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2007-MO-060 - Drummond v. State

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 Supreme Court


Randy Drummond, Respondent

v.

State of South Carolina, Petitioner


ON WRIT OF CERTIORARI


Appeal From Greenville County
 Larry R. Patterson, Circuit Court Judge


Memorandum Opinion No.  2007-MO-060
Submitted September 20, 2007 – Filed October 22, 2007 


REVERSED


Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General Karen Ratigan, all of Columbia, for Petitioner.

Deputy Chief Attorney Wanda H. Carter, of South Carolina Commission on Indigent Defense, Division of Appellate Defense, of Columbia, for Respondent.


JUSTICE WALLER: In this post-conviction relief (PCR) case, the PCR court vacated respondent Randy Drummond’s grand larceny conviction and remanded for a new trial.  This Court granted the State’s petition for a writ of certiorari to review the PCR court’s decision.  We reverse.

FACTS

In November 2004, respondent pled guilty to grand larceny and failure to stop for a blue light with great bodily injury.  The trial court accepted the plea agreement and sentenced respondent to eight years on each charge, concurrent.[1]

The indictment for grand larceny stated the following:

That [respondent] did in Greenville County, on or about the 23rd day of August, 2003, feloniously take and carry away the personal property of Peak Performance of the value of more than One Thousand dollars, described as follows:  a Sony flat screen T.V., with intent to deprive the owner permanently of such property.  This is in violation of § 16-13-30 of the South Carolina Code of Laws (1976) as amended.

The heading stated the indictment was for “Grand Larceny” and no subsection of the statute was listed.  Section (B) of the larceny statute defines grand larceny as larceny “of goods, chattels, instruments, or other personalty valued in excess of one thousand dollars” and provides for different sentencing depending on the value of the property, as follows:

Upon conviction, the person is guilty of a felony and must be fined in the discretion of the court or imprisoned not more than:

(1) five years if the value of the personalty is more than one thousand dollars but less than five thousand dollars;

(2) ten years if the value of the personalty is five thousand dollars or more.

S.C. Code Ann. § 16-13-30(B) (2003) (emphasis added). 

At the plea hearing, counsel informed the trial court that the grand larceny charge was for over $5,000.00 worth of property because the television was worth $6,000.00.  The trial court stated to both respondent and his counsel that the maximum sentence was 10 years.[2] 

As discussed above, the trial court sentenced respondent to eight years’ imprisonment on the grand larceny charge.  The sentencing sheet, however, listed section 16-13-30(B)(1) and also stated that respondent pled guilty to “grand larceny $1000 or more.” 

Respondent argued at the PCR hearing that he was erroneously sentenced under section 16-13-30(B)(2) because eight years was more than what he “was indicted for.”  Respondent’s counsel testified that the television was a plasma flat screen TV and the State was prepared to present witness testimony that its value was over $6,000.  Counsel further stated that respondent was “fully aware of the value of the TV” and they both “clearly knew that it was over 5,000.”  

In the written PCR order granting respondent relief, the PCR court noted the sentencing sheet listed section 16-13-30(B)(1) but respondent was sentenced under section 16-13-30(B)(2).  Consequently, the PCR court found that the grand larceny indictment and sentencing sheet were “improper” and vacated the grand larceny conviction.

DISCUSSION

The State argues the PCR court erred in granting relief to respondent because the indictment properly put respondent on notice to what charge he was facing, and therefore he was not erroneously sentenced.  We agree.

In a PCR proceeding, the applicant bears the burden of establishing that he is entitled to relief.  Edwards v. State, 372 S.C. 493, 495, 642 S.E.2d 738, 739 (2007).  This Court will uphold the findings of the PCR court if there is any evidence of probative value to support them.  Cherry v. State, 300 S.C. 115, 386 S.E.2d 624 (1989).  The Court will reverse the PCR court’s decision when it is controlled by an error of law.  Pierce v. State, 338 S.C. 139, 145, 526 S.E.2d 222, 225 (2000).

The indictment is the pleading by which the defendant is informed of the fact, and the nature and scope, of the accusation.  State v. Gentry, 363 S.C. 93, 102, 610 S.E.2d 494, 499 (2005) (citations omitted).  Thus, the indictment is a notice document.  Id. at 102, 610 S.E.2d at 500.  The Gentry Court further explained that when “determining whether an indictment meets the sufficiency standard, the court must look at the indictment with a practical eye in view of all the surrounding circumstances….  Further, whether the indictment could be more definite or certain is irrelevant.”  Id. at 103, 610 S.E.2d at 500 (citations omitted).

We find the PCR court erred in granting relief because there was nothing about the indictment that was improper.  Clearly, the indictment was sufficient to place respondent on notice he was facing a charge of grand larceny since the indictment listed the appropriate statutory section for grand larceny and had a heading of “Grand Larceny.”  Moreover, the crime of grand larceny is statutorily defined as the taking of property valued at more than one thousand dollars, and that is precisely what was written in the indictment.  See § 16-13-30(B).

Additionally, the PCR court erred in granting relief based on the sentencing sheet.  The PCR court apparently decided that because the sentencing sheet listed section 16-13-30(B)(1), but respondent was sentenced to more than five years, respondent was entitled to have the entire charge vacated.  The sentencing sheet, however, “is not part of the indictment;” it simply “does not affect the nature of the offense charged.”  State v. Sosbee, 371 S.C. 104, 113, 637 S.E.2d 571, 575 (Ct. App. 2006).  Thus, any scrivener’s error on the sentencing sheet does not operate to invalidate the indictment.  Id.

Accordingly, the PCR court erred, as a matter of law, by finding the indictment improper and vacating respondent’s conviction.  Pierce v. State, supra (when the PCR court’s decision is controlled by an error of law, this Court will reverse).

REVERSED.

TOAL, C.J., MOORE, PLEICONES and BEATTY, JJ., concur.


[1] The State agreed to dismiss respondent’s other charges for burglary, receiving stolen goods, and possession of a stolen vehicle and recommended the eight-year concurrent sentence for the remaining two charges.

[2] In addition, it was also discussed at the plea hearing that respondent was subject to a three-strikes sentencing provision which provides for a maximum ten‑year sentence.  See S.C. Code § 16-1-57 (2003).