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24892 - Tilley v. State

Davis Adv. Sh. No. 4
S.E. 2d



THE STATE OF SOUTH CAROLINA



THE STATE OF SOUTH CAROLINA

In The Supreme Court



Troy E. Tilley, Respondent,

v.

State of South Carolina, Petitioner.



ON WRIT OF CERTIORARI



Appeal From Horry County

Don S. Rushing, Trial Judge

David H. Maring, Sr., Post-Conviction Judge





Opinion No. 24892

Submitted January 20, 1999 - Filed January 25, 1999



AFFIRMED



Attorney General Charles Molony Condon, Deputy

Attorney General John W. McIntosh, Assistant

Deputy Attorney General Teresa A. Knox, and

Assistant Attorney General J. Benjamin Aplin, all of

Columbia, for petitioner.



Chief Appellate Defender Daniel T. Stacey, of the

S.C. Office of Appellate Defense, of Columbia, for

respondent.



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TILLEY v. STATE





PER CURIAM: The State filed a petition for a writ of certiorari

following the grant of respondent's application for post-conviction relief

(PCR). We grant the petition for a writ of certiorari and dispense with

further briefing. After a thorough review of the record. we affirm.





Respondent pled guilty to kidnapping, first degree criminal

sexual conduct, and possession of a firearm during the commission of a

violent crime. He was sentenced to life imprisonment for kidnapping,

eighteen years for first degree criminal sexual conduct, and five years for

possession of a weapon, during the commission of a violent crime. The

sentences were to be served consecutively. No direct appeal was taken.





The petition for a writ of certiorari is from the denial of the

State's motion to dismiss respondent's PCR application as successive and

from the PCR judge's order requiring respondent's sentence to be served in a

particular sequence.





Respondent filed three PCR applications prior to the application

at issue here. The PCR application which is the subject of this appeal was

filed on November 20, 1995. Following a hearing, the PCR judge granted

respondent relief on the claim that his plea was involuntary, and

unintelligently and unknowingly entered because he was not fully aware of

the no-parole consequences of his guilty plea. The relief granted was an

order requiring respondent's sentences to be served in a particular sequence.







Respondent applied for post-conviction relief on the basis of a

letter that was sent to him by the South Carolina Department of Probation,

Parole, and Pardon Services (Parole Board) on October 26, 1995. In that

letter, the Parole Board informed respondent that he was not eligible for

parole because the law prevents his release on the five-year sentence for

possession of a firearm during the commission of a violent crime.1 Further


1S.C. Code Ann. § 16-23-490 (1976 & Supp. 1997) provides for a

mandatory five-year sentence for a person convicted under this section. Moreover,



[t]he person sentenced under this section is not

eligible during this five-year period for parole ....

The five years may not be suspended and the person



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TILLEY v. STATE





the Parole Board informed respondent that his five-year sentence was

consecutive to the other sentences he received, and, as a result, the Parole

Board was prevented from considering him for parole on the sentences of life

and eighteen years, as well as the five-year sentence.





During the PCR hearing, Janet Paduhovich, an attorney for the

Parole Board, testified that respondent was not eligible for parole due to the

consecutive nature of his sentence. Paduhovich stated although respondent

is parole eligible on the kidnapping and criminal sexual conduct convictions,

as a practical matter, the Parole Board could not consider respondent for

parole because of the mandatory five-year sentence, which follows the

kidnapping and criminal sexual conduct convictions. Paduhovich stated that

this was due to the sentencing structure. Paduhovich further testified that,

unless otherwise directed by the sentencing judge, the Parole Board

interprets the sentence structure as meaning respondent must serve out his

term on count one, which is life, before he can begin serving out his term on

the next two counts, which are 18 years and 5 years, respectively. Therefore,

in theory, respondent is eligible for parole, but practically he is not parole

eligible because he must serve out his life term before he ever gets to the

mandatory term of five years.





Respondent testified at the PCR hearing that the reason he

never brought up the parole eligibility claim before was because the Parole

Board had given him a printout every six months, which stated his parole

eligibility date and his work credits. Each subsequent printout showed an

earlier parole eligibility date due to respondent's work credits. Respondent

received these printouts until the month he was eligible for parole and the

Parole Board sent him the letter stating he was not eligible for parole.

Respondent further testified that he had taken parole preparation classes.





Respondent's plea counsel testified at the PCR hearing that he

did not know what respondent's sentence meant in terms of parole eligibility

and that he was not aware that respondent would not be eligible for parole.




may not complete his term of imprisonment in less

than five years pursuant to good-time credits or work

credit, but may earn credits during this period.

§ 16-23-490(C).



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TILLEY v. STATE





On the claim that respondent's plea was involuntary, the PCR

judge found that respondent had no way of knowing at the time he

voluntarily pled guilty that an actual sentence of life without parole could be

imposed on him.





I. Successive Application



The State first argues the PCR judge erred by denying the

State's motion to dismiss respondent's PCR application as successive. We

disagree.





A successive application is one that raises grounds not raised in

a prior application, raises grounds previously heard and determined, or

raises grounds waived in prior proceedings. S.C. Code Ann. § 17-27-90 (1976

& Supp. 1997). Successive applications are disfavored and the applicant has

the burden to establish that any new ground raised in a subsequent

application could not have been raised by him in a previous application.

Arnold v. State, 309 S.C. 157, 420 S.E.2d 834 (1992), cert. denied, 507 U.S.

927, 113 S.Ct. 1302, 122 L.Ed.2d 691 (1993); Aice v. State, 305 S.C. 448, 409

S.E.2d 392 (1991); Foxworth v. State, 275 S.C. 615~ 274 S.E.2d 415 (1981).

This Court must affirm the findings of the PCR court if they are supported

by any evidence of probative value in the record. Webb v. State, 281 S.C.

237, 314 S.E.2d 819 (1984).





We find respondent's claims concerning parole eligibility are not

successive. Respondent learned he was ineligible for parole on October 26,

1995, and within a month he filed the current PCR application. He could not

have raised this claim in a previous PCR application because he did not

know of the claim until October 26, 1995.







We further find the PCR judge's order denying the State's motion

to dismiss respondent's application as successive is supported by evidence of

probative value. See Webb v. State, supra.





II. Sentence Structure





The State also argues the PCR judge erred in ordering that

respondent's sentence be served in a particular sequence. We disagree.





The PCR judge found the sentencing judge did not order that the



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TILLEY v. STATE





prison terms of life, eighteen years, and five years be served in that

sequence, only that they be served consecutively. The PCR judge ordered

respondent's sentence be served in a way that corrects the Parole Board's

interpretation of his sentence. Pursuant to the change, respondent serves

his sentence as follows:



(1) five (5) years for possession of a weapon

during the commission of a violent crime, then he

shall serve



(2) eighteen (18) years for first degree criminal

sexual conduct, then he shall serve



(3) life for kidnapping.





By setting out the sequence by which respondent will serve his

prison terms, respondent may become eligible for parole in the future. Such

a correction is merely a matter of placement and does not disregard the

original sentence that the terms be served consecutively.





S.C. Code Ann.§ 17-27-80 (1976 & Supp. 1997) provides that if

the PCR judge finds in favor of the applicant, the PCR judge shall enter an

appropriate order with respect to the conviction or sentence in the former

proceedings and any supplementary orders as to correction of sentence.







The PCR judge found that the Parole Board has interpreted

respondent's sentence to imprison him for life with no chance for parole, even

though the sentencing judge merely ordered the sentences be served

consecutively. The Parole Board's interpretation contravenes the intent of

the sentencing judge because it appears the sentencing judge did not intend

for respondent's prison terms to be without parole.





We agree with the PCR judge's finding that the trial judge did

not intend respondent's sentences to be served in the order the Parole Board

has established. The PCR judge correctly established the sequence in which

respondent's sentences would be served, so that respondent may be parole





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TILLEY v. STATE





eligible sometime in the future. See § 17-27-80.





AFFIRMED.





Burnett, A.J., not participating,





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