THE STATE OF SOUTH CAROLINA
In The Supreme Court
Arlando Gaines, Respondent,
State of South Carolina, Petitioner.
ON WRIT OF CERTIORARI
Appeal From Dorchester County
Luke N., Brown, Trial Judge
A. Victor Rawl, Post-Conviction Judge
Opinion No. 24956
Submitted April 21, 1999 - Filed June 21, 1999
Attorney General Charles M. Condon, Chief Deputy
Attorney General John W. McIntosh, Assistant
Deputy Attorney General Teresa A. Knox, Assistant
Attorney General Matthew M. McGuire, all of
Columbia, for petitioner.
Chief Attorney Daniel T. Stacey, of South Carolina
Office of Appellate Defense, of Columbia, for
TOAL, A.J.: The State has petitioned for a writ of certiorari,
contesting the Post-Conviction Relief ("PCR") court's grant of relief to
Arlando Gaines ("Defendant") on the grounds that two of his three guilty
pleas were not entered "voluntarily." We reverse the PCR court and
reinstate Defendant's two guilty pleas.
The State indicted Defendant in November 1994 for two, counts of
burglary second degree and one, count burglary third degree. On November
28, 1994, Defendant pled guilty to all three indictments. Defendant entered
a plea of guilty to one count of second degree burglary and entered guilty
pleas for the other burglary second charge and the burglary third charge
under the case North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27
L.Ed.2d 162 (1970).1 An attorney from the public defender's office, Mark
Wise, acted as Defendant's attorney at the hearing. Defendant did not
directly appeal any of his convictions.
At the hearing, the trial judge made several inquires regarding the
guilty pleas including:
(1) Whether Wise-had explained the charges to Defendant;
(2) Whether Wise believed Defendant understood the charges pending
(3) Whether Defendant understood the amount of time he could be
sentenced to serve as a result of the charges;
(4) Whether Defendant had been promised anything besides the
Solicitor's sentencing recommendation for his pleas;
(5) Whether Defendant understood he had the right to have a jury trial
and could present witnesses and have his attorney cross-examine the State's
consent voluntarily, knowingly, and understandingly to the imposition of a
prison sentence although unwilling to admit culpability, or even if the guilty
plea contains a protestation of innocence, when the accused intelligently
concludes that his interests require a guilty plea and the evidence strongly
supports his guilt of the offense charged.
(6) Whether Defendant understood he did not have to testify at trial
and his silence could not be held against him by the jury;
(7) Whether Defendant had any complaints about the police officers or
prosecutors in the case;
(8) Whether Defendant was satisfied with the services of his attorney;
(9) Whether Defendant was abusing any substance that would prevent
him from understanding the proceedings;
The trial judge explained the concept of an Alford plea and again
reviewed the amount of time Defendant could receive under the pleas. At
the end of this extended colloquy,, the following exchange took place between
the trial court and Defendant:
THE COURT: Knowing all of this, are you pleading guilty freely
DEFENDANT: Yes, sir.
The trial court then established a factual basis for each of the pleas. In
addressing the factual basis of the non-Alford plea, the trial court stated:
THE COURT: All right, Solicitor, I accept the [non-Alford] plea , I
think it is free and voluntary. He has knowingly
waived his rights to a jury trial on that one. And let
me hear the facts on the others and I will give you a
ruling on that. (Emphasis added)
The Solicitor then proceeded to give an extended description of the factual
basis for the incidents alleged under the Alford pleas. The Solicitor also gave
a summation of Defendant's extensive criminal history and the trial judge
reviewed that history with Defendant in detail. The trial court also heard
from Defendant's wife who testified for her husband in hopes of reducing his
sentence. At the conclusion of the wife's testimony, the trial court sentenced
Defendant to ten years in prison plus five years probation.
In December 1995, Defendant filed an application for PCR alleging: (1)
ineffective assistance of counsel; and (2) prejudicial error on behalf of the
prosecution. The PCR judge heard oral arguments and on February 16,
1997, issued an order granting relief to Defendant on the two Alford guilty
pleas. The PCR judge determined that Defendant was not entitled to relief
as a result of ineffective assistance of counsel. However, the PCR judge
found that the trial judge failed to make the specific finding of voluntariness
following the factual descriptions of the Alford pleas as he had stated he
would. Based on the trial court's failure to state expressly that it found the
non-Alford pleas voluntary, the PCR court set aside those two guilty pleas.
The PCR order upheld Defendant's guilty plea entered on the other second
degree burglary charge.
The State argues that the PCR judge erred in finding the two Alford
pleas were involuntary. We agree.
"If the record reflects, as it does here, that the trial court has assured
itself that the plea was voluntary and intelligently entered with full
knowledge of the nature of the offense, then lack of precise language in the
record expressing these considerations is not of itself a valid reason for
reversal." State v. Lambert, 266 S.C. 574, 580, 225 S.E.2d 340, 342 (1976).
In the current case, the trial judge satisfied all of the necessary elements to
establish the Alford guilty pleas as voluntary. The PCR judge relied on the
trial judge's statement that he would make an express finding as to the
voluntariness of the Alford pleas and then failed to do so as the sole reason
for setting aside those guilty pleas.
The test for a valid guilty plea established by Boykin v. Alabama, 395
U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) is whether the record
establishes that a guilty plea was voluntarily and understandingly made.
Generally, "the [court] must be certain that the defendant understands the
charge and the consequences of the plea and that the record indicates a
factual basis for the plea." In State v. Armstrong, 263 S.C. 594, 211 S.E.2d
889 (1975), this Court also acknowledged that the "court's warning should
include an explanation of the defendant's waiver of constitutional rights and
a realistic picture of all sentencing possibilities." Id. at 598, 211 S.E.2d at
891. To ensure that the defendant understands, the trial judge usually
questions the defendant about the facts surrounding the crime and the
punishment which could be imposed. See, e.g., State v. Lambert, 266 S.C.
5742 225 S.E.2d 340 (1976). It is clear from the record that the trial judge
met all requirements to enter a valid guilty plea, even if he did not follow
through with his promise to explicitly rule on their voluntariness.
The trial judge satisfied all of the necessary requirements when he
accepted the two Alford pleas from Defendant. A review of the record shows
that the judge questioned Defendant extensively about the voluntariness of
both the non-Alford and Alford pleas. The judge discussed the possible
sentences under all the charges and made no distinction between them until
he established the factual basis for each plea. Following the factual basis for
both the non-Alford and Alford pleas, the trial judge sentenced Defendant for
all three charges. The clear implication is that the trial judge found the
pleas voluntary or he would not have entered sentences for all three offenses.
That the judge failed to state expressly his finding as to the voluntariness of
the Alford pleas does not defeat the fact that the record itself reveals a
The order of the PCR court is REVERSED and Defendant's two Alford
pleas are reinstated.
FINNEY, C.J., MOORE, WALLER, and BURNETT, JJ., concur.