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2008-UP-338 - State v. McGrier

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.

Leroy McGrier, Appellant.


Appeal From Greenwood County
 J. Cordell Maddox, Jr., Circuit Court Judge


Unpublished Opinion No.  2008-UP-338
Submitted June 1, 2008 – Filed July 7, 2008


REVERSED


Appellate Defender LaNelle C. DuRant, of Columbia, for Appellant.

John Benjamin Aplin, of Columbia, for Respondent.

PER CURIAM:  Leroy McGrier challenges the trial judge’s order revoking ninety days for violating the conditions of the Community Supervision Program (CSP).  McGrier contends application of the CSP statute, section 24-21-560(D) of the South Carolina Code, is unconstitutional because it resulted in the imposition of a greater sentence than his original sentence.  We reverse.[1]    

FACTS

McGrier was sentenced to three concurrent prison terms of three years each.  After serving thirty-two months of the thirty-six month sentence, McGrier was released to the South Carolina Department of Probation, Parole and Pardon Services (the Department) and entered the CSP.  McGrier was scheduled to end participation in the CSP on May 3, 2004.

In February of 2004, the trial judge found McGrier willfully violated the terms of the CSP and revoked four months, remanding McGrier back to the custody of the South Carolina Department of Corrections.  After serving this sentence, McGrier was again released to CSP and assigned an ending date of June 22, 2006.  In April of 2005, the trial judge again found McGrier had violated the conditions of the CSP and sentenced McGrier to six months imprisonment.  On April 3, 2006, the trial judge again found McGrier in violation of the terms and conditions of the CSP and ordered McGrier held in jail until he was accepted into an inpatient substance abuse treatment program.

On October 26, 2006, the trial judge held another hearing on McGrier’s alleged violations of the CSP.  McGrier argued the potential one-year incarceration for the violations amounted to the imposition of a new criminal sentence and violated his constitutional rights by not affording him the rights guaranteed to a criminal defendant.  On October 30, 2006, the trial judge found McGrier in violation of the CSP, revoked McGrier’s CSP, and sentenced him to ninety days.  McGrier appealed to this court.

On January 27, 2007, McGrier was again released to the CSP.  On April 2, 2007, he appeared before the trial judge for alleged violations and raised the same constitutional challenge.  The trial judge revoked McGrier’s CSP and ordered McGrier to serve six months.  McGrier appealed and the South Carolina Supreme Court reversed.  See State v. McGrier #2, Op. No. 26489 (S.C. Sup. Ct. refiled June 23, 2008) (Shearouse Adv. Sh. No. 26 at 24).

LAW/ANALYSIS

Appealing the October 30, 2006 revocation and sentence, McGrier argues the trial judge erred in not finding section 24-21-460(D) of the South Carolina Code unconstitutional as applied to him.  Based on the supreme court’s analysis in McGrier #2, we agree.

The CSP statute provides:

The maximum aggregate amount of time the prisoner may be required to serve when sentenced for successive revocations may not exceed an amount of time equal to the length of incarceration imposed for the original “no parole offense.” The original term of incarceration does not include any portion of a suspended sentence.


S.C. Code Ann. § 24-21-560(D) (2007).  In McGrier #2, the supreme court stated:

We now read this language as limiting the total amount of time an inmate could be incarcerated after a CSP revocation to be the length of the remaining balance of the sentence for the ‘no parole offense.’ Based on this interpretation, a circuit court may not impose a sentence for a CSP revocation that would result in an inmate being incarcerated for an aggregate period of time that extended beyond the unsuspended portion of the original sentence. Thus, assuming an inmate has served at least eighty-five percent of the unsuspended portion of his original sentence, an inmate whose CSP is revoked is limited to serving an amount of time equal to the remaining fifteen percent balance of this sentence.

McGrier #2 at 36.  As McGrier has served eighty-five percent of the original, three-year term of imprisonment and has served CSP revocation time of more than the time remaining on his original sentence, the decision of the trial judge is

REVERSED.

HEARN, C.J., and SHORT and KONDUROS, JJ., concur.


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