practice notes
  • Frazer v. South Carolina, No. 04-6500.
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • December 8, 2005
    ...plea generally constitutes a waiver of non-jurisdictional defects and claims of violations of constitutional rights," State v. Passaro, 350 S.C. 499, 567 S.E.2d 862, 866 (2002) (citing Rivers v. Strickland, 264 S.C. 121, 213 S.E.2d 97, 98 (1975)), the general rule appears to be that "a plea......
  • Shaw v. State, CR–10–1502.
    • United States
    • Alabama Court of Criminal Appeals
    • July 18, 2014
    ...Bordelon, 33 So.3d 842 (La.2009) ; Grim v. State, 971 So.2d 85 (Fla.2007) ; Byrom v. State, 927 So.2d 709 (Miss.2006) ; State v. Passaro, 350 S.C. 499, 567 S.E.2d 862 (2002) ; People v. Lavalle, 181 Misc.2d 916, 697 N.Y.S.2d 241 (1999) ; Zagorski v. State, 983 S.W.2d 654 (Tenn.1998) ; State......
  • Shaw v. State, CR-10-1502
    • United States
    • Alabama Court of Criminal Appeals
    • July 18, 2014
    ...33 So. 3d 842 (La. 2009); Grim v. State, 971 So. 2d 85 (Fla. 2007); Bryom v. State, 927 So. 2d 709 (Miss. 2006); State v. Passaro, 350 S.C. 499, 567 S.E.2d 862 (2002); People v. Lavalle, 181 Misc. 2d 916, 697 N.Y.S.2d 241 (1999); Zagorski v. State, 983 S.W.2d 654 (Tenn. 1998); State v. Cole......
  • Chapman v. Com., No. 2005-SC-000070-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • August 23, 2007
    ...offense."). Presumably, a judge must consider the same factors before sentencing a defendant to death. 67. See, e.g., State v. Passaro, 350 S.C. 499, 567 S.E.2d 862, 866 (2002) ("We disagree with appellate counsel's argument that allowing an individual to plead guilty to murder, be sentence......
  • Request a trial to view additional results
21 cases
  • Frazer v. South Carolina, No. 04-6500.
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • December 8, 2005
    ...plea generally constitutes a waiver of non-jurisdictional defects and claims of violations of constitutional rights," State v. Passaro, 350 S.C. 499, 567 S.E.2d 862, 866 (2002) (citing Rivers v. Strickland, 264 S.C. 121, 213 S.E.2d 97, 98 (1975)), the general rule appears to be that "a plea......
  • Shaw v. State, CR–10–1502.
    • United States
    • Alabama Court of Criminal Appeals
    • July 18, 2014
    ...Bordelon, 33 So.3d 842 (La.2009) ; Grim v. State, 971 So.2d 85 (Fla.2007) ; Byrom v. State, 927 So.2d 709 (Miss.2006) ; State v. Passaro, 350 S.C. 499, 567 S.E.2d 862 (2002) ; People v. Lavalle, 181 Misc.2d 916, 697 N.Y.S.2d 241 (1999) ; Zagorski v. State, 983 S.W.2d 654 (Tenn.1998) ; State......
  • Shaw v. State, CR-10-1502
    • United States
    • Alabama Court of Criminal Appeals
    • July 18, 2014
    ...33 So. 3d 842 (La. 2009); Grim v. State, 971 So. 2d 85 (Fla. 2007); Bryom v. State, 927 So. 2d 709 (Miss. 2006); State v. Passaro, 350 S.C. 499, 567 S.E.2d 862 (2002); People v. Lavalle, 181 Misc. 2d 916, 697 N.Y.S.2d 241 (1999); Zagorski v. State, 983 S.W.2d 654 (Tenn. 1998); State v. Cole......
  • Chapman v. Com., No. 2005-SC-000070-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • August 23, 2007
    ...offense."). Presumably, a judge must consider the same factors before sentencing a defendant to death. 67. See, e.g., State v. Passaro, 350 S.C. 499, 567 S.E.2d 862, 866 (2002) ("We disagree with appellate counsel's argument that allowing an individual to plead guilty to murder, be sentence......
  • Request a trial to view additional results

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