Sweet v. State, 19147

• Decision Date: 12 January 1971
• Docket Number: No. 19147,19147
• Citation: 255 S.C. 293,178 S.E.2d 657
• Parties: James Edward SWEET, Appellant, v. The STATE of South Carolina and William D. Leeke, Director, Department ofCorrections, Respondents.
• Court: South Carolina Supreme Court

Page 657

178 S.E.2d 657

255 S.C. 293

James Edward SWEET, Appellant, v. The STATE of South Carolina and William D. Leeke, Director, Department ofCorrections, Respondents.

No. 19147.

Supreme Court of South Carolina.

Jan. 12, 1971.

Frank Register, Columbia, for appellant.

Atty. Gen. Daniel R. McLeod and Asst. Attys. Gen. Emmet H. Clair and John P. Wilson, Columbia, and Sol. B. O. Thomason, Greenville, for respondents.

LEWIS, Justice.

This is a habeas corpus proceeding in which appellant seeks post-conviction relief from a sentence for statutory rape. The sentence was imposed after the entry of a plea of guilty which appellant now contends was coerced by a fear of the death penalty. The lower court, after an evidentiary hearing, held that the plea was voluntarily and understandingly entered, from which this appeal comes. We affirm.

A preliminary issue involves the charge that the lower court erred in entering a final order without taking the testimony of appellant's mother.

A hearing was held on December 9, 1968. Upon inquiry by the court, appellant stated that he desired to have his mother testify in his behalf, but that she was in the hospital and unable to appear at that time. The hearing was then continued for two or three days in order to permit appellant to obtain his mother's testimony. Her testimony was never offered or taken and the court, after a delay of approximately five months, issued a final order on May 20, 1970 denying the relief sought. Appellant contends that he was denied the right to call his mother, a material witness, to substantiate the charges that his plea was coerced.

Whether or not a continuance would be granted to permit appellant to present the testimony of his mother and the length of time to be allowed for such purpose were questions addressed to the sound discretion of the trial judge and his rulings will not be disturbed unless there is a clear showing of an abuse of such discretion.

There is nothing to indicate that the mother's testimony would be relevant or material to the issue of whether fear of the death penalty coerced appellant's plea. Irrespective however, ample opportunity was afforded appellant and his attorney to present the testimony and the record reveals no effort to do so. Under these circumstances, we find no abuse of discretion on the part of the lower court in deciding the issues without taking the testimony of appellant's mother.

Appellant entered a plea of guilty, on October 30, 1967, to statutory rape of a woman child over ten years of age. The punishment for the offense, under Section 16--80 of the 1962 Code of Laws is death unless the jury returns a special verdict recommending mercy, in which event the punishment would be reduced, under the present facts, to a term not exceeding fourteen years. Appellant's plea was accepted by the court, without a jury verdict, as then permitted by Section 17--553.4, Supplement to the 1962 Code of Laws, and a sentence of fourteen years was imposed.

Appellant, now confined under the above sentence, seeks to have his plea of guilty set aside upon the sole ground that it was unconstitutionally coerced by a fear of the death penalty if he went to trial on the charge of rape.

Section 17--553.4, under which the plea was received, was declared unconstitutional in State v. Harper, 251 S.C. 379, 162 S.E.2d 712, following the decision of the United States Supreme Court in United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138, because of...