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2009-UP-618 - The State v. Michael Anthony Still

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Michael Anthony Still, Appellant.


Appeal From Lexington County
L. Casey Manning, Circuit Court Judge


Unpublished Opinion No. 2009-UP-618
Submitted December 1, 2009 – Filed December 22, 2009   


AFFIRMED


Appellate Defender Robert M. Pachak, of Columbia, for Appellant.

John Benjamin Aplin, of Columbia, for Respondent.

PER CURIAM:  This is an appeal of Michael Anthony Still's probation revocation.  Still contends he made no valid waiver of the right to counsel and the right to be present at sentencing.  We affirm.

On December 3, 2007, Still pled guilty to aggravated stalking and received a sentence of ten years' imprisonment, suspended upon the service of time served and five years' probation.  On December 5, 2007, a warrant for his arrest was issued, alleging Still failed to report to a probation office immediately after his release from a detention center and failed to report to his mother's home in Denmark, staying instead at his sister's home in Swansea.  On December 8, 2007, Still appeared at a probation violation hearing where he was represented by two public defenders. 

At the hearing, Still explained he did not voluntarily violate the conditions of his probation but made a good faith effort to comply.  Still asserted he believed he could stay with his mother but discovered after his release that her landlord disapproved.   Still said he waited two days before calling the probation office because his sister's house lost power and she only had a cordless phone.  The circuit court found Still had violated his probation and ordered him back to jail.  However, the circuit court did not impose the sentence at the hearing, explaining, "I might want to get [Still] reevaluated one more time by a forensic psychiatrist."  Without further proceedings, the circuit court issued a revocation order dated December 18, 2007, reiterating the finding that Still violated probation, revoking his probation, and reinstating the remaining eight years and three hundred forty-six days of his suspended sentence. 

"The determination of whether to revoke probation in whole or in part rests within the sound discretion of the trial court."  State v. Allen, 370 S.C. 88, 94, 634 S.E.2d 653, 655 (2006); S.C. Code Ann. § 24-21-460 (2007).  An appellate court's authority to review such a decision is confined to correcting errors of law unless the lack of legal or evidentiary basis indicates the circuit court's decision was arbitrary and capricious. State v. Williamson, 356 S.C. 507, 510, 589 S.E.2d 787, 788 (Ct. App. 2003).

"A defendant has a constitutional right to be present at every stage of the criminal proceeding against him."  In re Dwayne M., 287 S.C. 413, 414, 339 S.E.2d 130, 130 (1986).  In South Carolina, all persons charged with probation violations have a right to counsel.  Barlet v. State, 288 S.C. 481, 483, 343 S.E.2d 620, 622 (1986); Rule 602(a), SCACR.  A probationer's right to counsel arises pursuant to the Due Process Clause under the Fifth and Fourteenth Amendments.  Turner v. State, 384 S.C. 451, ___, 682 S.E.2d 792, 794 (2009) (citing Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973)).  The erroneous deprivation of this right constitutes per se reversible error.  State v. Thompson, 355 S.C. 255, 261, 584 S.E.2d 131, 134 (Ct. App. 2003).

The question of whether a defendant's probation should be revoked in whole or in part is committed to the circuit court's sound discretion.  State v. Knapp, 338 S.C. 541, 543, 526 S.E.2d 741, 742 (Ct. App. 2000); see also S.C. Code Ann. § 24-21-460 (2007).  The authority of the revoking court should always be predicated upon an evidentiary showing of fact tending to establish a violation of conditions, and before revoking probation the circuit court must determine whether sufficient evidence established that the conditions of probation were violated.  State v. Hamilton, 333 S.C. 642, 648-49, 511 S.E.2d 94, 97 (Ct. App. 1999). 

Still does not challenge the legality of the sentence he received at the plea hearing; rather, he contends the circuit court's written order of revocation was a "sentencing" to which he had the right of attendance and counsel.  It is uncontested Still was present and represented by counsel at the probation revocation hearing.  Accordingly, Still was afforded due process and his argument is without merit.

AFFIRMED.[1]

WILLIAMS, PIEPER, and LOCKEMY, JJ., concur.


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