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2010-UP-024 - The State v. Jesse Holland

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.

Jesse D. Holland, Appellant.


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


Unpublished Opinion No. 2010-UP-024
Submitted January 4, 2010 – Filed January 25, 2010   


AFFIRMED


Appellate Defender Elizabeth A. Franklin-Best, of Columbia, for Appellant.

Assistant Chief Legal Counsel John Benjamin Aplin, South Carolina Department of Probation, Parole & Pardon, of Columbia, for Respondent.

PER CURIAM:  On October 19, 2006, Jesse Holland was sentenced to two concurrent ten year sentences, suspended to five years probation, after pleading guilty to two counts of assault and battery of a high and aggravated nature.  Following a September 10, 2007 probation revocation hearing, the trial court revoked three years of Holland’s suspended sentence and terminated his probation.  Holland appeals, asserting he was entitled to have the revocation vacated and have a new hearing on the matter because the judge imposed the sentence in his absence, after making additional phone calls to unknown parties about the case, and neither he nor his attorney were ever made aware of the contents of the conversations or allowed to object to the sentence imposed.  We affirm.[1]

FACTUAL/PROCEDURAL HISTORY

Holland appeared before the trial court at his probation revocation hearing following issuance of a probation arrest warrant and citation charging Holland with violating various conditions of probation, including but not limited to failure to report, failure to refrain from using controlled substances or consuming alcohol, failure to work, and association with a person with a criminal record.  Holland did not dispute the various violations, but acknowledged he had a fairly extensive drug problem and “was clean for two years” but relapsed after being given drugs for treatment of a medical condition.  Given his drug problems, counsel argued “a more appropriate sentence [for Holland] would be something like six months suspended to ninety days time served, then ninety days house arrest.”  After Holland expounded on his attempts to get treatment for his addiction and the interplay between that and his violations, the court asked Holland if he had “ever been through A.T.U.”  Holland responded, “I’m H.I.V. positive, your Honor.  And they don’t have it there at Broad River. . . .  H.I.V. guys go in one dorm and that’s it.”  The court then queried, “So you’re not going to get A.T.U. no matter what?”  Holland did not directly answer the question, but recognized if he kept using drugs he would die and asked the court to give him the opportunity to get help.  The following colloquy then occurred:

[Court]:  I just don’t know where to send you.

[Holland]:  . . . [T]hey got a class out at Behavioral Health that AnMed gave me a referral to.  It’s a chemical dependence program . . . .  I think it’s a ninety-day program . . . .

.         .         .

[Probation Agent]:  Your Honor, if he can’t do the A.T.U., the State still stands at a partial revocation of two years.

[Court]:  All right.  I’m going to take this under advisement for about half a day.  I need to make a call on this one.  I need to find out something about it.  So I’ll let you know this afternoon.

[Holland’s Counsel]:  Okay.  Does his honor want to see the referral?

[Court]:  No.  I believe you.  I mean the question really is where do I send you.  I mean, that’s the problem.  So give me about half a day.  I’ll let you know this afternoon one way or the other.  Okay?

Holland then thanked the court and the matter concluded.

On September 14, 2007, the trial court signed an order revoking three years of Holland’s suspended sentence.  The order indicates Holland was presented with the order but refused to sign it on September 19, 2007.  On September 21, 2007, counsel for Holland prepared a notice of appeal in this matter, and included a footnote stating the hearing was held on September 10 and the court took the matter under advisement, but the court never advised counsel of the sentence and only after counsel contacted the parole office on September 20 was he informed of the sentence.

ISSUE

“Whether Holland is entitled to have his probation revocation sentence vacated and allowed to have a resentencing hearing because the judge sentenced him in his absence, after making additional phone calls to unknown parties about his case, and neither Holland nor his attorney were ever made aware of the contents of those conversations or allowed to object to the sentence that was imposed.”

LAW/ANALYSIS

Holland contends, instead of honoring the probation department’s request for a two year partial revocation, the judge ordered Holland be committed for a three year term with termination of probation, and did so without informing either him or his attorney.  He argues the trial judge’s actions violated his due process rights inasmuch as he had the right to be present at his sentencing, and by sentencing him in his absence, the judge denied him his right to object to the sentence on the record and foreclosed his ability to raise an abuse of discretion argument with respect to the sentence.  Holland maintains he was not given the opportunity to ask the court to reconsider its judgment in light of the facts uncovered by the judge in his phone calls as he was not privy to the conversations nor present when the judge sentenced him.

Holland has failed to preserve this issue for appellate review.  For an issue to be properly preserved for review, it must be raised to and ruled upon by the trial court, and issues not so raised and ruled upon will not be considered on appeal.  State v. Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691, 693-94 (2003).  An issue may not be raised for the first time on appeal.  In re Michael H., 360 S.C. 540, 546, 602 S.E.2d 729, 732 (2004).  In order to preserve an issue for appeal, it must be raised to and ruled upon by the trial court; the trial court must be given an opportunity to resolve the issue before it is presented to the appellate court.  Id.  Here, when the trial court stated its intention to take the matter under advisement and make a phone call, counsel responded, “Okay.”  The judge then made clear the question he had was where he should send Holland and that he needed more time to resolve that problem.  Holland did not object to or raise any issue with regard to this proposal by the court.  Neither did Holland request he have an opportunity to be heard on the matter after the court made any such phone calls, or before the court’s final determination regarding revocation.  Additionally, Holland could have made a post trial motion for reconsideration of the three year revocation, or a motion for a new probation sentencing hearing based on his right to appear and object to the sentence.  See Rule 29, SCRCrimP (“Except for motions for new trials based on after-discovered evidence, post trial motions shall be made within ten (10) days after the imposition of the sentence.”).  Because Holland implicitly acquiesced in the judge taking the matter under advisement in order for him to determine where he would send Holland, raised no objection to this proposal nor requested he be heard again on the matter after the judge had looked into the matter, and made no post-trial motion raising the issue he now raises on appeal, the trial court was never given an opportunity to address the issue.  The decision of the trial court is accordingly

AFFIRMED.

HUFF, A.C.J., GEATHERS, J., and CURETON, A.J., concur.


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