Davis Adv. Sh. No. 4
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Richard Carter, Respondent,
State of South
ON WRIT OF CERTIORARI
Appeal From Anderson County
H. Dean Hall, Post-Conviction Judge
Frank Eppes, Trial Judge
Opinion No. 24750
Submitted October 22, 1997 - Filed January 19, 1998
BURNETT, A.J.: The State appeals the grant of post
conviction relief (PCR) to respondent. We reverse.
Respondent was arrested in December 1990 for manufacturing
methamphetamine ("crank") and money laundering. After extensive plea
negotiations, respondent waived presentment of the indictments to the
grand jury and pled guilty to manufacturing methamphetamine and money
laundering. He was sentenced to imprisonment for twenty-five years and
twenty years, respectively, with the sentences to run concurrently. No
direct appeal was taken.
Respondent filed a PCR application alleging ineffective
assistance of counsel and his guilty plea was not voluntarily and
knowingly entered. After an evidentiary hearing, the PCR judge found
respondent's guilty plea counsel ineffective for failing to properly advise
respondent of the maximum penalty respondent could receive on the
indictment for manufacturing methamphetamine. Further, the PCR judge
found there was confusion on the part of the guilty plea judge and the
solicitor during the guilty plea proceeding over the maximum penalty for
manufacturing methamphetamine. Thus, respondent's guilty plea was not
voluntarily and knowingly entered. The PCR judge ordered the pleas
The State contends the PCR judge erred in finding
respondent's guilty pleas were involuntary due to counsel's advice that the
maximum penalty on the manufacturing charge was a thirty year sentence
for a second offense.1 We agree.
The test for determining the validity of a guilty plea based
upon alleged ineffective assistance of counsel is whether counsel's advice
was within the range of competence demanded of attorneys in criminal
cases and whether there is a reasonable probability that, but for counsel's
errors, the defendant would not have pled guilty. Hill v. Lockhart, 474
U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Ray v. State, 303 S.C. 374,
401 S.E.2d 151 (1991); Hinson v. State, 297 S.C. 456, 377 S.E.2d 338
(1989). "A defendant who pleads guilty upon the advice of counsel may
only attack the voluntary and intelligent character of the guilty plea by
showing the advice he received from counsel was not within the range of
competence demanded of attorneys in criminal cases." Richardson v. State,
310 S.C. 360, 363, 426 S.E.2d 795, 797 (1993).
Crank is methamphetamine which is a Schedule II drug.
South Carolina Code Ann. § 44-53-370(b)(2) (Supp. 1996) provides a
penalty of ten years imprisonment or a $10,000 fine for a second offense of
manufacturing a Schedule II drug. Schedule II includes
methamphetamine. S.C. Code Ann. § 44-53-210(d) (1976 & Supp. 1996).
"'Crank' means amphetamine or methamphetamine . . . ." S.C. Code Ann.
§§ 44-53-110 (Supp. 1996). South Carolina Code Ann. § 44-53-375, as it
read at the time of petitioner's offense, provided that a person who
violates § 44-53-370 by manufacturing "crank" (methamphetamine) shall be
sentenced to imprisonment for no less than twenty-five years and no more
than thirty years and fined no less than $50,000, for a second offense.2
Respondent waived presentment of the indictments to the
grand jury. The indictment is captioned "Manufacturing
Methamphetamine 44-53-370" on both its back and its face. The body of
the indictment states respondent did "unlawfully manufacture
methamphetamine without first obtaining a license to do so."
At the PCR hearing, respondent testified he agreed to enter a
plea of guilty to manufacturing in exchange for a twenty-five year sentence
based on counsel's advice that he was exposed to thirty years.
Additionally, respondent agreed to plead guilty to money laundering in
exchange for a twenty year term of imprisonment which would run
concurrently with the twenty-five year sentence. According to respondent,
he would not have taken the plea agreement on either charge had he
known the manufacturing charge only carried a potential ten year
Counsel testified that plea negotiations were based on
respondent being sentenced under § 44-53-375 which carried a more severe
penalty than the general statute, § 44-53-370. Therefore, counsel's advice
for no more than twenty-five years. S.C. Code Ann. § 44-53-375 (Supp.
to respondent concerning his maximum penalty exposure focused on the
penalties outlined in § 44-53-375.
The PCR judge found respondent's guilty pleas were
involuntary due to counsel's advice that the maximum penalty on the
manufacturing methamphetamine charge was a thirty year sentence for a
second offense. According to the PCR judge, because respondent was
indicted under § 44-52-370, the maximum sentence exposure for a second
offense was ten years. The PCR judge found counsel's misadvice as to
respondent's maximum sentence exposure affected both the plea to the
manufacturing charge and the plea to the money laundering charge
because respondent would not have accepted the negotiated sentences had
he been advised the maximum penalty for manufacturing
methamphetamine was ten years.
In our opinion, counsel's advice was correct; therefore, counsel's
performance was not deficient and he was not ineffective. Once a
defendant is convicted under § 44-53-370, the sentencing guidelines for this
conviction involving the Schedule II drug methamphetamine (crank) is set
forth in § 44-53-375. Counsel correctly recognized that a conviction under
§ 44-53-370 for manufacturing crank would require respondent to be
sentenced under the stricter penalties of § 44-53-375. Thus, counsel
properly advised respondent the maximum penalty he could receive would
be thirty years.
The PCR judge also found because the guilty plea judge and
the solicitor expressed confusion over the appropriate sentencing range
during the guilty plea, respondent's guilty pleas were not voluntarily and
knowingly entered. We disagree.
To find a guilty plea is voluntarily and knowingly entered, the
record must establish the defendant had a full understanding of the
consequences of his plea and the charges against him. Boykin v. Alabama,
395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Dover v. State, 304
S.C. 433, 405 S.E.2d 391 (1991). To ensure the defendant understands,
the trial judge should question the defendant about the facts surrounding
the crime and the punishment which could be imposed. Dover v. State,
suj2ra. However, the trial judge does not have to direct the defendant's
attention to every consequence of his plea provided the record reveals
affi=ative awareness of the consequences of a guilty plea. LoPiano v.
State, 270 S.C. 563, 243 S.E.2d 448 (1978).
We conclude respondent's guilty pleas were voluntarily and
knowingly entered. Although there was some confusion over whether the
fine was mandatory and over the sentencing range the guilty plea judge
correctly informed respondent his maximum exposure for a conviction for
manufacturing methamphetamine was thirty years. The record reveals
respondent understood the consequences of his pleas and the charges
against him. Further, respondent's counsel had correctly informed
respondent of the sentencing possibilities; therefore, respondent cannot
complain that his pleas were not voluntarily and knowingly entered.
Richardson v. State, supra.
The underlying issue in this case is whether the guilty plea
judge had subject matter jurisdiction to sentence respondent under § 44-
53-375 since respondent only waived presentment to the grand jury of an
indictment citing § 44-53-370.
Issues related to subject matter jurisdiction may be raised at
any time. Browning v. State, 320 S.C. 366, 465 S.E.2d 358 (1995). Except
for certain minor offenses, the circuit court does not have subject matter
jurisdiction to hear a guilty plea unless (1) there has been an indictment
which sufficiently states the offense; (2) there has been a waiver of
indictment; or (3) the charge is a lesser included charge of the crime
charged in the indictment. Browning v. State, supra; Murdock v. State,
308 S.C. 143, 417 S.E.2d 543 (1992). An indictment is sufficient if the
offense is stated with sufficient certainty and particularity to enable the
court to know what judgment to pronounce, and the defendant to know
what he is called upon to answer and whether he may plead an acquittal
or conviction thereon. Browning v. State, supra. An indictment is
ordinarily sufficient if it is in the language of the statute. State v. Jacobs,
238 S.C. 234, 119 S.E.2d 735 (1961). Further, the plain language of an
indictment is not to be ignored merely because its caption does not
precisely conform with the wording on its face. Crady v. State, 248 S.C.
522, 151 S.E.2d 670 (1966). The test for determining when a crime is a
lesser included offense is whether the greater of the two offenses includes
all the elements of the lesser offense. Murdock v. State, supra.
We find the indictment sufficient. While the caption of this
indictment refers to § 44-53-370, the plain language of the body of the
indictment clearly notifies respondent that he is charged with
manufacturing methamphetamine. Respondent's counsel informed
respondent of the potential sentence if convicted of this crime and
respondent waived presentment of this indictment.
Section 44-53-375 provides a violation of § 44-53-370 that
involves methamphetamine (crank) carries a greater sentence than the
sentence provided for in § 44-53-370 for other Schedule II drugs.
Therefore, § 44-53-375 does not define a separate crime but only an
enhanced punishment. Further, the elements are exactly the same for an
offense under both sections. Thus, the guilty plea judge had subject
matter jurisdiction to accept respondent's pleas, and respondent was
properly sentenced under § 44-53-375.
FINNEY, C.J., TOAL, MOORE and WALLER, JJ., concur.