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2004-UP-461 - State v. Romero

THIS OPINION HAS NO PRECEDENTIAL 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.

Julian AB Romero, Appellant.


Appeal From Florence County
 Paul M. Burch, Circuit Court Judge


Unpublished Opinion No. 2004-UP-461
Submitted September 14, 2004 – Filed September 15, 2004


APPEAL DISMISSED


Assistant Appellate Defender Aileen P. Clare, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, all of Columbia; and Solicitor Edgar Lewis Clements, III, of Florence, for Respondent.

PER CURIAM:  Julian Ab Romero pled guilty to common law robbery.  The trial court sentenced him to imprisonment for thirteen and half years.  Romero appeals, arguing his sentence is so disproportionate to the offense it constitutes unconstitutional cruel and unusual punishment.  On appeal, Romero’s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting the appeal is without legal merit sufficient to warrant a new trial and requesting permission to withdraw from further representation of Romero.  Romero has not filed a pro se brief.   We find Romero’s appeal to be without merit.

Section 16-11-325 of the South Carolina Code states, upon conviction of common law robbery, “a person must be imprisoned not more than fifteen years.”  S.C. Code Ann. § 16-11-325 (2003).  Generally, if a statute fixing the punishment for an offense is not unconstitutional, a sentence within the limits prescribed by such statute will not be regarded as cruel and unusual.  State v. Kimbrough, 212 S.C. 348, 354, 46 S.E.2d 273, 275-76 (1948).  This presumption of validity places the heavy burden on an appellant of persuading this court that the sentence is without justification and “shocks the collective conscience of our society.”  Stockton v. Leeke, 269 S.C. 459, 237 S.E.2d 896 (1977).

Romero’s rather conclusory arguments fail to satisfy this hefty burden.  Although the victim’s property was eventually recovered, Romero used extreme violence to forcibly obtain the property.  Furthermore, he has an extensive prior record, including convictions for larceny, assault, DUI, aggravated sexual battery, and “lesser homicide.”  Despite these factors, the trial judge still did not give Romero the maximum sentence allowed by the statute (15 years).  There is no merit to Romero’s argument.

After a thorough review of the record and counsel’s brief pursuant to Anders and State v. Williams, 305 S.C. 116, 406 S.E.2d 357 (1991), we dismiss Romero’s appeal and grant counsel’s motion to be relieved. [1]

APPEAL DISMISSED. [2]

GOOLSBY, ANDERSON, and WILLIAMS, JJ., concur.


[1] Six months prior to the hearing, a trial judge ordered a psychological evaluation of Romero pursuant to S.C. Code Ann. § 44-23-410 (2002), specifically to the issue of his capacity to stand trial.  Although the order calling for this evaluation is included in Romero’s record on appeal, no written record or mention of the evaluation’s results or a subsequent capacity hearing is included.  Therefore, we have no way of knowing whether or not Romero was found competent to stand trial.  Romero’s counsel vaguely alluded to Romero’s mental capacity before the trial court, but did not adequately raise the issue by objection when allowing Romero to enter his guilty plea.  Although troubled by the lack of any mention of the evaluation’s results in the record, the proper avenue in which to challenge a guilty plea which is not objected to at the time of its entry is not on appeal, but through post conviction relief.  In the interest of Antonio H., 324 S.C. 120, 122, 477 S.E.2d 713, 714 (1996).

[2] We decide this case without oral argument pursuant to Rule 215, SCACR.