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 Supreme Court
The State, Respondent,
Andrew James Harrelson, Jr., Appellant.
Appeal From McCormick County
William P. Keesley, Circuit Court Judge
Memorandum Opinion No. 2010-MO-030
Heard October 6, 2010 – Filed November 8, 2010
VACATED AND REMANDED
Deputy Chief Appellate Defender Wanda H. Carter, of South Carolina Commission on Indigent Defense, of Columbia, for Appellant.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Norman Mark Rapoport and Assistant Attorney General Mark R. Farthing, Office of the Attorney General, all of Columbia, and Solicitor Donald V. Myers, of Lexington, for Respondent.
PER CURIAM: Andrew James Harrelson, Jr. ("Harrelson") appeals the circuit court's sentence placing him on an active electronic monitoring device following a guilty plea. Harrelson asserts the electronic monitoring provision found in Section 23-3-540 of South Carolina Code (Supp. 2009) is unconstitutional because it violates the Eighth Amendment prohibition against cruel and unusual punishment and disproportionate sentencing. Because Harrelson's plea was conditional, we decline to address the issues raised, vacate the plea and remand for further proceedings.
Harrelson pled guilty to committing a lewd act on a minor. During the plea colloquy, the judge informed Harrelson section 23-3-540 required he be placed on an electronic monitoring device. Harrelson's attorney made a constitutional objection before the guilty plea was accepted. After accepting Harrelson's plea, the circuit court judge sentenced him to be committed to the South Carolina Department of Corrections Youthful Offender Division for an indeterminate term not to exceed six years, plus the applicable costs and assessments. In addition, Harrelson, upon release from imprisonment, was to wear an active electronic monitoring device and ordered to adhere to the standard conditions for sex offender monitoring. Harrelson reiterated his objection during the sentencing portion of the hearing, but the court overruled the objection. This appeal followed.
Harrelson raises one issue on appeal: Whether the electronic monitoring provision under section 23-3-540 is unconstitutional to the extent it violates the Eighth Amendment prohibition against cruel and unusual punishment and disproportionate sentencing.
STANDARD OF REVIEW
Generally, "[i]n criminal cases, an appellate court reviews errors of law only and is bound by the factual findings of the trial court unless clearly erroneous." State v. Bryant, 372 S.C. 305, 312, 642 S.E.2d 582, 586 (2007).
It is axiomatic that conditional pleas may not be accepted in South Carolina. See In re Johnny Lee W., 371 S.C. 217, 220, 638 S.E.2d 682, 684 (2006); see also State v. Peppers, 346 S.C. 502, 504, 552 S.E.2d 288, 289 (2001) (court could not accept guilty plea where appellant conditioned guilty plea upon right to appeal constitutionality of indictment); State v. Truesdale, 278 S.C. 368, 370, 296 S.E.2d 528, 529 (1982) (conditional plea is a practice not recognized in South Carolina and a practice of which this Court expressly disapproves). If “an accused attempts to attach any condition or qualification” to a guilty plea, then “the trial court should direct a plea of not guilty.” Truesdale, 278 S.C. at 370, 296 S.E.2d at 529.
The State contends that under State v. Easter, 355 S.C. 79, 584 S.E.2d 117 (2003), no conditional plea resulted from this situation. In Easter, the court held that "[s]entencing, although often combined with the admission of guilt in a hearing, is a separate issue from guilt and a distinct phase of the criminal process. Therefore, when Easter entered his guilty plea but objected to his sentence he did not enter an invalid, conditional guilty plea." Id. at 81-82, 584 S.E.2d at 119. We find Easterdistinguishable from the facts here. In this case, Harrelson's trial counsel made a constitutional objection before the guilty plea was accepted by the circuit court. Additionally, counsel reiterated that objection during the sentencing portion. By objecting during the guilt portion of the hearing as opposed to just during the sentencing phase, Harrelson's plea became conditional.
Because we find Harrelson's plea was conditional, we decline to address his Eighth Amendment challenges to section 23-3-540. See State v. Allen, 370 S.C. 88, 102, 634 S.E.2d 653, 660 (2006) (declining to address remaining issues addressed by appellant when prior issue was dispositive).
For the reason indicated above, we vacate Harrelson's guilty plea and remand for further proceedings.
TOAL, C.J., PLEICONES, BEATTY, KITTREDGE and HEARN, JJ., concur.