*1 CONCLUSION an Assuming arguendo “employee” Smith is for pur- statute, poses compensation of the workers’ we find that Smith may not combine wages. Assembly General did not intend for an inmate to be able to wages combine determin- his ing average weekly wage.
REVERSED. TOAL, C.J., WALLER, KITTREDGE, JJ., BEATTY and concur.
STATE South Petitioner. No. 26719. Supreme Court of South Carolina.
Submitted Dec. 2008. Sept.
Decided 2009. *2 Attorney General Henry Dargan McMaster, Deputy Chief Attorney McIntosh, General John W. Assistant Deputy Attor- ney Salley Elliott, General W. Assistant Attorney General Molly Crum, Columbia, all of for Petitioner.
Appellate Pachak, Defender Robert M. of South Carolina Defense, Commission on Indigent Columbia, of for Respon- dent.
Justice KITTREDGE. granted We a writ of certiorari to review the grant post- (PCR) conviction relief to Pete Bryant. 11, S. On December 1997, Bryant was convicted of armed robbery. Because Bryant “prior had for conviction[s]” armed he robbery, was sentenced to life without parole under section 17-25-45 of the South Carolina Code. The PCR court ruled that Bryant was subject not to a life without parole sentence and vacated the sentence. We reverse.
I. 27, 1996, On December at approximately p.m., 1:30 while armed with a pistol, Bryant accomplices and robbed the E-Z Shop BP in Station Orangeburg County, South Carolina. The
next day, 28, a.m., December around 2:00 Bryant and accom- plices committed second robbery armed of a convenience store, in this time County. Colleton On December shortly before midnight, Bryant and accomplices committed a third and final armed in robbery Jasper County. In early January three armed with charged and was arrested Bryant
robberies. 8, 1997, the armed robberies to July on' pled guilty
Bryant to ten and was sentenced Jasper and Counties in Colleton 11, 1997, was convicted Bryant December in On years prison. The trial court robbery. County armed Orangeburg reading in of its parole light life without Bryant sentenced the South Carolina Code. and 17-25-50 of of sections construction challenge court’s counsel failed to Trial by affirmed appeal was Bryant’s direct these statutes. (S.C. No. 99-UP-654 Bryant, Op. v. appeals. State court 21,1999). filed Dec. Ct.App.
II. in 2000 was denied. initial for PCR Bryant’s application Gordon, 143, 154, 588 356 S.C. this held State Court 17-25-45 and 17-25-50 105, 111 that sections S.E.2d crimes whether determining together “must be construed for a recidivist qualify close time points at committed its decision retroactive applied The Court Gordon sentence.” 111 n. 12. n. Id. at 155 S.E.2d ly. Gordon, application the current PCR Bryant filed
Based on failing of counsel for ineffective assistance alleging in 2004 17-25- of sections interpretation the trial court’s challenge 45(F) hearing asserted at the PCR Bryant and 17-25-50. not criminal,” the armed robberies were a “career he was not string “one “isolated,” the robberies constituted and The granted relief. agreed court events.” PCR that “all the Appli- and found court referenced Gordon PCR from a criminal single offenses stemmed robbery cant’s armed *4 of time as to so and were committed incident Ann. 17-25- under Section treated as one offense S.C.Code (Supp.2004).” 50 certiorari, we for a writ of which petitioned State
granted.
III.
judge’s
reverse the PCR
An
court “will
appellate
v.
an error of law.” Pierce
by
it is controlled
decision when
529
State,
(2000).
139, 145,
222,
338 S.C.
526 S.E.2d
225
As this
statutory interpretation,
case involves
we are
with a
presented
State,
question of law.
Indian Tribe
See Catawba
S.C.
of
(“The
519, 524,
751,
372
642
S.C.
S.E.2d
753
issue of
court.”).
interpretation
question
of a statute is a
of law for the
“The
rule of
primary
statutory construction is to
ascertain and
effect
give
to the intent of the legislature.”
Altman,
Lexington,
Mid-State Auto Auction
Inc. v.
324
of
65, 69,
690,
(1996).
476
S.C.
S.E.2d
692
A statute should be
Further,
read as a whole. Id.
which are
part
“[statutes
same
scheme should
legislative
together.”
be read
Great
Games,
Revenue,
79,
Dep’t
84,
Inc. v. S.C.
339 S.C.
529
(2000).
S.E.2d
8
“Unless there is
in the
something
statute
requiring
interpretation,
different
the words used in a
statute must be
their
given
ordinary meaning.” Mid-State
Auto,
324
at
S.C.
IV. The resolution of this case requires Court 17-25-45, history examine the legislative scrutinize (F) the interplay between subsection of section 17-25-45 and 17-25-50, Gordon, in light revisit of the 2006 amendment 17-25-45(F). to section below,
For the reasons discussed
we adhere to that
part
17-25^5(F)
holding
Gordon
sections
and 17-25-50 must be
construed together, as section 17-25-50
operates
some
situations to
preclude
imposition of a life without parole
sentence. 356
at
at
S.C.
S.E.2d
111. We overrule
Gordon insofar as its assessment of
intent
concern-
153-54,
ing sections
and 17-25-50. 356
at
S.C.
Specifically, referring sections 17-25-45 and majority of this Court stated “the recidivist statute Gordon criminals, is aimed at career those who have previously been sentenced and then commit another crime.” 356 S.C. 111. S.E.2d at further concluded that Gordon “[t]he
purpose requiring separate offenses is to ensure that those being offenders sentenced under the harsh of a provisions recidivist sentencing statute have not been classified as habitu- al offenders because of convictions multiple arising from
530 110-11 at 588 at Id. S.E.2d enterprise.” criminal
single 441, 446, 579 S.E.2d Benjamin, 353 S.C. State (quoting (2003) (Waller, J., dissenting)). 291
A. Section abstract, majority rationale of the policy the In the of the policy But the desired entirely is defensible. Gordon unambiguous language at with the majority is odds Gordon 17-25-45(F). make for finding lightly, We do not this 17-25-45(F), of section rigid application that a recognize we alone, perception would lead to harsh results. Our standing results, however, serves as no license the for harsh potential its clear in a manner inconsistent with to construe the statute below, Moreover, as addressed section 17-25-50 language. to the meaningful safeguard in most situations as serves a life without parole unfair sentence. perceived imposition is, believe, we under- majority The of the best view Gordon 17-25-45(F). to section looking predecessor stood to the by former section 17-25-40 of Legislature repealed the it replaced and with section the South Carolina Code certain provided 17-25-45. The statute listed offenses and has three convictions” shall be sen- “any person who 17-25-45(i )(A) § Ann. prison. to life in S.C.Code tenced (1985). the significance following provision: is particular Of conviction only conviction shall be considered second
[A] the commission of the second crime occurred if the date of to the of the sentence for the first subsequent imposition A conviction shall be considered a third conviction offense. of the crime if the date of the commission third only to the of the sentence for subsequent imposition occurred the second offense. 17-25-45(i )(C) (1985). § of the language Ann.
S.C.Code notions set forth in policy 1982 statute fits well with Gordon offenders,” trials,” criminal con- “multiple “multiple “habitual victions,” gravity to understand “opportunities Gordon, 588 at 111. behavior.” S.C. S.E.2d [one’s] The 1995 amendments to section 17-25-45 abandoned offense for enhancement subsequent purposes that a necessity occur after imposition sentence for the prior offense. The same is true with amendments subsequent Thus, to 1995. while the rationale Gordon fits well -with the 1982 legislation, *6 those policy considerations are nowhere to be found in the prevailing statutory effective language, with the 1995 amend- ments.
In when Bryant robberies, committed the armed (F) subsection provided:
For the of purpose a determining prior conviction under this section only, prior a conviction shall mean the defendant has been convicted of a most offense, serious or serious as may be applicable, occasion, on a separate prior to the instant adjudication. 17-25-45(F) §
S.C.Code Ann. (Supp.1995). noted, As this Court decided Gordon in making determination of legislative (F). intent as to subsection In 2006, the Legislature 17-25-45(F), amended section and we believe the amendment was in response to Gordon on two First, fronts. Legislature the confirmed the correctness of 17-25^45(F) Gordon’s holding sections and 17-25-50 must Second, be construed together. the Legislature repudiated Gordon’s of “a or reading prior previous conviction.”
For the of purpose determining prior previous or convic- tion 17-25-50, under this section and Section prior or previous conviction shall mean the defendant has been convicted of a most offense, serious or serious as bemay applicable, occasion, on a separate prior to the instant adjudication. There is no requirement that the sentence for prior the or previous conviction must have been served or completed a sentence parole without can be before of life imposed under this section. 17-25-45(F) added). § S.C.Code Ann. (Supp.2008) (emphasis Even in the absence of the second sentence added to (F) subsection the provides statute prior that “a conviction shall mean the defendant has been convicted of a most serious or serious ... occasion, offense on a separate prior adjudication.” to the instant § S.C.Code Ann. 17-25- 45(F) (Supp.1995). Bryant’s situation falls squarely within the triggering language 17-25-45(F), of section as it existed in (F), 1996. The last sentence in subsection added in the first sentence feature contained timing confirms contrary interpretation. repudiates Gordon’s
B. Section 17-25-50 states: Section purpose the number of offenses for determining offense sentence, the court shall treat as one imposition times been committed at which have any number of offenses they may time that point connected in closely so law offense, under the notwithstanding one considered as offenses. and distinct they separate constitute no Bryant support, lends While section 17- meaning turns on the the outcome of this case they of time that “so connected phrase 25-50’s *7 the “so acknowledge be considered as one offense.” We may 17-25- time” in section point language connected in closely as to certain situations. may ambiguous applied 50 become of the forming part legislative same construing When statutes scheme, statutes as a whole. together we must examine the feature of unambiguous timing we read the Accordingly, when 17-25^15(F) alongside sec “a conviction” under section prior 17-25-50, 17-25-50 to language we construe the of section tion multiple sentence when the parole a life without preclude share an immediate inextricably are connected and offenses proximity. temporal (2004) 1, 596 907 illustrates v. 359 S.C. S.E.2d Woody,
State
life
17-25-50 to
a
preclude
of section
proper application
was convicted of second-
parole
Woody
without
sentence.
armed
prior
two
convictions for
degree burglary and had
2,
to use
sought
at
at 907. The State
robbery.
Id.
596 S.E.2d
for enhancement purposes
convictions
robbery
both armed
State’:; position
Id. The
parole
and a life without
sentence.
constituted, as a
rejected
the armed robberies
was
because
law,
for
of section 17-25-50.
purposes
matter of
one offense
4,
The two armed robberies arose
596
at 908.
Id.
S.E.2d
at the same time and at the same
single
from a
incident
clerk and the store itself.
of the store’s
robbery
location—a
2,
Id. at
533 State, 531, 534, 680, In Koon v. 372 643 682 S.C. S.E.2d (2007), burglary this held a on Court committed March 28th of a different and a building clearly different location constituted separate from burglaries occurring prior offense two weeks determination, on March 13th and March 14th. Due to this it was not necessary for this Court to determine if March the 13th and March 14th burglaries closely were so connected to constitute offense. Today one we address the left question in Koon. unanswered Our assessment of of multiple intent —
fenses inextricably connected and
an
sharing
immediate tem
poral proximity
not
provide
every
sure answer in
—will
circumstance. Because the “so
connected in
time”
in
language
section 17-25-50
become
may
ambiguous
situations,
some
it necessarily follows that section 17-25-50
does not
itself to a bright-line
lend
rule. This Court
held in
so
genuine
Koon. When a
as
ambiguity exists
a result of the
situation,
to a
proposed application
given
section 17-25-50
lenity
the rule of
that the
requires
doubt must be resolved
Blackmon,
270, 273,
the defendant’s favor.
v.
304
State
S.C.
403 S.E.2d
662
(recognizing
settled rule
must
penal
strictly
statutes
the defendant’s
construed
favor);
Shabani,
10, 17,
see
also United States
513
115
U.S.
(1994) (observing
S.Ct.
We that the emphasize prior the determination of number of 17-25-45(F) convictions under section must be made in con- safeguard. 17-25-50 “one offense” the section junction with tend statutory scheme parole the life without involving Cases First, the link without of two concerns. specter the to raise 17-25-45(F) 17-25-50, troubling and issues sections between timing when a adjudications the the of arise from would of- serious charged multiple and with is arrested defendant adjudicated guilty, disposing is Assuming a defendant fenses. of application avoid the at the same time will charges all of charges preclude it relates to those and as section offenses, if the This is so even sentence. parole a life without a life with- require would otherwise adjudicated separately, if charges of the Conversely, disposing out sentence. parole sentence, parole result in a life without times would different operates 17-25-50 provision offense” of section unless the “one unsettling policy It an a life would be to foreclose sentence. adjudica- the manipulate timing the to that allows state Hence parole a life without sentence. pursue to guilt tions safeguard. 17-25-50’s “one offense” of section importance the The of section language to the second concern. This leads when to certain situations. applied is ambiguous 17-25-50 connected in of time closely point “so imprecise language, offense,” does not remove be considered as one they may that manipulating timing for the potential in situation the every and Bryant’s multiple separate As with adjudications. the robberies, or of sec- applicability nonapplicability armed in most circumstances. may readily apparent tion con- Nevertheless, language 17-25-50’s will imprecise section Pending situations. uncertainty some generate tinue earnestly attempt today we Legislature, clarification from the intent. to discern
V. (1) sum, operates trigger section 17-25-45 we hold: “two-strikes” respective under the parole life without sentence (2) (F) subsection section provisions; “three-strikes” and iden- timing feature for straightforward 17-25-45 sets forth a conviction;” 17-25-50 is intend- section tifying prior “a to ensure safeguard as a sanctioned legislatively ed to serve imposed is not cases a life without sentence parole 17-25^45 offenses are “so multiple where one they may time that be considered as connected *9 offense,” which we construe to mean the offenses are inextri- cably connected and share an temporal immediate proximity. essence, may two, what be charged as three or more strikes under section 17-25-45 must be deemed “one-strike” for sen- tencing purposes and, under section result, 17-25-50 aas preclude life without parole sentence. We believe this most approach closely hews to legislative intent based on what is admittedly imprecise statutory language.
We reverse the grant of PCR to Bryant.
REVERSED. TOAL, C.J., PLEICONES, J., concurs. in a concurring separate opinion. BEATTY in a dissenting separate opinion WALLER, J., in which concurs.
Justice PLEICONES.
I concur in Justice Kittredge’s decision to reverse the grant
of post-conviction
respondent
relief to
Ias
continue to believe
that
State v. Benjamin, 353 S.C.
Justice BEATTY.
I disagree with the majority’s analysis of the import of the 17-25-45(F). Legislature’s 2006 amendment to section In my view, this amendment does not call question into the Gordon décision or its expression intent. 45(F)
Section recognizes requirement Gordon’s that 17-25— it should be read with together section 17-25-50. To do so does not mean should be read to the 17-25-50; exclusion of section nor does it mean that section 17-25-50 acquired meaning new or should be interpreted differently. These sections should be in a interpreted manner that gives effect to both. This may accomplished by recognizing section 17-25-45 focuses on how to determine how a focuses on conviction and section prior sentencing purposes under treated for should be conviction *10 certain circumstances. Gordon; is the as in that in this case is the same
The issue 17-25-50 section 17-25-50. Section interpretation of correct “... of the language in its use ambiguous unquestionably is of time that connected at times so committed ” is no offense.... There as one they may considered that offenses multiple under section requirement Yet, the in the transaction. the same time or same occur at requirement transactional injects contemporaneous majority 17-25-45(e) section or none is found either section though either to effectuate the intent of unnecessary is 17-25-50 and section. since Gordon to Legislature ample opportunity
The has had Thus, not so. it 17-25-50 but has done clarify further intent Gordon’s interpretation legislative appear would recidivism, is and flexibili- focus Legislature’s is correct. effect to necessary give in time” is “close ty interpreting place multiple offenses took intent. Gordon> Here, place the offenses took days. over a of seven period an LWOP fifty-four Assuming hours. during period case, the facts of the instant inappropriate is under sentence maximum consecu- multiple, Bryant exposed would still be tive sentences. affirm.
I would
WALLER, J., concurs.
Sept. 2009. ORDER with solicitation to charged was arrested Respondent Disciplinary felony. Consequently, Office commit