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2004-UP-566 - State v. Tucker

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.

Thomas Mark Tucker,        Appellant.


Appeal From Greenville County
Edward W. Miller, Circuit Court Judge


Unpublished Opinion No. 2004-UP-566
Submitted November 1, 2004 – Filed November 15, 2004


AFFIRMED


Jeffrey Falkner Wilkes, of Greenville, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General David Spencer, all of Columbia; and Solicitor Robert M. Ariail, of Greenville, for Respondent.

PER CURIAM:  Thomas Mark Tucker (Tucker) appeals his conviction following a guilty plea.  He argues that at the plea hearing he maintained he acted in self-defense, and, therefore, the trial court should not have entered a plea of guilty.  We affirm. [1]

FACTS

Tucker was indicted by a Greenville County grand jury for criminal domestic violence of a high and aggravated nature.  On September 27, 2002, Tucker struck his live-in girlfriend, Christy Rocket (Rocket), several times with his fist.  She suffered facial fractures because of the incident and was taken to a hospital in an ambulance where she underwent emergency surgery.  

On July 10, 2003, Tucker appeared before the trial court and was represented by his attorney, Mr. Paschal.  The following colloquy took place between Tucker and the court:

THE COURT:  Now, that—and I understand you want to tender a plea to criminal domestic violence of a high and aggravated nature, and that carries up to ten years in prison.

Do you understand that?

DEFENDANT TUCKER:  Yes, sir.

THE COURT:  All right.  Understanding the nature of the charges against you and the maximum possible punishment, how do you wish to plead?

DEFENDANT TUCKER:  Guilty.

THE COURT:  Now, has anybody forced you, coerced you, threatened you, or promised you anything in any way to get you to enter a plea of guilty?

DEFENDANT TUCKER:  No, sir.

THE COURT:  And are you doing it freely and voluntarily?

DEFENDANT TUCKER: Yes, sir.

THE COURT:  Okay.  Do you understand that you have an absolute right to a trial by jury where you would be presumed innocent unless and until the Government could prove you guilty beyond any reasonable doubt of each and every element of the offense that you’re charged with? 

DEFENDANT TUCKER:  Yes, sir.

THE COURT:  You have a right to confront and cross-examine the witnesses and the evidence against you.  You’d have a right to compel in court all relevant and competent evidence in your defense, or you could remain silent and your silence cannot be held against you.  You can never be compelled to incriminate yourself in a court of law in this country.

Do you understand all of those rights?

DEFENDANT TUCKER:  Yes, sir.

THE COURT:  Do you want to waive and give up those rights and plead guilty?

DEFENDANT TUCKER:  Yes, sir.

THE COURT:  Are you guilty?

DEFENDANT TUCKER:  Uh, yes, sir.

The State recited the facts of the case, alleging that Rocket was Tucker’s live-in girlfriend and describing the altercation that led to Tucker’s indictment.  The following exchange then took place:

THE COURT:  All right.  Mr. Tucker, you’ve heard the recitation of the facts that the State believes they could prove at trial.

I want to ask you if you agree or disagree with that?

DEFENDANT TUCKER:  I don’t fully agree, no, sir.

THE COURT:  All right.  If you would, tell me your version of the facts.

DEFENDANT TUCKER:  I wasn’t really living with her.  The reason we had the fuss to start with is I was going home that night.  She didn’t want me to leave, chased me out to the car, and even going to the extent of getting on the hood of the car so I couldn’t leave, took my keys from me.

I went back in the house with her trying to get my keys back.  It turned into an argument and ended up in the bedroom arguing over trying to get the keys back still.  All this, you know, to go home. 

And then the only reason I hit her is she hit me three times with an iron that was plugged up first.

THE COURT:  I’m sorry.  Hit you three times with an iron?  I didn’t hear that.

DEFENDANT TUCKER:  Yeah, three times.  It was plugged up.  The first time was in the elbow, and then once around my forearm, I’ve got a scar there still, and once on the side of the head.  

And, at that point, that’s when I just—actually, when I hit, I had my eyes shut and everything.  I just swung to get her off of me.  I don’t recall her being unconscious at all.  I looked at her.  I said, “Are you okay?”  I said, “I’m sorry.”

I took her to the bathroom and got a towel.  There was no blood in the bedroom.  I actually called 911 for her.  I went with her to the hospital.  I stayed there all night with her until 7:00 that morning. 

The court next addressed Tucker’s claim that he was not living with Rocket when the incident took place. 

THE COURT:  This is a guilty plea.

DEFENDANT TUCKER:  Right.

THE COURT:  And one of the—and, as I told you, the State has got to prove beyond a reasonable doubt each of the elements of the offense that you’re charged with.

DEFENDANT TUCKER:  Right.

THE COURT:  And that is an essential element of the charge.  So if it is your position that you are not a household member with the alleged victim in this case, then I’m not going to accept your guilty plea.

If you don’t feel that you were living there, then this is not criminal domestic violence.

DEFENDANT TUCKER:  Well, all I’m—the whole story is she came down from—she lived in North Carolina.  She came down.  She stayed at our house, my parents.  I live at home still now.  She stayed with my parents until she could find a place to live.

My dad actually helped her find that house.  It was a friend of his that rented it.  And I had even told her, I was like, you know, I said, I’ll help you some with money, whatever.  And I had stayed there some, but not to the point of living there.  I lived at home.  Work—if I had to go to work the next day, I would go home.

MR. PASCHAL:  But you had clothes and –

DEFENDANT TUCKER:  I had a few clothes there.  I would change sometimes when I went there after work.  But to say I lived there is not fully true. 

 . . . .

THE COURT:  But you have described what might be construed as a self-defense argument.  And I want to tell you that if you enter this guilty plea and I accept it, that whatever defenses you may have, you waive and give up the right to present those.  That doesn’t say you can’t present that information as mitigation.

But just so you understand that if you have any question as to the—whether or not you have a defense in this matter, if you plead and I accept it, you give up your right to use that defense. 

Do you understand that?

DEFENDANT TUCKER:  Right. 

Subsequently, Tucker admitted that at times he stayed with his parents while at other times he stayed with Rocket.  After “finding that he was, in fact, a household member,” the court addressed the possibility of a self-defense claim:

THE COURT:  How about the self-defense, Mr. Paschal?

MR. PASCHAL:  Your Honor, I think you asked him about that and I think he realizes that, but he’s not saying that he’s—

THE COURT:  All right.  Well, I’ll accept the plea as being knowingly, intelligently, and voluntarily made with the advice of a very competent attorney with whom he states he’s well satisfied, and there is a factual basis for the plea.

On appeal, Tucker argues (1) the trial court should not have entered a guilty plea because Tucker maintained that he acted in self-defense, and (2) the court failed to conduct a sufficient inquiry under. North Carolina v. Alford, 400 U.S. 25 (1970). 

LAW/ANALYSIS

I.  Self-Defense

First, Tucker argues the trial court erred in accepting his plea because he maintained that he acted in self-defense.  We disagree. 

Initially, this allegation is not properly before this Court on direct appeal since the alleged error was not raised below.  In the Interest of Antonio H., 324 S.C. 120, 477 S.E.2d 713 (1996) (proper avenue in which to challenge guilty plea which is not objected to at time of its entry is through post-conviction relief); State v. Williams, 303 S.C. 410, 401 S.E.2d 168 (1991) (defendant must object at first opportunity to preserve issue for appellate review; alleged error must be raised to and ruled on by trial judge); State v. McKinney, 278 S.C. 107, 292 S.E.2d 598 (1982) (absent timely objection at plea proceeding, unknowing and involuntary nature of guilty plea can be attacked only through more appropriate channel of post-conviction relief).

Moreover, as to the merits, we disagree with Tucker’s claim that he did not admit culpability.  The trial court thoroughly informed Tucker of his various constitutional rights.  Tucker indicated he understood his rights and that he wanted to give up those rights and plead guilty:

THE COURT:  Do you want to waive and give up those rights and plead guilty?

DEFENDANT TUCKER:  Yes, sir.

THE COURT:  Are you guilty?

DEFENDANT TUCKER:  Uh, yes, sir. 

If Tucker felt that he was not guilty, or that he wanted to assert a defense, he should not have admitted guilt, and he should not have entered a guilty plea. 

Further, the trial court specifically stated that “you have described what might be construed as a self-defense argument” and informed Tucker that by pleading guilty, he waived any defenses that he may have had.  Again, Tucker indicated that he understood.  Consequently, we are convinced that Tucker entered a plea of guilty and waived any potential claim of self-defense.  See State v. Thomason, 341 S.C. 524, 534 S.E.2d 708 (Ct. App. 2000) (finding a guilty plea admits all elements of the offense charged, leaves open for review only the sufficiency of the indictment, and waives all other defenses).

II.  North Carolina v. Alford

Next, Tucker argues that due to the absence of an admission of culpability, the court failed to conduct sufficient inquiry under North Carolina v. Alford, 400 U.S. 25 (1970).  We disagree.

As with the self-defense argument, this argument is not properly before this Court because Tucker did not raise an objection at the plea hearing.  In the Interest of Antonio H., 324 S.C. 120, 477 S.E.2d 713 (1996) (proper avenue in which to challenge guilty plea which is not objected to at time of its entry is through post-conviction relief); State v. Williams, 303 S.C. 410, 401 S.E.2d 168 (1991) (defendant must object at first opportunity to preserve issue for appellate review; alleged error must be raised to and ruled on by trial judge); State v. McKinney, 278 S.C. 107, 292 S.E.2d 598 (1982) (absent timely objection at plea proceeding, unknowing and involuntary nature of guilty plea can be attacked only through more appropriate channel of post-conviction relief).

Nonetheless, we find this argument without merit.  Tucker did admit culpability, and he entered a guilty plea.  Therefore, the court had no reason to alternatively accept the plea under Alford; that case has no application here. 

CONCLUSION

Based on the foregoing, the decision of the circuit court is

AFFIRMED.

ANDERSON, STILWELL, and SHORT, JJ., concur.


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