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2005-UP-110 - State v. Dudley

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.

Brenda Tart Dudley,        Appellant.


Appeal From Florence County
B. Hicks Harwell, Jr., Circuit Court Judge


Unpublished Opinion No. 2005-UP-110
Submitted December 1, 2004 – Filed February 11, 2005


AFFIRMED


Louis S. Moore, of Charleston, for Appellant.

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

PER CURIAM:  Brenda Tart Dudley was convicted of shoplifting and sentenced to ten years imprisonment, suspended upon the service of four years and five years probation.  She argues on appeal that the trial judge erred in:  (1) repeatedly interrupting counsel during the trial, expressing bias, and thereby denying her a fair trial; and (2) giving her a sentence disproportionate to the offense.  We affirm. [1]

FACTS

On August 7, 2001, Ronald Lyles, owner of an Ace Hardware store, observed Dudley and a male removing the plastic packaging from expensive pliers and placing the pliers in the male’s clothing.  The pliers had been removed from their display several aisles over.  Dudley and the male separated and left the store.  Lyles chased the male in the parking lot until he disappeared down an alley.  Lyles’ brother questioned Dudley until police arrived.  Dudley denied taking anything from the store.  Dudley gave police the name of a man she was with, but the man was never taken into custody.  The pliers were never recovered.  Dudley was charged with shoplifting. 

After electing to proceed in a bench trial, Dudley was convicted.  She appeals. 

LAW/ANALYSIS

I. Questioning by the Court

Dudley argues she was denied her right to a fair trial because the trial judge interrupted counsel to ask questions of the witnesses and the judge expressed a bias with regard to shoplifting charges.  We disagree.

Prior to the bench trial, the trial judge expounded on the problem of shoplifting in society.  The judge informed Dudley that if she was convicted, he would put her in jail.  Throughout the trial, the judge would interrupt counsel for both Dudley and the State to question witnesses, including Dudley.  The judge denied Dudley’s motion for a directed verdict, stating that there was no question that Dudley knew the male suspect, that she was a confederate of the male suspect, and, citing the store-owner’s testimony, that she knew what he was placing in his clothing.  However, the judge went on to address the requirements for granting a motion for directed verdict and to state that he had not yet weighed the facts and would not determine the matter until he had heard the entire case. 

Although Dudley argues the trial judge was biased against those charged with shoplifting and that the judge indicated by his questions that he had deliberated her guilt prior to the close of the case, this issue is not properly before this court.  Dudley did not object to the judge’s pre-trial statements, to his interruptions, or to his comments during the directed verdict motion.  She never complained to the trial judge that his actions were denying her of a fair trial, she failed to raise the issue of bias before the judge, and she failed to request that the judge recuse himself.  Accordingly, she failed to preserve her complaint for appellate review.  State v. Hicks, 330 S.C. 207, 216, 499 S.E.2d 209, 214 (1998) (holding that issues not raised to and ruled upon by the trial court are not preserved for appellate review); Bryan v. Bryan, 296 S.C. 305, 311, 372 S.E.2d 116, 120 (Ct. App. 1988) (holding that where a party failed to raise the issue of bias and failed to request recusal, the issue of judicial bias was waived on appeal).  As Dudley never complained about judge bias below, she cannot argue that issue on appeal. 

II. Disproportionate Sentence

Dudley argues her sentence was out of proportion with the severity of the crime, and thus her punishment was cruel and unusual.  We disagree.

Prior to trial, the judge informed Dudley that “if you’re convicted, I’m gone [sic] put you in jail.  I want you to know that ahead of time.  If you convicted [sic] and I find you guilty, I’m gone [sic] put you in jail because you have used the system and you lost.”  The trial judge also warned Dudley that he had previously given a man convicted of shoplifting a ten-year sentence. [2]   After finding Dudley guilty of the crime, the trial judge considered her sentence.  Noting her long criminal history [3] and after hearing from two of her children, the trial judge asked Dudley to acknowledge her involvement in the crime and he would consider that a mitigating circumstance in sentencing.  When she again denied involvement, the judge gave her the weekend to consider the matter further.  When the matter was reconvened, Dudley apologized to the judge, but she stated she was not “denying or acknowledging” her involvement in the crime.  The trial judge sentenced her to ten years, suspended upon the service of four years and five years probation. 

We note that this issue is not properly before us.  Dudley did not object to the sentence or complain to the judge that the sentence was disproportionate to the severity of the crime.  Accordingly, this issue is not preserved for appellate review.  Hicks, 330 S.C. at 216, 499 S.E.2d at 214; State v. Shumate, 276 S.C. 46, 47, 275 S.E.2d 288, 288 (1981) (holding that a failure to object to a sentence at the time of sentencing precludes appellate review of the matter). 

In any event, a trial judge has broad discretion in giving sentences within the statutory limits.  Brooks v. State, 325 S.C. 269, 271-72, 481 S.E.2d 712, 713 (1997).  “A sentence is not excessive if it is within statutory limitations and there are no facts supporting an allegation of prejudice against a defendant.”  Id. at 272, 481 S.E.2d at 713.  Dudley was convicted of her third shoplifting offense.  The sentence for a third offense shoplifting conviction is up to ten years imprisonment.  S.C. Code Ann. § 16-13-110 (2003) (defining shoplifting as a misdemeanor or felony, depending on the value of the property taken); S.C. Code Ann. § 16-1-57 (2003) (“A person convicted of an offense for which the term of imprisonment is contingent upon the value of the property involved must, upon conviction for a third or subsequent offense, be punished as prescribed for a Class E felony.”); S.C. Code Ann. § 16-1-20 (A)(5) (2003) (noting the punishment for a Class E felony is not to exceed ten years).  Thus, the sentence was clearly within the statutory mandates.  

“The cruel and unusual punishment clause requires the duration of a sentence not be grossly out of proportion with the severity of the crime.”  State v. Jones, 344 S.C. 48, 56, 543 S.E.2d 541, 545 (2001).  Three factors are considered in determining proportionality:  “(1) the gravity of the offense compared to the harshness of the penalty; (2) sentences imposed on other criminals in the same jurisdiction; and (3) sentences for the same crime in other jurisdictions.”  Id. 

Dudley points to two cases from this jurisdiction to support her argument that her sentence was disproportionate.  In State v. Timmons, 349 S.C. 389, 563 S.E.2d 657 (2002), the defendant was sentenced to eight years for his fifteenth shoplifting conviction and to two years for possession of cocaine.  The court affirmed the convictions and sentences, deciding only the issue of whether the trial court had subject matter jurisdiction to entertain the defendant’s plea to possession of cocaine.  Timmons, 349 S.C. at 394, 563 S.E.2d at 660.  Dudley also points to State v. Lewis, 325 S.C. 324, 478 S.E.2d 696 (Ct. App. 1996), in which a defendant with nearly twenty prior convictions, including four prior shoplifting convictions, was sentenced to three years for shoplifting.  This court affirmed his sentence, finding it was within the statutory maximum.  Lewis, 325 S.C. at 327, 478 S.E.2d at 698. 

We find Dudley’s sentence did not violate the cruel and usual punishment clause.  Her suspended sentence was within the statutory maximum.  Her sentence is not grossly disproportionate to the crime of third offense shoplifting.  Finally, her sentence was not grossly disproportionate to the sentences given to others convicted of shoplifting, as seen in Timmons and Lewis.  

CONCLUSION

Based on the foregoing, Dudley’s conviction and sentence are

AFFIRMED.

HUFF, KITTREDGE, and BEATTY, JJ., concur.


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

[2]   Although Dudley does not complain about this specific incident, we note that the trial judge seemed to indicate he would punish Dudley for exercising her right to a trial.  After informing Dudley of her right to a trial, the trial judge later said that if Dudley were convicted: “. . . I’m gone [sic] send you to jail for a lot longer time than I would if you were entering a plea because you’ve taken the time from the court when in your heart-of-hearts you know whether or not you’ve got a good defense or not.”  Dudley never objected to this statement at trial, and she does not complain about this issue now.  Although it is impermissible for a trial judge to consider the exercise of a constitutional right to a trial in sentencing, this issue is not preserved for our review.  Davis v. State, 336 S.C. 329, 333, 520 S.E.2d 801, 803 (1999) (holding it was impermissible for a sentencing court to consider the exercise of the right to trial in pronouncing sentence); State v. Hazel, 317 S.C. 368, 370, 453 S.E.2d 879, 880 (1995) (same). 

[3] Dudley had a prior criminal record that included two prior shoplifting convictions, involuntary manslaughter, food stamp fraud, simple possession of marijuana, receiving stolen goods, grand larceny, and giving a false statement upon attempting to purchase a weapon.