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2004-UP-145 - State v. Hall
THE STATE OF SOUTH CAROLINA

THIS OPINION HAS NO PRECEDENTAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State,        Respondent,

v.

Norma Patrick Hall,        Appellant.


Appeal From Dorchester County
Diane Schafer Goodstein, Circuit Court Judge


Unpublished Opinion No. 2004-UP-145
Submitted December 23, 2003 – Filed March 1, 2004


AFFIRMED


Assistant Appellate Defender Robert M. Dudek, Office of Appellate Defense, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, Assistant Attorney General David A. Spencer, all of Columbia; and Solicitor Walter M. Bailey, Jr., of Summerville, for Respondent.


PER CURIAM:  Norma Patrick Hall was charged with one count of homicide by child abuse, for which she entered a plea under North Carolina v. Alford, 400 U.S. 25 (1970).  She appeals her sentence, arguing the circuit court failed to consider her diminished capacity due to drug use as a mitigating factor during sentencing.  We affirm.

FACTS/PROCEDURAL HISTORY

In April 2002, Hall was indicted for one count of homicide by child abuse in connection with the death of her six-month old son, Harley Benjamin Hall.  She entered into an Alford plea agreement and was sentenced to forty years in prison.  During sentencing, the circuit court refused to consider Hall’s diminished mental capacity resulting from drug use, stating “The mitigation that has been forwarded for the Court’s consideration has been that of drug abuse.  As you all know, diminished capacity is no defense in South Carolina, and in this instance I fail to find it is a mitigating circumstance.”  This appeal follows.

LAW/ANALYSIS

Hall argues the circuit court erred as a matter of law by failing to consider diminished capacity resulting from her drug use during her sentencing phase.  In fact, the trial judge clearly considered that diminished capacity resulting from drug abuse may be a mitigating factor, but determined it was not so in the present case.  Moreover, Hall did not object when the circuit court imposed its sentence.  Thus, the issue of the sentence is not preserved for our review.  State v. Johnston, 333 S.C. 459, 462, 510 S.E.2d 423, 425 (1999) (stating that a challenge to sentencing must be raised at trial, or the issue will not be preserved for appellate review).

AFFIRMED.

GOOLSBY, HOWARD, and KITTREDGE, JJ., concur.