Antоnio D. BORDEAUX, Respondent, v. STATE of South Carolina, Petitioner.
Appellate Case No. 2012-212349
Supreme Court of South Carolina.
Decided Oct. 29, 2014.
No. 27457. Heard Sept. 23, 2014.
765 S.E.2d 143
Appellate Defender Kathrine Haggard Hudgins, оf Columbia, for Respondent.
Justice PLEICONES.
We granted certiorari in this post-conviction relief (PCR) action to review the Court of Appeals’ decision, which remanded for a determination of the lawfulness of Antonio Bordeaux‘s sentence. Bordeaux v. State, Op. No. 2012-UP-284, 2012 WL 10841809 (S.C. Ct. App. filed May 9, 2012). The State argues the Court of Appeals erred because the unambiguous рlea colloquy and imposition of sentence control over the ambiguous written sentence. We agree. It is clear Bordeaux pleaded guilty to first degree burglary, was sentenced within the legal limits for that crime, and in consonance with his negotiated plea agreement. We therefore affirm in part and reverse in part.
FACTUAL/PROCEDURAL BACKGROUND
Bordeaux‘s plea agreement was capped at a sentence of twenty-five years. He pled guilty to two counts of armed robbery and two counts of burglary. He was sentenced to twenty-four years’ imprisonment on the armed robbery charges, and to twenty-five years’ imprisonment, suspended upon the service of twenty years with three years’ probation on the burglary counts.
Bordeaux‘s plea proceeding was conducted simultaneously with that of his codefendant, Wesley Washington. Like Bor
“a term of twenty-five years, provided that upon the service of twenty years the balance is suspended and you be placed on probation for a period of three years.” (Emphasis added).
The sentencing sheets, however, indicated Bordeaux pleaded guilty to “Burglary 2nd Degree,” included the CDR Code for second degree burglary, and referenced
At the PCR hearing, Bordeaux claimed his twenty-five year sentence was illegal because the sentencing sheets clearly indicated that he pleaded guilty to second degree burglary, and because his twenty-five year sentence exceeded the maximum for second degree burglary. See
The PCR judge granted Bordeaux a new trial as to the burglary charges because he found Bordeaux was serving an illegal sentence for second degree burglary given his sentence of twenty-five years. The PCR judge based his finding оn his conclusion that Bordeaux‘s sentencing sheets amounted to a
The State appealed. The Court of Appeals reversed and remanded for a determination of the lawfulness of Bordeaux‘s sentence given the сonflict between his plea colloquy and the sentencing sheets. Bordeaux, Op. No. 2012-UP-284. The court found the PCR judge committed an error of law in ruling the sentencing sheets definitively took precedence over the unambiguous plea transcript and directed the PCR judge, on remand, to give “appropriate weight to the plea transcript.” Id. The State sought certiorari on the remand issue. We granted the petition.
ISSUE
Did the Court of Appeals err in remanding for reconsideration of the legality of Bordeaux‘s convictions and sentences for first degree burglary?
LAW/APPLICATION
Whether a sentencing transcript or sentencing sheet is ambiguous is a question of law. See Tant v. S.C. Dep‘t of Corr., 408 S.C. 334, 346, 759 S.E.2d 398, 404 (2014). Likewise, whether a PCR applicant is serving an illegal sentence is a question of law. See Talley v. State, 371 S.C. 535, 545, 640 S.E.2d 878, 883 (2007); see also United States v. Johnson, 765 F.3d 702, 710 (7th Cir.2014) (comparing the sentencing transcript with the written judgment to determine whether an error occurred as a mаtter of law). We therefore review de novo the lawfulness of a sentence. See Tant, 408 S.C. at 346, 759 S.E.2d at 404; Talley, 371 S.C. at 545, 640 S.E.2d at 883.
A sentence is ambiguous if its pronouncement is susceptible of differing interpretations based on the totality of the circumstances. See United States v. Spallone, 399 F.3d 415, 422-27 (2d Cir.2005) (viewing the totality of the circumstances to determine whether a sentencing pronouncement wаs ambiguous); Tant, 408 S.C. at 344-45, 759 S.E.2d at 403-04 (finding both the oral and written sentencing pronouncements were ambiguous because it was not clear from either whether Tant‘s sentences were to run concurrently or consec
Herе, Bordeaux‘s oral sentencing pronouncement was subject to only one interpretation as it is clear Bordeaux pled guilty to two counts of first degree burglary, аnd he was sentenced in consonance with his negotiated plea agreement. As stated, Bordeaux acknowledged on seven occasions that he was рleading guilty to two counts of first degree burglary. Further, Bordeaux twice acknowledged that he was being sentenced pursuant to a negotiated agreement, which includеd pleading guilty to two counts of first degree burglary. Moreover, the trial judge reminded Bordeaux that he was being sentenced for pleading guilty to two counts of first degree burglary. Thus, we find the oral sentencing pronouncement unambiguous as it is susceptible of only one interpretation. Cf. Tant, 408 S.C. at 344-45, 759 S.E.2d at 403-04.
On the other hand, the written sentences were subject to multiple interpretations as it is not clear whether Bordeaux pleaded guilty to first or second degree burglary. For example, the sentencing sheets indicated Bordeaux was being sentenced for “Burglary 2nd degree,” included the attendant CDR Code for that crime, and referenced the second degree burglary statute. Yet, the sentencing sheets also indicated that he was being sentenced “as indicted,” and Bordeaux‘s indictments referenced only first degree burglary. Moreover, one sentencing sheеt had a sentence of fifteen years crossed out and replaced with the twenty-five year sentence. If Bordeaux had in fact pleaded guilty to second dеgree burglary as the sentencing sheets suggested, his sentence of twenty-five years would have exceeded the fifteen year maximum for that crime. See
Therefore, we affirm in part the Court of Appeals’ decision as we agrеe the PCR judge committed an error of law in ruling the ambiguous sentencing sheets took precedence over the unambiguous plea transcript. However, we reverse the Court of Appeals’ decision to remand because we find as a matter of law that Bordeaux pleaded guilty to two counts of first degree burglary and was properly sentenced to twenty-five years’ imprisonment pursuant to his negotiated plea agreement. See Talley, 371 S.C. at 545, 640 S.E.2d at 883.
AFFIRMED IN PART, REVERSED IN PART.
TOAL, C.J., BEATTY, KITTREDGE and HEARN, JJ., concur.