THE STATE OF SOUTH CAROLINA
In The Supreme Court
Derrick Kernard Hope, Petitioner/Respondent,
State of South Respondent/Petitioner.
ON WRIT OF CERTIORARI
Appeal From York County
Robert L. McFadden, Trial Judge
John C. Hayes, III, Post-Conviction Judge
Opinion No. 24695
Submitted September 18, 1997 - Filed October l3, 1997
REVERSED AND REMANDED
Wanda H. Haile, Senior Assistant Appellate
Defender, South Carolina Office of Appellate
Defense, of Columbia, for petitioner/respondent.
Charles M. Condon, Attorney General, John W.
McIntosh Deputy Attorney General, Teresa A.
Knox, Assistant Deputy Attorney General, and
Matthew M. McGuire, Assistant Attorney General,
all of Columbia, for respondent/petitioner.
WALLER, A.J.: In March 1987, a jury convicted Derrick
Kernard Hope of assault to commit first degree criminal sexual conduct
("CSC") and first degree burglary. He filed for post-conviction relief attacking
both convictions.1 After an evidentiary hearing, a judge denied relief
regarding Hope's conviction for assault with intent to commit first degree
CSC, and granted relief regarding his conviction for first degree burglary.
This Court granted certiorari.
I. Did the trial court have subject matter jurisdiction over the charge for
which Hope was convicted?
II. Was counsel ineffective in falling to request a jury charge on S.C.
Code Ann. § 16-13-170?
I. Subject Matter Jurisdiction
At trial, the judge allowed the State to amend Hope's assault
indictment from assault with intent to commit third degree CSC to assault
with intent to commit first degree CSC. Hope argues this was error. We
Under S.C. Code Ann. § 17-19-100 (1976), an indictment may be
amended because of a variance in evidence produced at trial only if such
amendment does not change the nature of the offense charged. Clearly, the
amendment here changed the nature of the offense, as we have previously
held. State v. Riddle, 301 S.C. 211, 391 S.E.2d 253 (1990) (amendment of
indictment from assault with intent to commit third degree CSC to assault
initially filed for post-conviction relief on December 14, 1988. After an
evidentiary hearing, a judge denied relief and this application (along with
an amended one dated September 7, 1989) was dismissed on September 7,
1989. On June 24, 1992, Hope filed a subsequent PCR application and
was granted a belated appeal pursuant to Austin v. State, 305 S.C. 453,
409 S.E.2d 395 (1991), because his original PCR counsel failed to perfect
an appeal from the first denial of PCR in 1989. During this appeal, it
was discovered there was no record of Hope's first evidentiary hearing.
We then ordered Hope receive a new evidentiary hearing based on his first
PCR application. Such a hearing was conducted on December 5, 1995. It
is the order resulting from this last evidentiary hearing which is currently
with intent to commit first degree CSC deprived court of subject matter
jurisdiction).2 Thus, the PCR judge erred in refusing to grant Hope's
application for post-conviction relief on this ground.3 Hope is therefore
entitled to a new trial on this charge.4
II. Lesser Included Offense
The PCR judge found trial counsel ineffective in failing to request a
jury charge on "entering without breaking," holding it is a lesser included
offense of first degree burglary. The State argues this was error. We agree.
"The test for determining when a crime is a lesser included offense of
the crime charged is whether the greater of the two offenses includes all the
elements of the lesser offense. If the lesser offense includes an element not
included in the greater offense, then the lesser offense is not included in the
greater." State v. Bland, 318 S.C. 315, 317, 457 S.E.2d 611, 612 (1995)
(internal citations omitted). First degree burglary is defined, in pertinent
part, as entering "a dwelling without consent and with intent to commit a
the court of subject matter jurisdiction over Defendant's conviction for
assault with intent to commit first degree CSC.
3 The PCR judge found this issue was not properly before him
because it could have been raised on direct appeal. This was clearly an
improper basis on which to deny relief since matters of subject matter
jurisdiction may be raised at any time. Browning v. State, 320 S.C. 366,
460 S.E.2d 358 (1995); Slack v. State, 311 S.C. 415, 429 S.E.2d 801 (1993).
4 We summarily reject the State's argument that all Hope is entitled
to is a sentencing hearing for assault to commit third degree CSC. This
charge was not even submitted to the jury at Hope's trial. Furthermore,
we disagree with the State's contention that a finding of guilt of assault to
commit first degree CSC necessarily indicates a finding of all elements
included in assault to commit third degree CSC. See S.C. Code Ann. §
16-3-652 (1976) (first degree CSC requires proof of either aggravated force
or that victim was also victim of other offense, including burglary); S.C.
Code Ann. § 16-3-654 (1976) (third degree CSC requires proof of either
force or coercion or knowledge that victim is mentally handicapped or
physically helpless). To attempt to second-guess a jury's verdict under the
circumstances of this case would be fundamentally unfair.
crime in the dwelling." S.C. Code Ann. § 16-11-311 (Supp. 1996). "Entering
without breaking" is defined, in pertinent part, as entering, without breaking,
or attempting to enter any house or vessel, with intent to steal or commit
any other crime. S.C. Code Ann. § 16-13-170 (1976).5
The difference in elements between these two offenses is that under the
former, it must be shown the entering was accomplished without consent,
whereas under the latter, it must be shown the entering was accomplished
without breaking. We find this difference dispositive. In State v. Kirby, ___
S.C. ___, 481 S.E.2d 150 (Ct. App. 1996), the issue was whether unlawful
carrying of a pistol is a lesser included offense of possession of a firearm
during the commission of a violent crime. The Court of Appeals, relying on
precedent from this Court,6 held it was not. It reasoned that one could be
convicted of the greater offense regardless of whether possession of the
weapon was lawful or unlawful, whereas the lesser offense required the
possession to be unlawful. In other words, the greater offense did "not
necessarily, include all of the elements of [the lesser]." 481 S.E.2d at 154.
The same reasoning applies in this case: one can be convicted of first degree
burglary whether or not a breaking occurred (the focal inquiry being whether
entry was made without consent), but to be convicted of the lesser it must be
shown the entering was accomplished without a breaking.7 Because first
degree burglary does not necessarily include all elements of "entering without
breaking," the latter cannot be a lesser included offense.
The PCR judge's finding counsel ineffective for failing to request a
charge on "entering without breaking" is thus without any evidentiary
support. See Clark v. State, ___ S.C. ___, 468 S.E.2d 653 (1996) (rulings of
PCR judge will not be upheld where no evidence exists to support them).
Hope was not charged with this offense, and we now hold it is not a lesser
in this case) to make its violation a felony as opposed to a misdemeanor.
6 In State v. Lawrence, 266 S.C. 423, 223 S.E.2d 856 (1976), this
Court held convictions for both armed robbery and unlawful possession of
a pistol did not violate the Double Jeopardy Clause because proof of armed
robbery only required possession of a weapon, regardless of whether such
possession was lawful or not.
7 A breaking is defined as "any act of physical force, however slight,
whereby any obstruction to entering is forcibly removed." State v. Clamp,
225 S.C. 89, 99, 80 S.E.2d 918, 922 (1954).
included offense of the crime for which he was charged. See Kirby, 481
S.E.2d at 153 (indictment will sustain a conviction for a lesser offense only
if the lesser offense is included within the greater charged offense).
We reverse the PCR judge's denial of relief as to Hope's conviction for
assault to commit first degree CSC. Hope is entitled to a new trial on the
charge of assault to commit CSC because of the trial court's lack of subject
matter jurisdiction over the offense for which he was convicted. Additionally,
we reverse the PCR judge's grant of relief as to Hope's conviction for first
degree burglary. This case is therefore remanded for further proceedings
consistent with this opinion.
REVERSED AND REMANDED.
FINNEY, C.J., Moore and BURNETT, JJ., concur.