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2008-MO-047 - Kelley 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

Myron Kelley, Petitioner,

v.

State of South Carolina, Respondent.


ON WRIT OF CERTIORARI


Appeal From Richland County
G. Thomas Cooper, Jr., Circuit Court Judge
James R. Barber, III, Post-Conviction Relief Judge


Memorandum Opinion No.  2008-MO-047
Submitted November 19, 2008 – Filed November 24, 2008


AFFIRMED


Appellate Defender Elizabeth A. Franklin-Best, of the South Carolina Commission on Indigent Defense, Division of Appellate Defense, of Columbia, for Petitioner.

Attorney General Henry D. McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Brian Petrano, all of the Office of the Attorney General, of Columbia, for Respondent.


PER CURIAM:  In this post-conviction relief (PCR) matter, petitioner seeks a writ of certiorari to review the PCR judge’s order dismissing his PCR application and finding he is entitled to a belated review of his direct appeal issues.  The State has filed a motion to strike a portion of petitioner’s brief. 

The petition is denied as to petitioner’s Question II.  However, because there is sufficient evidence to support the PCR judge’s ruling that petitioner did not knowingly and intelligently waive his right to a direct appeal, we grant the petition for a writ of certiorari as to petitioner’s Question I and proceed with a review of the direct appeal issue pursuant to Davis v. State, 288 S.C. 290, 342 S.E.2d 60 (1986). 

Petitioner contends his guilty plea was not knowingly and voluntarily entered because he was unaware that there was a negotiated thirty-year sentence.  The transcript from the plea hearing shows all parties present at the plea hearing – petitioner, the solicitor, plea counsel, and the plea judge – understood there was a thirty-year negotiated sentence.  Moreover, petitioner was fully informed of the consequences of his guilty plea, including the rights he waived by entering a guilty plea and the maximum penalty for his offenses.  Roddy v. State, 339 S.C. 29, 528 S.E.2d 418 (2000); Pittman v. State, 337 S.C. 597, 524 S.E.2d 623 (1999).  Accordingly, we affirm petitioner’s convictions and sentences.  In light of our disposition of this matter, we deny the State’s motion as moot.

AFFIRMED.

TOAL, C.J., WALLER, BEATTY and KITTREDGE, JJ., concur. PLEICONES, J., not participating