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24741 - Noah R. Robinson v. State

Davis Adv. Sh. No. 3
S.E. 2d


In The Supreme Court

Noah Robinson, Respondent,


State of South

Carolina, Petitioner.


Appeal From Greenville County

James E. Moore, Trial Judge

Frank P. McGowan, Jr., Post-Conviction Judge

Opinion No. 24741

Submitted September 18, 1997 - Filed January 12, 1998


Attorney General Charles Molony Condon, Deputy
Attorney General John W. McIntosh, Assistant
Deputy Attorney General Teresa A. Knox, and
Assistant Attorney General Matthew M. McGuire, all
of Columbia, for Appellant.
Chief Attorney Daniel T. Stacey, of South Carolina
Office of Appellate Defense, of Columbia, for

TOAL, A.J.: The Post Conviction Relief ("PCR") court granted

Respondent Noah Robinson credit for time served while in federal prison; this

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credit was calculated from the date of the affirmance of Robinson's state court

conviction. We reverse.

Factual/Procedural Background

In 1988, Robinson was indicted for murder, criminal conspiracy to

commit murder, and accessory before the fact of assault and battery with

intent to kill. In January 1989, Robinson was tried on these charges and

found guilty of accessory after the fact of a felony. The trial court declared

a mistrial on Robinson's other charges because of the failure of the jury to

return a verdict. Robinson was sentenced to ten years confinement.

Robinson filed a notice of intent to appeal and posted an appeal bond.

While out on appeal bond, he returned to Chicago. Later in 1989, Robinson

was charged in federal court with violations of the Racketeer Influenced and

Corrupt Organizations ("RICO") laws. He was subsequently convicted and

sentenced to six years in prison. In August 1992, Robinson was convicted

and sentenced to life imprisonment on additional criminal charges relating

to his involvement with the Chicago-based El Rukn street gang. The federal

sentences were to run concurrently with Robinson's state sentence. We

affirmed Robinson's state conviction in September 1991, which was during the

interim between his federal court convictions. State v. Robinson, 305 S.C.

469, 409 S.E.2d 404 (1991), cert. denied, 503 U.S. 937 (1992).

In November 1992, Robinson filed a PCR application in which he

sought to obtain credit in South Carolina for time served in federal custody

from the date we affirmed his conviction. Robinson had been exclusively in

federal custody from the date of his arrest in 1989 for RICO violations until

January 18, 1995, when he was admitted to, but deemed absent with leave

from, the South Carolina Department of Corrections ("SCDOC"). After an

evidentiary hearing, the PCR court issued an order of dismissal denying, all

of Robinson's claims. Robinson filed a Rule 59(e) Motion to Reconsider the

Order of Dismissal. After another hearing,1 the court amended its order of

dismissal, affirming the prior order, but modifying it to the extent of granting

Robinson credit for time served from the date we affirmed Robinson's state

court conviction.

The State petitioned for a writ of certiorari, which we granted to review

whether Robinson "commenced" the service of his South Carolina sentence

1 At the time of the hearing, Robinson was incarcerated in the Oxford

Federal Correctional Institution, Oxford, Wisconsin.

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when his conviction was affirmed.


The credit for time. served statute provides in pertinent part:
The computation of the time served by prisoners under sentences
imposed by the courts of this State shall be reckoned from the
date of the imposition of the sentence. But when (a) a prisoner
shall have given notice of intention to appeal, (b) the
commencement of the service of the sentence follows the
revocation of probation or (c) the court shall have designated a
specific time for the commencement of the service of the sentence,
the computation of the time served shall be reckoned from the
date of the commencement of the service of the sentence.

S.C. Code Ann. § 24-13-40 (1989)(emphasis added). Here, we must determine

when Robinson commenced the service of his sentence. The State argues

that the PCR court erred by finding that Robinson commenced his sentence

on the date his conviction was affirmed. We agree. We hold that for

purposes of calculating credit for time served, persons released on appeal

bond commence service of their sentences when they submit to the custody

of the SCDOC, and not upon affirmance of their convictions.

In Maxey v. Maxwell, 224 S.C. 320, 78 S.E.2d 633 (1953), the habeas

corpus petitioner was convicted of burglary and assault and battery with

intent to kill. The petitioner was freed on appeal bond pending disposition

of his appeal by this Court. His convictions were affirmed on October 30,

1950, and he was committed to the state penitentiary on November 15, 1950.

In interpreting the applicable statute,2 we noted that "service of the

sentences, which was stayed by the appeal . . . , is reckoned from the date

of the commencement of the service of the sentences, which in this case was

November 15, 1950." Maxey, 224 S.C. at 330, 78 S.E.2d at 637. Therefore,

Maxey did not begin service of his sentence until six-teen days after his

conviction was affirmed -- until he submitted to the custody of the state

penitentiary. There is no reason to interpret the statute differently when the

defendant seeks credit on his South Carolina sentence for time served in the

2 The statutory language at issue is the same as under the current

statute. See 1952 S.C. Code of Laws § 55-11.

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custody of another sovereignty.3

The law governing the imposition of concurrent sentences requires

elaboration inasmuch as it is critical to the determination of when Robinson

"commenced" the service of his sentence. South Carolina is "without.

authority to modify or place conditions on a sentence from a foreign

jurisdiction." Clark v. State, 321 S.C. 377, 380, 468 S.E.2d 653, 655 (1996).

Correspondingly, a foreign jurisdiction is without authority to modify or place

conditions on a sentence imposed in South Carolina. Therefore, if a second

jurisdiction imposes on a convict a sentence to run concurrently with the

previously imposed sentence from another jurisdiction, it is the responsibility

of the second jurisdiction to effectuate its concurrent sentence and thus

ensure the convict receives credit for time served in both jurisdictions.4 To

achieve this result, the second jurisdiction must transfer custody of the

convict to the first jurisdiction.

In Clark v. State, 321 S.C. 377, 468 S.E.2d 653, South Carolina failed

to transport Clark to federal custody to effectuate South Carolina's imposition

of a concurrent sentence. Clark pled guilty in federal court to possession of

a sawed off shotgun. The judge sentenced him to ten years confinement.

Subsequently, Clark pled guilty to several offenses in state court. Pursuant

to a plea agreement, the judge ordered that the sentences run concurrently

with Clark's previously imposed federal sentence. However, instead of being

transported to federal custody, Clark remained in state prison. Clark then

filed a PCR petition claiming that his plea bargain was not being enforced.

We noted that "[t]he sentence of a person convicted of a federal offense

commences to run from the date on which such person is received at the

3 This case should be distinguished from those involving defendants

arrested in another state and awaiting extradition and trial in South

Carolina. Under S.C. Code Ann. § 24-13-40, these defendants receive credit

for this time served prior to trial and sentencing, even though it is spent in

another Jurisdiction. See State v. Dozier, 263 S.C. 267, 210 S.E.2d 225


4 In Cobb v. State, 286 S.C. 92, 332 S.E.2d 530 (1985), Cobb was

sentenced in North Carolina for assault. He subsequently pled guilty in

South Carolina to rape. The South Carolina trial court sentenced him to 30

years in prison to be served concurrently with his North Carolina sentence.

On appeal, we held that "a South Carolina judge has authority to impose a

sentence to run concurrently with a sentence already being served in another

state." Cobb, 286 S.C. at 94, 332 S.E.2d at 531.

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penitentiary." Clark, 321 S.C. at 379, 468 S.E.2d at 655; see 18 U.S.C. §

3585(a) (1994)("A sentence to a term of imprisonment commences on the date

the defendant is received in custody . . . ."). As a result, we concluded that

"the only way to effectuate a state trial court's order that a state sentence

run concurrently with a prior federal sentence is to have the defendant

returned to federal custody to serve his federal sentence." Clark, 321 S.C. at

380, 468 S.E.2d at 655. Because Clark had not been transferred to federal

custody, he failed to receive credit against his federal sentence for the time

he served in South Carolina custody.

In State v. Furman, 288 S.C. 243, 341 S.E.2d 795 (1986), the Georgia

court neither transported Furman to South Carolina nor specified that its

sentence was to be concurrent with the previously imposed South Carolina

sentence. Furman was convicted in South Carolina for voluntary

manslaughter and sentenced to twelve years imprisonment. Pending the

disposition of his appeal, he was released. While out on appeal bond,

Furman was arrested and convicted in Georgia for murder. He served his

sentence in Georgia and was then returned to South Carolina. He filed a

PCR application to receive credit against his South Carolina sentence for the

time he spent in a Georgia prison. We held that "[i]n cases where sentences

are imposed by two different sovereignties, the sentence will run concurrently

only if so specified." Id. at 245, 341 S.E.2d at 796. Because the Georgia

court failed to specify whether the sentences were to run concurrently, we

concluded that Furman had to serve his South Carolina sentence without any

credit for serving his Georgia sentence. Furman should not be read to imply

that a convict will automatically receive credit for time served if a concurrent

sentence is specified, even though custody of the convict has not been

transferred to the first jurisdiction. Furman is overruled to the extent it

suggests that only an order specifying concurrence is required for the convict

to receive a concurrent sentence.

In the present case, the federal district court specifically stated that the

federal sentences were to be served concurrently with the state sentence.

Because the federal district court did so specify, Robinson now claims that he

is entitled to credit for the time served in federal custody from the date his

conviction was affirmed. We disagree. Although the federal district court

had the authority to impose a sentence concurrent with Robinson's prior

South Carolina sentence, 18 U.S.C. § 3584(a) (1994), the federal court could

not modify or place conditions on the previously imposed South Carolina

sentence. Instead, the Bureau of Prisons should have delivered Robinson into

South Carolina custody so that the federal court's imposition of a concurrent

p. 39


sentence could be satisfied.5 See 18 U.S.C. § 3621(b) (1994)(Bureau of

Prisons has statutory authority to designate a state correctional facility as

the convict's place of imprisonment). Had Robinson been transferred to South

Carolina custody, he would have begun the service of his state court sentence.

A convict may also receive credit for time served in another jurisdiction

by notifying the SCDOC that he is unable to personally submit to South

Carolina custody to commence the service of his sentence. Upon such

notification, the SCDOC will place a detainer on the convict. See Clark, 321

S.C. at 380 n.3, 468 S.E.2d at 655 n.3. While the convict is subject to a

South Carolina detainer, he is constructively in South Carolina custody. As

a result, a convict will receive credit for time spent in another jurisdiction

while subject to a South Carolina detainer. Because Robinson failed to

immediately notify the SCDOC of his arrest and so submit himself to South

Carolina custody, he cannot receive credit for all his time served in federal

custody. Instead, he can only receive credit for the time he has served in

federal custody since he submitted to South Carolina custody on January 18,

1995, the date he was admitted to, but deemed absent with leave from, the



For the foregoing reasons, the PCR court's order is REVERSED.

FINNEY, C.J., WALLER and BURNETT, JJ., concur.

5 See, e.g., United States v. Williams, 65 F.3d 301 (2d Cir. 1995)(A

sentencing court has no authority to order that a convicted defendant be

confined in a particular facility because those decisions are within the sole

discretion of the Bureau of Prisons.).

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