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24901 - Scott v. State

Davis Adv. Sh. No. 7
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court



Clifton David Scott, Respondent,

v.

State of South Carolina, Petitioner.



ON WRIT OF CERTIORARI



Appeal From Greenville County

Hubert E. Long, Trial Judge

Thomas L. Hughston, Jr., Post-Conviction Judge



Opinion No. 24901

Submitted December 16, 1998 - Filed February 16, 1999



AFFIRMED





Attorney General Charles M. Condon, Deputy

Attorney General John W. McIntosh, Assistant

Deputy Attorney General Teresa A. Knox, all of

Columbia, for petitioner.



Howard W. Paschal, Jr., of Greenville, for respondent.



WALLER, A.J.: Petitioner (the State) petitions the Court to reverse

the order of the post-conviction relief (PCR) judge granting relief to respondent. We

affirm.

p.4


SCOTT v. STATE





FACTS



A jury in 1989 convicted respondent of trafficking in and

transportation of 23.17 grams of cocaine. A circuit judge sentenced respondent

to thirty years in prison and a $50,000 fine on the trafficking conviction, and

one year, concurrent, on the transportation conviction. The judge, without

objection from respondent's trial attorney, sentenced respondent as a second

offender because he had a 1987 misdemeanor conviction for simple possession

of marijuana. The convictions and sentences were affirmed. State v. Scott, 303

S.C. 360, 400 S.E.2d 784 (Ct. App. 1991).





Respondent filed a PCR application dated January 2, 1995. At a

PCR hearing in February 1997, respondent testified he was arrested on

Christmas Day in 1987 and charged with the possession of a single joint of

marijuana. He was released almost immediately on a personal recognizance

bond. The only court record either respondent or the State could find on the

1987 case was a copy of respondent's criminal record showing that he "forf $218"

on the marijuana charge.





The PCR judge concluded the disposition of the 1987 marijuana

charge was a bond forfeiture -- not a conviction -- because S.C. Code Ann. § 44-

53-470 (1985)1 does not define "conviction" to include a bond forfeiture. The

judge reasoned that by defining a bond forfeiture as the equivalent of a

conviction in other second offense statutes, such as statutes prohibiting driving

under the influence of alcohol (DUI), the Legislature must have intentionally

omitted bond forfeitures from the definition of second offense in Section 44-53-

470. Consequently, the judge vacated respondent's sentence and ordered that

he be resentenced as a first offender on the 1989 cocaine trafficking charge.


1 Section 44-53-470 states:

An offense is considered a second or subsequent offense, if, prior to

his conviction of the offense, the offender has at any time been

convicted under this article or under any State or Federal, statute

relating to narcotic drugs, marihuana, depressant, stimulant, or

hallucinogenic drugs.

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SCOTT v. STATE





ISSUE





Did the PCR judge err in holding that respondent was

improperly sentenced for a second offense because his

prior 1987 marijuana case did not result in a

conviction?





DISCUSSION



The State contends the PCR judge erred in granting respondent's

application because respondent was convicted of simple possession of marijuana

in1987. It was a conviction -- not a bond forfeiture -- and the penalty for that

conviction was the forfeiture of his bond. Therefore, the State argues,

respondent properly was sentenced as a second offender in the 1989 cocaine

trafficking case. The State also contends respondent has failed to meet his

burden of proof. We disagree.





"To establish a claim of ineffective assistance of trial counsel, a PCR

applicant has the burden of proving counsel's representation fell below an

objective standard of reasonableness and, but for counsel's errors, there is a

reasonable probability that the result at trial would have been different.... A

reasonable probability is a probability sufficient to undermine confidence in the

outcome of the trial." Johnson v. State, 325 S.C. 182, 186, 480 S.E.2d 733, 735

(1997) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984)). Thus, a PCR applicant must show both error and

prejudice to win relief in a PCR proceeding.





The burden is on the applicant in a post-conviction proceeding to

prove the allegations in his application. Butler v. State, 286 S.C. 441, 334

S.E.2d 813 (1985). An appellate court must affirm the PCR court's decision

when its findings are supported by any evidence Of probative value. Cherry v.

State, 300 S.C. 1152 386 S.E.2d 624 (1989). However, an appellate court will not

affirm the decision when it is not supported by any probative evidence. Holland

v. State, 322 S.C. 111, 470 S.E.2d 378 (1996).





A. ERROR



We agree with the PCR judge that respondent's 1987 marijuana

was a bond forfeiture, not a conviction. The only available court record shows

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SCOTT v. STATE





that respondent "forf $218" on the charge. A further indication that respondent

forfeited a bond is that $218 is the maximum bond forfeiture a magistrate may

confirm as a judgment. S.C. Code Ann. § 17-15-170 (Supp. 1997). The question,

then, is whether the trial judge was required to treat that bond forfeiture as a

conviction.





"In the interpretation of statutes, our sole function is to determine

and, within constitutional limits, give effect to the intention of the legislature,

with reference to the meaning of the language used and the subject matter and

purpose of the statute." State v. Ramsey, 311 S.C. 555, 561, 430 S.E.2d 511,

515 (1993). "A basic presumption exists that the legislature has knowledge of

previous legislation when later statutes are passed on a related subject."

Berkebile v. Outen, 311 S.C. 50, 53, 426 S.E.2d 760, 762 (1993); accord Bell v.

South Carolina State Highway Dept, 204 S.C. 462, 30 S.E.2d 65 (1944),

overruled on other arounds in McCall by Andrews v. Batson, 285 S.C. 243, 329

S.E.2d 741 (1985). Furthermore, penal statutes must be construed strictly

against the State in favor of the defendant. Williams v. State, 306 S.C. 89, 410

S.E.2d 563 (1991).





The Court of Appeals, in deciding that a bond forfeiture in a traffic

case may not be used as an admission or for impeachment purposes in a

subsequent civil case, distinguished a conviction or guilty plea from a bond

forfeiture.



A forfeiture by its very nature differs from a guilty plea

because it involves the failure of a person to act rather

than an affirmative act admitting wrongdoing. It may

also result from any of a variety of reasons, other than

the intention to either make an admission or imply one

by "silence," e.g., the cost of defense as well as the

indirect economic loss and inconvenience of a court

appearance as compared with the consequence of a

forfeiture.



Samuel v. Mouzon, 282 S.C. 616, 620, 320 S.E.2d 482, 485 (Ct. App. 1984).





Similarly, a Louisiana court stated in a defamation case that "[a]

conviction is a judicial determination of guilt. A forfeiture of bond is a decision



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SCOTT v. STATE





by the person charged not to appear for trial, thereby avoiding a judicial

determination of guilt or innocence." Hopkins v. Keith, 348 So.2d 999, 1002

(La. Ct. App. 1977) (affirming summary judgment for defendant newspaper

sued because story failed to fully distinguish between bond forfeiture and

conviction, a distinction that is unclear to much of the public). See also 8A

Am.Jur.2d Bail and Recognizance § 113 (1997) (bond forfeiture proceeding "does

not involve the guilt or innocence, conviction or acquittal, of any person . . . .

Rather, a bail bond forfeiture and the judgment thereon against a surety is a

civil action to enforce the surety's contract with the state"); 8 C.J.S. Bail §§ 5,

160-178 (1988) (discussing purpose and forfeiture of bail bond).





This Court has held that a bond forfeiture is equivalent to a

conviction when the Legislature has defined it as a conviction by statute. See

State v. Smith, 276 S.C. 494) 280 S.E.2d 200 (1981) (noting that statute makes

a bond forfeiture in a DUI case equivalent to a conviction); Southern Farm

Bureau Casualty Ins. Co. v. Ausborn, 249 S.C. 627, 636, 155 S.E.2d 902, 907

(1967) (concluding an insured made false statements on application by not

revealing bond forfeitures, which were defined as convictions under two

statutes); State v. Langford, 223 S.C. 20, 25, 73 S.E.2d 854, 856 (1953)

(explaining how Legislature closed a loophole in 1947 by defining a conviction

under DUI statutes to include bond forfeitures).2





We have found no case in South Carolina or elsewhere, and the

parties have cited none, in which a court explicitly declared that a bond

forfeiture is equivalent to a conviction, absent a statute declaring it to be a


2 Other states have reached the same conclusion. Eg., Fetters v. Degnan,

250 N.W.2d 25 (Iowa 1977) (bond forfeiture is equivalent to a conviction in DUI

case because lawmakers defined it as a conviction under DUI statutes); Bennett

v. Mississippi, 528 So.2d 815 (Miss. 1988) (same); Pryor v. David, 436 S.W.2d

3 (Mo. 1969) (same); City of Minot v. Mattern, 449 N.W.2d 560 (N.D. 1989)

(same); Virginia v. Brumfield, 295 S.E.2d 878 (Va. 1982) (same); In re Sparks,

212 S.E.2d 220 (N.C. Ct. App. 1975) (same); Illinois v. Harvey, 285 N.E.2d 179

(Ill. Ct. App. 1972) (same); see also Olim v. Mayberry, 524 P.2d 24 (Okla. 1974)

(upholding constitutionality of statute making bond forfeiture a conviction in

traffic offenses); Pigue v. Florida, 567 So.2d 530 (Fla. Dist. Ct. App. 1990)

(concluding it was error to assess sentencing points for a bond forfeiture where

sentencing rules did not define conviction to include a bond forfeiture).

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SCOTT v. STATE







conviction. The Legislature presumably was aware it had defined a conviction

to include bond forfeitures in other statutes.3 See Berkebile v. Outen, supra.





We conclude the Legislature did not intend for a bond forfeiture to

be the equivalent of a conviction under Section 44-53-470. We further conclude

the record contains probative evidence supporting the PCR judge's conclusion

that respondent's trial attorney erred in failing to challenge the trial judge's

decision to treat the 1987 marijuana bond forfeiture as a first offense.


3 Criminal statutes in which the Legislature appears to recognize the

distinction between a bond forfeiture and a conviction include: S.C. Code Ann.

§ 56-5-2940 (Supp. 1997) (prior offense includes conviction, guilty plea, nolo

contendere plea, or bond forfeiture in DUI case in South Carolina or any other

state); S.C. Code Ann. § 56-1-630(3) (1991) (defining bond forfeiture as a

conviction for purposes of reporting traffic convictions to other states); S.C. Code

Ann. § 56-1-1310 (1991) (defining "convicted" under statutes governing

provisional drivers' licenses to include conviction, bond forfeiture, guilty plea,

and nolo contendere plea); S.C. Code Ann. § 56-5-2780(B) (Supp. 1997)

(defendant guilty of passing stopped school bus if he is convicted, enters guilty

or nolo contendere plea, or forfeits bond); S.C. Code Ann. § 56-5-6220 (1991)

(entry of guilty plea, nolo contendere plea, or forfeiture of bond for violation of

any traffic law shall have same effect as a conviction); S.C. Code Ann. § 61-6-

4220 (Supp. 1997) (prior offense includes conviction, guilty plea, nolo contendere

plea, or bond forfeiture in alleged violation of any state or federal law relating

to sale and distribution of alcoholic liquors).



Licensing statutes in which the Legislature has defined a bond forfeiture

as the equivalent of a conviction include: S.C. Code Ann. § 23-6-440(B)(4)

(Supp. 1997) (licensing of law enforcement officers); S.C. Code Ann. § 40-15-

190(A)(2) (Supp. 1997) (licensing of dentists); S.C. Code Ann. § 40-37-220(2)

(1986) (licensing of optometrists); S.C. Code Ann. § 40-38-220(2) (1986)

(licensing of opticians); S.C. Code Ann. § 40-55-150(A)(2) (Supp. 1997) (licensing

of psychologists); S.C. Code Ann. § 40-61-90(2) (1986) (licensing of

environmental sanitarians); S.C. Code Ann. § 40-63-110(2) (Supp. 1997)

(licensing of social workers); S.C. Code Ann. § 40-69-140(24) (Supp. 1997)

(licensing of veterinarians); S.C. Code Ann. § 40-75-170(A)(2) (Supp. 1997)

(licensing of professional counselors).

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SCOTT v. STATE





B. PREJUDICE



The trial judge, treating the 1987 marijuana case as respondent's

first conviction, sentenced respondent as a second offender to thirty years in

prison and a $50,000 fine on the 1989 cocaine trafficking conviction. The

maximum sentence a defendant faces for a first offense under Section 44-53-

370(e) is ten years and a $25,000 fine.4 We conclude the record contains

probative evidence supporting the PCR judge's conclusion that respondent was

prejudiced by his trial attorney's error.





CONCLUSION



We affirm the PCR judge's decision and remand the case for

respondent to be resentenced as a first offender.



AFFIRMED.



FINNEY, C.J., TOAL, MOORE, and BURNETT, JJ., concur.


4 The Legislature increased the penalties in July 1988 for certain drug

trafficking convictions, including those applicable in this case. Act No. 565,

1988 Acts 4903. The same penalties remain in effect today. S.C. Code Ann. §

44-53-370(e)(2)(a) (Supp. 1997).

p.10