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2004-UP-484 - State v. Sibert

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.

Ernest Berry Sibert, Appellant.


Appeal From Greenville County
 Charles B. Simmons, Jr., Special Circuit Court Judge


Unpublished Opinion No. 2004-UP-484   
Submitted September 15, 2004 – Filed September 20, 2004


AFFIRMED IN PART, VACATED IN PART, AND REMANDED


Acting Chief Attorney Joseph L. Savitz, III, 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 Robert M. Ariail, of Greenville, for Respondent.

PER CURIAM:   Ernest Sibert appeals his guilty pleas and an order terminating his participation in drug court, arguing his pleas were involuntary and the trial court erred by terminating him from drug court.  We affirm in part, vacate in part, and remand. [1]

FACTS

On February 19, 2001, Sibert pled guilty to 2nd degree burglary; distribution of crack, 3rd offense; and possession of crack, 3rd offense.  Sibert was sentenced to 15 years for burglary and distribution of crack, and 10 years for possession of crack, all suspended upon his entry into and completion of the drug court program. 

Sibert entered into the drug court program on February 19, 2001.  On May 16, 2002, the State sought to have Sibert’s drug court participation terminated for violating numerous conditions of drug court: in April 2001 he made a change in annual employment and was sanctioned to visit an alcohol recovery center; in September 2001 he failed to pay his fees and was sanctioned to 8 hours of community service; in October 2001 he twice failed to pay his fees again and was sanctioned with community service and weekend duty in the detention center; and in December 2001 he quit his job and was sanctioned to 16 hours of community service. Additionally, while enrolled in drug court, Sibert was indicted for 1st degree burglary, assault and battery of a high and aggravated nature, and possession of heroin.  Furthermore, Sibert was served with two warrants for trafficking while he was incarcerated.

In his defense, Sibert claimed he only missed one of his appointments; he had not failed any of his drug tests while he was enrolled in drug court; and he could not pay his weekly fees because he was only getting paid every two weeks. 

During the May 16, 2002 termination hearing, Sibert pleaded guilty to 2nd degree burglary; assault and battery of a high and aggravated nature; possession of heroin; possession with intent to distribute within a half mile of a school; possession with intent to distribute crack cocaine, 3rd offense; distribution of crack, 3rd offense; and distribution of crack within a half mile of a park. 

The trial court terminated Sibert’s participation in drug court and sentenced Sibert to concurrent sentences of 10 years on all charges with the exception of 15 years for distribution of crack, 3rd offense, and 5 years for possession of heroin.

LAW/ANALYSIS

I.  Sibert argues the trial court erred in terminating his participation in drug court.  We disagree.

“The nature of the inquiry and extent of the investigation to be conducted by the [trial court] in determining whether the condition of a suspended sentence has been violated are matters that rest in the sound discretion of that court.”  State v. Miller, 122 S.C. 468, 474-475, 115 S.E. 742, 745 (1923) (citation omitted).  “[T]he authority of the [trial court] to revoke such suspension of sentence may not be capriciously or arbitrarily exercised, but should always be predicated upon an evidentiary showing of fact tending to establish violation of the conditions.”  Id. 

Our scope of review is confined to the correction of errors of law, unless it appears the trial court was influenced or controlled by some erroneous view of the law, was wholly without evidence to support it, or amounted to a manifest abuse of discretion.  Id.  Otherwise, a finding of fact by the trial court as to a breach of the conditions of a suspended sentence is final.  Id.          

The State presented evidence that Sibert missed a case management appointment, was repeatedly late paying his required fees, failed to remain employed, and was rearrested on multiple charges, including possession of heroin.  Additionally, while Sibert was incarcerated for these crimes, he was served warrants for drug trafficking.  Because there was sufficient evidence for the trial court to determine that Sibert violated the conditions of drug court, the court did not abuse its discretion in terminating Sibert’s participation in drug court.   

II.  Sibert contends his guilty pleas did not comply with the standards set forth in Boykin v. Alabama, 395 U.S. 238 (1969); however, Sibert did not object to the circuit court’s accepting his guilty plea, nor did he assert that his plea was involuntarily or unknowingly given.  Thus, the issue is not preserved for appellate review.  Holy Loch Distribs., Inc. v. Hitchcock, 340 S.C. 20, 24, 531 S.E.2d 282, 284 (2000) (“In order to preserve an issue for appellate review, the issue must have been raised to and ruled upon by the trial court.”).

III.  Sibert also claims that two of his pleas should be vacated because he did not exercise a written waiver of presentment to the grand jury.  We agree.

“By their plain language, [South Carolina Code sections 17-23-130 and 140 (2003)] make a written waiver of presentment of indictments not presented to a grand jury mandatory before the trial judge can accept the plea. We therefore hold appellant’s failure to properly execute the waivers renders the pleas invalid.”  Summerall v. State, 278 S.C. 255, 256, 294 S.E.2d 344, 344 (1982).

Thus, the pleas on the two indictments not presented to the grand jury, 2002-GS-23-2852 and 2853, are vacated and the case is remanded for further proceedings consistent with this opinion.  The pleas on the remaining indictment numbers are affirmed. 

AFFIRMED IN PART, VACATED IN PART, and REMANDED.

STILWELL, BEATTY, and SHORT, JJ., concur.


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