Whetsell v. State, 21449

• Citation: 277 S.E.2d 891,276 S.C. 295
• Decision Date: 13 May 1981
• Docket Number: No. 21449,21449
• Court: United States State Supreme Court of South Carolina
• Parties: Kenneth L. WHETSELL, Respondent, v. STATE of South Carolina, Appellant. and Charles E. HAWLEY, Respondent, v. STATE of South Carolina, Appellant.

Page 891

277 S.E.2d 891

276 S.C. 295

Kenneth L. WHETSELL, Respondent, v. STATE of South Carolina, Appellant. and Charles E. HAWLEY, Respondent, v. STATE of South Carolina, Appellant.

No. 21449.

Supreme Court of South Carolina.

May 13, 1981.

Atty. Gen. Daniel R. McLeod and Asst. Attys. Gen. William K. Moore and Donald J. Zelenka, Columbia, for appellant.

Deputy Appellate Defender Vance J. Bettis, of S. C. Commission of Appellate Defense, Columbia, for respondents.

GREGORY, Justice:

The State appeals the granting of post conviction relief to respondents on the ground their attorney's failure to make a motion to suppress evidence constituted ineffective assistance of counsel. We reverse.

Respondents pled guilty in General Sessions Court for Charleston County on October 5, 1978 to five (5) indictments charging them with housebreaking and grand larceny. They received three consecutive and two concurrent six (6) year sentences for a total of eighteen (18) years.

The events leading to respondents' guilty pleas began when they, riding in respondent Whetsell's automobile, were stopped by the police at 3:00 a. m. for a traffic violation. The police seized a sledge hammer from the back seat of the automobile. They also searched respondents' persons, recovering a motel room key from respondent Hawley.

The police then turned over respondents to another local police unit who transported them to Ravenel, some fifteen miles away, where they were charged with breaking into a Ravenel market. Later they were transferred to the Charleston County jail.

Meanwhile, the officers who initially stopped respondents went to the Catalina Motel. They met respondent Whetsell's sister at a motel room door. She and her children were staying there. The police used the key seized from respondent Hawley to enter the room where they found a vast quantity of stolen goods. It is this evidence and their subsequent confessions which respondents contend their attorney should have moved to suppress.

When they entered their guilty pleas, respondents stated they were guilty, they were pleading guilty freely and voluntarily without promises or threats from anyone and they were satisfied with the representation of their attorney. They further stated they were aware of their rights to a jury trial and they were not under the influence of drugs or alcohol. The trial judge advised them of the maximum sentence on each indictment. The State chose not to present indictments for six additional charges in Berkeley County and two additional charges in Charleston County of housebreaking and grand larceny. More than a year later, respondents filed separate petitions for post conviction relief which were granted by the trial judge. This appeal followed.

The general rule is that guilty pleas, freely and voluntarily entered, act as a waiver of all non-jurisdictional defects and defenses, including the claims of a violation of a constitutional right prior to the plea. Rivers v. Strickland, 264 S.C. 121, 213 S.E.2d 97 (1975); State v. Fuller, 254 S.C. 260, 174 S.E.2d 774 (1970), modified and vacated on other grounds, 408 U.S. 937, 92 S.Ct. 2863, 33 L.Ed.2d 755 (1972). This rule applies to the claim that counsel was ineffective.

Furthermore, review of a trial error is unnecessary where a defendant admits in open court after his conviction that he is guilty. State v. Sroka, 267 S.C. 664, 230 S.E.2d 816 (1976). Here, respondents not only reiterated their guilt at the post conviction hearing, but stated they would plead guilty again if granted a new trial.

Even if there were no waiver, counsel's failure to make the motion to suppress here did not constitute ineffective assistance of counsel rendering the guilty pleas involuntary.

The United States Supreme Court faced the issue of whether counsel's failure to seek exclusion of an allegedly coerced confession constituted ineffective assistance of counsel rendering a guilty plea involuntary as follows:

"As we said in Brady v. United States, 397 U.S. (742) at 756, 757 (90 S.Ct. 1463, 1473) 25 L.Ed.2d (747) at 760, 761, the decision to plead guilty before the evidence is in frequently involves the making of difficult judgments. All the pertinent facts normally cannot be known unless witnesses are examined and cross-examined in court. Even then the truth will often be in dispute. In the face of unavoidable uncertainty, the defendant and his counsel must make their best judgment as to the weight of the State's case. Counsel must predict...