State v. Rosier, 2102

• Court: Court of Appeals of South Carolina
• Citation: 439 S.E.2d 307,312 S.C. 145
• Decision Date: 07 September 1993
• Docket Number: No. 2102,2102
• Parties: The STATE, Respondent, v. Jerry L. ROSIER, Appellant. . Heard

Page 307

439 S.E.2d 307 312 S.C. 145 The STATE, Respondent,
v.
Jerry L. ROSIER, Appellant. No. 2102. Court of Appeals of South Carolina. Heard Sept. 7, 1993.
Decided Dec. 13, 1993.

Page 308

Robert G. Howe, Charleston, for appellant.

Attorney General T. Travis Medlock, Deputy Chief Atty. Gen. Donald J. Zelenka, Asst. Atty. Gen. Harold M. Coombs, [312 S.C. 146] Jr., Columbia, and Sol. Barbara R. Morgan, Aiken, for respondent.

BELL, Judge:

Jerry L. Rosier was indicted for assault and battery with intent to kill. At a hearing held on May 18, 1992, Rosier pleaded guilty to this charge. At another hearing held on May 21, 1992, he moved to withdraw his guilty plea. The circuit court denied the motion and sentenced Rosier to twenty years in prison suspended upon service of ten years and five years probation. Rosier appeals the denial of his motion to withdraw the guilty plea prior to his sentencing. We affirm.

Prior to the May 18th hearing, Rosier's attorney, Howe, and Solicitor Gibbons discussed a plea bargain which would "cap" Rosier's sentence at ten years. Howe states he interpreted this to mean the sentence would not exceed ten years. This apparently is what Howe relayed to Rosier. The Solicitor testified that he understood the sentence would be twenty years with a cap of ten years on the suspended portion. The Solicitor further testified, however, that there was no mention in the discussion between him and Howe of a twenty year sentence.

At the May 18th hearing, the circuit judge questioned Rosier and Howe about the plea and the plea bargain:

THE COURT: Mr. Rosier, in this indictment it is alleged that you did commit an assault and battery with the intent to kill.... The penalty of punishment is up to twenty years in the discretion of the Court. Do you understand that charge and punishment?

THE DEFENDANT: Yes, sir.

THE COURT: Understanding the charge and punishment, how do you wish to plead, not guilty or guilty?

THE DEFENDANT: Guilty, Your Honor.

THE COURT: Now, Mr. Howe and Mr. Gibbons, I understand that there is a recommendation from the State that this sentence not exceed the twenty years suspended with a cap of not to exceed ten years, and whatever probation [312 S.C. 147] the Court may order. Is that your understanding of the extent and nature of the plea bargain, Mr. Gibbons?

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THE DEFENDANT: Yes, Your Honor. ¹

THE COURT: Mr. Howe?

MR. HOWE: I believe it is, Your Honor. My understanding is the cap is ten years. Now how it would be suspended, I'm not familiar with that.

THE COURT: Well, twenty years suspended with a cap not to exceed ten on the suspended part, but it would be twenty hanging over his head.

MR. HOWE: Yes, sir.

THE COURT: The suspended not to exceed ten years.

MR. HOWE: But the actual service could not be more than ten, yes sir.

THE COURT: On the twenty suspended on ten.

MR. HOWE: Yes, sir, I understand.

THE COURT: Now, Mr. Rosier, do you understand that?

THE DEFENDANT: Yes, sir.

On May 19th, Howe sent a letter to the Solicitor pointing out Howe's belief there was a misunderstanding concerning the plea bargain he and the Solicitor had worked out. A copy of this letter was sent to the circuit judge on May 20th. The record reflects the judge received this letter prior to the May 21st hearing.

The record further reflects that at the May 18th hearing, the circuit judge, prior to accepting Rosier's guilty plea, asked him if he was under the influence of alcohol or drugs. Rosier replied, "No, sir." At the May 21st hearing, Howe told the circuit judge that after the May 18th hearing, Rosier told him that at the time he entered his guilty plea, he was under the influence of prescription medication. ² According to Howe, [312 S.C. 148] Rosier believed the judge was referring to "street drugs" when he asked Rosier if he was under the influence of drugs.

1. Rosier first argues that his plea was not knowing and voluntary because he misunderstood the plea bargain and the possible resulting sentence. The main reason Rosier objected to the twenty year sentence suspended upon service of ten is related to his parole eligibility. His attorney argued that with a twenty year sentence suspended to ten years service, parole eligibility is based on the twenty years and not the ten year cap. On the other hand, if Rosier received a straight ten year sentence, he would be eligible for parole sooner.

A guilty plea may not be accepted unless it is voluntarily and understandingly made. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Lambert, 266 S.C. 574, 225 S.E.2d 340 (1976). Once a defendant enters a guilty plea, however, it is within the sound discretion of the trial judge whether to allow withdrawal of that plea. State v. Riddle, 278 S.C. 148, 292 S.E.2d 795 (1982).

The record amply supports the circuit court's finding that Rosier understood the plea bargain. In the passage quoted above, the judge stated no fewer than three times that the plea bargain was based on a twenty year sentence with a ten year cap on the suspended portion. When the judge asked Rosier if he understood this, Rosier responded, "Yes, sir." Howe also indicated, when asked by the judge, that he understood the plea bargain to be twenty years suspended with a cap not to exceed ten years on the suspended portion.

Moreover, even if Rosier misunderstood the plea agreement, the outcome would be no different. A court is not required to

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accept a plea agreement that has been reached by the State and the defendant. Sartin v. Georgia, 201 Ga.App. 612, 411 S.E.2d 582 (1991). Before imposing sentence, the circuit judge stated that he was not sentencing on the basis of the plea bargain, but rather was sentencing [312 S.C. 149] on Rosier's voluntary plea. It was within his discretion to do so.

2. Rosier also argues that he was under the influence of prescription medications which affected his ability to enter a knowing and voluntary plea.

In a law case tried without a jury, questions regarding the credibility and weight of evidence are exclusively for the court. Sheek v. Crimestoppers Alarm Systems, 297 S.C. 375, 377 S.E.2d 132 (Ct.App.1989). The determination of credibility must be left to the trial judge who saw and heard the witnesses and is therefore in a better position to evaluate their veracity. Id.

The circuit judge observed Rosier at both the May 18th and the May 21st hearings. He determined Rosier was not so affected by medication that he did not know what he was doing and voluntarily entered his guilty plea on May 18th. The circuit judge stated that he did not believe Rosier's later testimony on May 21st and that Rosier was "faking" with the court. We see nothing that requires the court's findings in this regard to be set aside.

Accordingly, the circuit court's refusal to allow the guilty plea to be withdrawn is

AFFIRMED.

SHAW, J., concurs.

CONNOR, J., dissents in a separate opinion.

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