State v. Rikard, 4156.

Decision Date02 October 2006
Docket NumberNo. 4156.,4156.
Citation638 S.E.2d 72
CourtSouth Carolina Court of Appeals
PartiesThe STATE, Respondent, v. Dana Rae RIKARD, Appellant.

Stephen Drew Geoly, of Greenwood, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Norman Mark Rapoport, all of Columbia; and Solicitor Donald V. Myers, of Lexington, for Respondent.

BEATTY, J.:

Dana Rae Rikard appeals her plea of guilty to felony driving under the influence causing death and felony driving under the influence causing great bodily injury. She asserts the circuit court judge erred in refusing to allow her to withdraw her guilty plea. We affirm.1

FACTS

After spending the afternoon and evening at the I-20 Speedway in Pelion on April 6, 2002, Rikard drove home with her four-year-old daughter at approximately 11:15 p.m. While driving down US-178, Rikard collided with an on-coming vehicle driven by Stephanie Braithwaite. Rikard's daughter, who was not restrained by a seatbelt or a car seat, died at the scene after she was ejected from the vehicle. Braithwaite's four-year-old son was rendered unconscious as a result of the impact. Braithwaite, with the assistance of a passerby, was able to extricate her son from the vehicle before it caught fire. Braithwaite's son was immediately airlifted to Palmetto Richland Hospital where he spent several days to be treated for a subdural hematoma and a broken femur.

While investigating the accident, the officers called to the scene searched Rikard's vehicle. During this search, the officers observed the speedometer was "locked" around eighty miles per hour and found several empty bottles of Zima. According to the officers, Rikard admitted drinking eight Zimas prior to the accident. Three hours after the accident, Rikard's blood was tested at the hospital. Toxicology reports revealed Rikard's blood alcohol content was .11. As part of the SLED investigation, the toxicologist opined that Rikard's blood alcohol content would have been approximately .173 at the time of the accident.

On November 1, 2004, a Lexington County grand jury indicted Rikard for the following offenses: child endangerment, open container violation, violation of the child restraint law, a seatbelt violation, felony driving under the influence (DUI) causing great bodily injury, and felony DUI causing death.

On April 4, 2005, Rikard pleaded guilty to the felony DUI charges.2 During the plea colloquy, the circuit court judge inquired about Rikard's education level, marital status, and employment history. As to the specific charges, the judge informed Rikard that her plea would be a "straight-up" plea without any recommendations or negotiated sentence from the State. He further informed her of the maximum possible sentence for each offense and the constitutional rights she was waiving by pleading guilty. Upon hearing the judge's instructions, Rikard admitted she was guilty of the charged offenses and indicated that she wanted to plead guilty.

After determining that Rikard's guilty plea was freely and voluntarily given, the judge permitted the solicitor to give a recitation of the facts. At the conclusion of this presentation, the solicitor stated, "we would ask for the maximum sentence allowed under the law in this case." The judge accepted Rikard's guilty plea after hearing the factual basis for the plea.

In mitigation, Rikard's counsel stated that Rikard was remorseful and that she had two children who needed her at home. Counsel claimed Rikard's husband, from whom she was separated, was not notified in time to attend the plea proceeding. Counsel further challenged points in the accident investigation, specifically the alleged speed of Rikard's vehicle before the collision. Additionally, counsel stated that Rikard did not believe she was under the influence at the time of the accident even though she admitted to drinking some alcohol that night. He requested the court "be as merciful as possible in this case."

After hearing from Rikard and her mother, the judge sentenced Rikard to twenty-two years imprisonment and a $10,000 fine for felony DUI causing death and fifteen years imprisonment and a $5,000 fine for felony DUI causing great bodily injury. The sentences were to be served concurrently.

Subsequently, Rikard filed a motion to withdraw her plea, or in the alternative, a motion to reconsider the sentence. In this motion, Rikard's counsel alleged prejudicial misconduct on the part of the State. Counsel submitted affidavits and letters from Rikard's family in support of this assertion.

In terms of the alleged misconduct, Rikard claimed the State acted improperly before and during the plea hearing. Specifically, Rikard's counsel contended the State failed to disclose during discovery: (1) that there was evidence Rikard's blood alcohol content was . 173; (2) photographs of the scene depicting the deceased child; and (3) Rikard's alleged admissions regarding her consumption of alcohol prior to the accident. Additionally, counsel claimed the State failed to notify Rikard's husband and her two other children of the hearing pursuant to the Victim's Bill of Rights.3 Rikard believed her family members could have offered evidence in mitigation.

With respect to the State's actions during the hearing, Rikard's counsel asserted the solicitor's representation of the facts, particularly the description of the deceased child's final moments after the accident and the cause of the accident, was exaggerated and rose to the level of misrepresentation. Counsel contended Rikard did not agree with this recitation of the facts. Rikard's counsel further argued the State failed to honor its representation that it would not make a recommendation regarding sentencing when the solicitor requested the maximum sentence during the hearing.

After a hearing, the circuit court judge denied Rikard's motion to withdraw her plea as well as the motion to reconsider the sentence. This appeal followed.

DISCUSSION

Rikard argues the circuit court judge erred in accepting her plea or refusing to allow her to withdraw her plea on the grounds: (1) she did not admit to the facts presented by the State; and (2) the State indicated on the sentencing sheet that it would make no recommendation regarding her sentence but then, during the plea hearing, requested the court impose the maximum sentence. We disagree.

A trial judge should not accept a guilty plea without an affirmative showing that it was intelligent and voluntary. Boykin v. Alabama, 395 U.S. 238, 241, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Additionally, to knowingly and voluntarily enter a plea of guilty, all that is required is that a defendant has a full understanding of the consequences of her plea and the charges against her. Simpson v. State, 317 S.C. 506, 508, 455 S.E.2d 175, 176 (1995). Moreover, the record in a guilty plea proceeding must establish a factual basis for the plea. LoPiano v. State, 270 S.C. 563, 569, 243 S.E.2d 448, 451 (1978); State v. Armstrong, 263 S.C. 594, 598, 211 S.E.2d 889, 891 (1975). In accepting a guilty plea, "the trial judge is free to use any appropriate procedure for determining the accuracy of the guilty plea. The judge must be certain that the defendant understands the charge and the consequences of the plea and that the record indicates a factual basis for the plea." Armstrong, 263 S.C. at 598, 211 S.E.2d at 891. "All that is required before a plea can be accepted is that the defendant understand the nature and crucial elements of the charges, the consequences of the plea, and the constitutional rights he is waiving, and that the record reflect a factual basis for the plea." Rollison v. State, 346 S.C. 506, 511, 552 S.E.2d 290, 292 (2001).

"The withdrawal of a guilty plea is generally within the sound discretion of the trial judge." State v. Riddle, 278 S.C. 148, 150, 292 S.E.2d 795, 796 (1982). An abuse of discretion occurs when a trial judge's decision is unsupported by the evidence or controlled by an error of law. State v. Lopez, 352 S.C. 373, 378, 574 S.E.2d 210, 212 (Ct. App.2002). A determination the plea was voluntarily entered "will normally show the trial judge did not abuse his discretion." Riddle, 278 S.C. at 150, 292 S.E.2d at 796; see State v. Cantrell, 250 S.C. 376, 378, 158 S.E.2d 189, 191 (1967)("A motion to withdraw a plea of guilty, and to be allowed to enter a plea of not guilty, addresses itself to the discretion of the trial judge before whom the plea is entered,...

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  • State v. Tucker
    • United States
    • South Carolina Court of Appeals
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    ...plea a defendant must have a full understanding of the charges against them and the consequences of the plea. State v. Rikard, 371 S.C. 295, 300, 638 S.E.2d 72, 75 (Ct.App. 2006). An appellate court will review the totality of the circumstances to discern if a plea was entered into knowingl......
  • Heaton v. State, 2011-UP-456
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    ...defendant had a full understanding of the consequences of his plea and the charges against him."); State v. Rikard, 371 S.C. 295, 301, 638 S.E.2d 72, 75 (Ct. App. 2006) (quoting State v. Armstrong, 263 S.C. 594, 598, 211 S.E.2d 889, 891 (1975) and instructing that in accepting a guilty plea......
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    ...the defendant had a full understanding of the consequences of his plea and the charges against him."); State v. Rikard, 371 S.C. 295, 301, 638 S.E.2d 72, 75 (Ct. App. 2006) (quoting State v. Armstrong, 263 S.C. 594, 598, 211 S.E.2d 889, 891 (1975) and instructing that in accepting a guilty ......
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