*1 show for an burden to would have been terminated leave, reason while on FMLA or that her unrelated continued limited, would been employment have order to defeat alternative, claim pay; reduce the for front in the Waffle could feasibility House have asserted the reinstatement front pay carry lieu of a award. Waffle House failed to its this burden on issue. defer to trial judge’s judgment We and affirm the award of front pay. Court of Appeals’s decision vacating the award reversed. PART;
AFFIRMED IN IN PART. REVERSED C.J., WALLER, TOAL, PLEICONES, JJ., BURNETT and concur. JOSEPH, Petitioner,
Marcus A. Carolina, Respondent. STATE of South Petitioner, Joseph, A. Marcus Carolina, Respondent. State of South No. 25539.
Supreme Court of South Carolina. May
Heard 2002. Oct.
Decided 2002. *3 Dudek, of Assistant Defender Robert M. Appellate Defense, Columbia, Appellate Carolina Office of for South petitioner. Condon, Attor- Deputy General Charles M. Chief
Attorney McIntosh, Deputy Attorney General John Assistant ney W. Bullard, Attorney General Doug- General Allen Assistant Leadbitter, Columbia, all for respondents. las E. Justice MOORE: they consolidated these cases because involve the same
We underlying guilty pleas. granted petitions We writs of determine is a certiorari whether lesser- petitioner’s plea included offense of armed whether entered, knowingly voluntarily to murder was and wheth- court er the lacked affirm.
murder indictment. We
FACTS *4 murder, for Petitioner was indicted armed accesso- fact, a a violent ry possession weapon during before the of he to pled guilty larceny crime. In murder imprisonment life a ten- and was sentenced to and concurrent sentence, appeal No direct was taken. year respectively. (PCR) hearing petitioner’s post-conviction After a on relief action, plea the court did not have the PCR court ruled plea to to subject jurisdiction accept petitioner’s matter not a grand larceny because lesser-included offense robbery. of His for was armed conviction The court petitioner’s vacated. PCR denied claim that his unknowing entire was guilty plea involuntary rendered the plea because court lacked his to accept plea grand larceny.
Petitioner also filed for a of corpus writ habeas before a judge. hearing, different After a the habeas court denied petitioner’s claim that the court plea subject lacked matter jurisdiction to his to an accept plea murder due insufficient indictment. in petitions
Johnson1 were both filed the PCR and the habeas cases. The Court granted petitions a writ in certiorari both cases after the Johnson issues the PCR case had been briefed.
ISSUES I. Whether the PCR court erred finding grand larceny a is not robbery? lesser-included offense II. If the plea subject court did not have jurisdic- matter tion to accept petitioner’s plea grand larceny, peti- plea tioner’s to murder knowingly voluntarily entered? III. subject Whether the court lacked jurisdic- matter tion murder indictment since the indictment omitted “feloniously?” the words “wilfully”
DISCUSSION I court juris circuit does have an diction to convict a defendant of offense unless is an there sufficiently indictment which states the the defendant presentment, waives the offense a lesser-included offense Owens, charged the crime the indictment. State v. (2001). determining The test for an offense is lesser-included offense of another whether two greater offenses includes all the McFadden, elements the lesser offense. State v. (1988) (approving
1. Johnson appeals by following withdrawal of counsel meritless of PCR actions procedure). a certain *5 556 (2000).
629,
If
offense includes an
the lesser
Larceny involves
another,
must
against
of
which
be
goods
accomplished
Brown,
v.
State
of the other.
274
or
the consent
will without
(1979).
48,
grand larceny is
Specifically,
S.C.
anoth
carrying away
goods
of the
of
taking
the felonious
§
See S.C.Code
er,
Ann.
16-
the value exceeds
where
$200.
(1985)
goods
larceny involves stolen
whose
(stating petit
13-30
Moultrie,
v.
352,
State
$200);
S.C.
322
value
than
283
is less
(1984)
taking
(grand larceny
663
felonious
S.E.2d
another,
$200).2
of
away of
where value exceeds
carrying
goods
taking
or
of
as the felonious
unlawful
Robbery is defined
any
or
of
value from
money, goods,
property
other personal
or in his
violence or
person
presence by
of another
State v.
417,
293
Drayton,
S.C.
person
such
fear.
putting
denied,
1079,
cert.
(1987),
108
329
484 U.S.
S.Ct.
361 S.E.2d
(1988).
1060,
occurs when a
robbery
Larceny
been found
v.
robbery by this Court on several occasions. See State
Austin,
(1989)
456,
larceny
830
(petit
385 S.E.2d
Harkness,
v.
strong
robbery);
of
armed
lesser-included
(1986)
136,
of
(petit larceny
288
341
631
is lesser
S.C.
S.E.2d
Lawson,
(1983)
robbery); 249
305 S.E.2d
Brown,
of
larceny
robbery);
is lesser-included
(grand
indicating
supra
(larceny,
petit
grand,
without
whether
192
robbery); Young
lesser of
(1972) (grand larceny
See
robbery).
is lesser-included of
(in
(1979)
also State v.
Ziegler,
pled
prior
guilty in 1988
to the 1993 amendment
that
2. Petitioner
distinguished petit
larceny
grand
the dollar amount
and increased
stolen, therefore,
goods
goods
the value of
value
petitioner pled guilty
$200 or
larceny
more. See
at
time
Now,
(1985).
larceny
§
is the
S.C.Code Ann.
16-13-30
$1,000.
(Supp.
§
goods
S.C.Code Ann.
16-13-30
valued in excess
2001).
dicta, Court stated one
may
guilty
robbery
be
which
involves
larceny).3
petit
*6
Lawson,
now overrule
cases of State
Young
We
v.
State,
v. Ziegler
they
grand
v.
and State
to the extent
found
larceny to be a
of
is
robbery.
lesser-included offense
It well-
settled that
the monetary
goods
value of the
is an
taken
larceny.
State,
element of the offense of grand
See Johnson v.
62,
(1995) (grand
319 S.C.
3.
has been found to be
lesser-included offense of
124,
(1984)
robbery.
Scipio,
armed
v.
State
558 crime of armed charges
The indictment this case larceny.4 the crime of to describe robbery appears jurisdiction to However, the plea court lacked larceny because the indictment sentence all does not include charged armed which specifically Summers, v. 276 grand larceny. See State elements (1981) (conviction may be had 427 S.C. charged such specifically only from one when offense different charged only element of that offense essential all and factual elements charged legal offense includes greater offense), grounds by overruled in on other part of lesser McFadden, (2000); 539 S.E.2d (1974) (same). Fennell, also See (court Owens, subject matter does not have supra is lesser-in- to convict defendant unless offense indictment). charged in cluded offense of crime *7 subject matter plea the court lacked Accordingly, because plea grand jurisdiction accept petitioner’s guilty to to petitioner’s grand vacated larceny, properly PCR court conviction. larceny
II by finding PCR court erred his to argues plea Petitioner mur- voluntarily and entered since the knowingly murder was to grand larceny pleas pursuant der and were entered a deal.” “package murder, indicted for accesso-
Petitioner was fact, possession weapon during before the ry pled guilty commission of a violent crime. He murder and larceny. a sentence of life with eligibility The solicitor recommended in twenty charge on the murder with the parole years concurrently. plea sentence to run The court charged: 4. The indictment County ... on or That one MARCUS A. JOSEPH did Clarendon 18, 1987, weapon, deadly March while armed with a to wit: about [sic], feloniously person Magnum take from the in the Colt .357 Pistol intimidation,
presence goods of Alfred Cole means force Cole, being goods described: monies of the said Alfred such or monies approximately $700.00 cash. petitioner asked he understood that the court did whether not recommendation, have to accept the solicitor’s and petitioner he indicated so understood and still wished to plead guilty. court asked plea attorneys whether his had them; done he everything asked whether he was pleading accord; guilty of his own free will whether he was guilty; and whether he understood that he was his giving up constitu- rights tional to remain jury silent and to a trial. Petitioner yes answered questions.' these Petitioner answered no if plea anyone court asked had him promised any- thing or threatened him to acquire his and when guilty plea, he was if he asked was under the influence of alcohol or drugs. The court accepted the recommendation and sentenced peti- tioner accordingly.
At the hearing, arguments PCR were heard but petitioner did not present any testimony. The court denied petitioner’s claim that guilty his entire unknowing rendered involuntary by the trial court’s lack his accept plea to grand larceny. The PCR court stated the evidence revealed that petitioner guilty entered his know- plea freely, ingly, intelligently, and voluntarily. The court found his credible, claims to contrary not particularly where the grand larceny conviction was legal vacated due to a technicali- ty.
A
guilty plea may
be
unless it
accepted
voluntary and
into
entered
with an
of the
understanding
consequences
nature and
of the
A
charge
plea.
plea is
if
properly accepted
the record establishes it was voluntarily
Alabama,
Boykin
knowingly
made.
395 U.S.
(1969);
Carter v.
*8
S.Ct.
A defendant who enters a on the plea advice counsel attack may voluntary intelligent and character of a plea only by showing that counsel’s fell below representation objective an standard of reasonableness and that there is a that, errors, reasonable but for probability counsel’s the defen guilty dant would not have but would insisted on pled have State, going to trial. Roscoe v.
(2001). Thus, an must show both and applicant preju- error Roscoe, in a Id. In
dice to win relief PCR proceeding. noted, “[although consistently we held a defen- Court have full of the of his understanding consequences dant must have a him, against must also plea charges the defendant to be to relief on Roscoe prejudice demonstrate entitled PCR.” (internal State, at at n. 6 omitted). citations in
Petitioner has framed this issue the context of showing ineffective assistance of counsel and has not made a Regardless, case. we note court prejudice this the PCR murder into correctly guilty concluded the to was entered plea knowingly voluntarily. properly Petitioner was advised Further, charge. petitioner and sentenced on the murder failed to show induced plead guilty he was that he would pled have not murder but for the guilty See, (Court Roscoe v. Ros charge. e.g., supra denied pleas coe’s claim that all of his erroneous by were affected concerning robbery charge; advice armed found Roscoe was properly kidnapping burglary advised and sentenced on charges pleas and had failed to those offenses demonstrate any way by were affected mis-advice concerning robbery charge). that
Consequently, finding the PCR court’s know- ingly voluntarily plea entered a to murder guilty affirmed.
Ill argues juris- Petitioner court lacked diction on the omitted murder indictment since indictment “willfully” the words and “feloniously.” charged: indictment
COUNT ONE— MURDER JOSEPH, That one A. one BARBARA ANN MARCUS MAYERS and one ERROL MAYERS did Clarendon 18, 1987, County about March with afore- malice thought, shooting kill one Alfred means of him with Cole Pistol, .357 that the said did Magnum Colt Alfred Cole *9 die in County Clarendon as a proximate result thereof on or 18,1987. about March
At the habeas corpus hearing, petitioner claimed the mur- der indictment failed to state crime had been committed “wilfully” and “feloniously.” The habeas court held petitioner was not to entitled relief because the indictment was sufficient to subject confer jurisdiction matter on the plea court.
The circuit court does not have jurisdiction matter to convict a defendant of an offense unless there an indict- ment which sufficiently states the defendant waives presentment, or the is a offense lesser-included offense Owens, of the crime in State v. charged the indictment. supra. (1985) §Ann.
S.C.Code 17-19-30 provides: Every indictment for murder shall be deemed and ad- judged which, sufficient and good law in addition to setting forth the time and place, together with a plain statement, divested of all phraseology, useless of the man- ner which the caused, death of the deceased charges the defendant did feloniously, wilfully and of his malice aforethought kill and murder the deceased.
An indictment for murder
“if
is sufficient
the offense
is stated with sufficient certainty
particularity
to enable
the court to
judgment
know what
to pronounce, the defendant
answer,
to know what he is called
if
upon
an acquittal
or a conviction thereon may
pleaded
be
as a bar
any
Owens,
subsequent prosecution.” supra (citing Owens,
161,165,
275,
(1987);4
Munn,
(1987)
497,
(test
of sufficien
cy
indictment
is whether it
necessary
contains
elements of
offense intended to be charged
sufficiently
apprises defen
defend)).
dant of what he must
prepared
be
The murder
indictment was sufficient to confer sub
ject
court. As
mentioned
17-19-30,
(“on
§
the indictment set forth the time
or about
1987”)
(“in
March
and place
Clarendon
County”)
crime, and stated the manner
in which the death of the
(“kill
deceased was caused
one
Alfred Cole
means of
denied,
(1987).
4. Cert.
484 U.S.
108 S.Ct.
671 (emphasis “Wilfully” “intentionally” synonymous are terms.
Certainly, the General did not intend to burden Assembly writing murder by requiring surplus indictments words § when their intent in promulgating obvious 17-19-30 was Baucom, See simplify indictments. (all (2000) statutory
S.E.2d 922 rules of construction are legislative subservient to rule that intent must if can prevail used, be discovered and that reasonably language language statute); be in light purpose must construed of intended Comm’n, v. Lexington County Strother Recreation (cardinal (1998) 54, rule of construc- statutory intent); tion is to legislative ascertain effectuate (1930) (General Rector, Assembly S.E. 385 has indictments in criminal sought simplify cases and to do away phraseology). with useless Section 17-19-30 is a proce- dural statute not intended to alter the elements of the offense of murder.
We find the indictment was sufficient subject confer jurisdiction matter because it informed of the ele- petitioner ments of murder.
CONCLUSION find that grand larceny We is not a lesser-included offense that his plea entered to murder knowingly and and that voluntarily, court did not lack on the murder indictment. Ac- cordingly, decisions of the PCR and habeas courts are AFFIRMED.
TOAL, WALLER, J., PLEICONES, J., C.J. and concur. BURNETT, J., in a concurring separate opinion. concurring dissenting separate opinion. COUNT TWO —ARMED ROBBERY Justice PLEICONES.
I concur separately but write because I would reach the same majority, although by result as the a different approach. I agree that allege the failure to the indictment that the murder was “feloniously, wilfully, committed and of peti [the aforethought” subject malice does not create a matter tioner’s] Rector, 212, 155 defect. See State v. S.E. (1930)(purpose the 1887 revisions to criminal procedure, which currently include the statute codified at Ann. S.C.Code 17-19-30, indictments); § was to simplify see also Cheatwood, (20 S.C.L.) 459(1834)(no 2 Hill jurisdictional defect charged where elements offense in indictment using “words which are either wholly synonymous or much of the same meaning”).
I agree grand further that is not a lesser-included offense of armed it an robbery because contains element (value taken) that not an goods purported element the Elliott, greater offense. See State v. 552 S.E.2d offense). majority (2001)(test As for lesser-included all the alleges count here out, robbery” “armed points It thus larceny. robbery elements of both offenses, both jurisdiction over conferred he failed to jumbling to this right object any waived Hutto, 252 entry plea. of his object prior Cf. pursu waived 36, 165 (1968)(jumbling objection S.E.2d 72 jury § when not raised before Ann. 17-19-90 ant to S.C.Code sworn). However, judge relief vacat post-conviction since the did not and since the State larceny plea, petitioner’s grand ed order, that petitioner’s the law of the case is that appeal See, Acquisition ML-Lee e.g., is vacated. larceny conviction Touche, Fund, L.P. Deloitte & not, law of the correct or ruling, whether (1997)(unappealed case). stands, that conviction
I that murder agree petitioner’s this result falls. I that agree conviction grand larceny his charge, on the murder proceeding a new require does not a single the result of pleas fact that both were despite believe, fact, indepen- that each I bargain, because majority’s in the decision I therefore concur dently valid. orders. appealed affirm (concurring/dissenting): BURNETT
Justice entered a knowingly voluntarily agree petitioner I suffi- indictment was to murder and the murder guilty plea I jurisdiction. disagree grand to confer cient In robbery. included offense of armed larceny is not a lesser is a lesser included offense my opinion, *12 therefore, subject had and, judge the trial robbery armed guilty plea jurisdiction accept petitioner’s matter I the post-conviction would reverse larceny. Accordingly, (PCR) judge’s order. relief a to convict court has
The circuit 1) which if there is an indictment of an offense defendant 2) offense, pres- the waives the defendant sufficiently states 3) of the entment, is a lesser included offense the offense Primus, v. 349 S.C. indictment. State charged crime the (2002). when an 576, determining The test for 103 the offense of another is whether is a lesser included offense 565 greater of the two offenses includes all the elements of the Id. lesser If offense. the lesser offense includes an element which is not greater included the then the lesser Id. offense is not included in the greater offense.
Robbery is the felonious taking carrying away of the of goods against another the will or without consent of the v. Scipio, 124, other with force. 322 S.E.2d 15 (1984). robbery Armed occurs a person commits rob- bery while with a deadly Id. armed weapon. Robbery is a Id. lesser included offense of robbery.
Larceny
the felonious taking
carrying away
of the
of
goods
against
another
the will or without the consent of the
Brown,
other. State v.
48,
(1979);
274 S.C.
Relying prior which opinions state value is an element of grand larceny,1 majority concludes grand larceny is not a lesser included offense of robbery value is because not an cases, however, element of robbery. None of the cited com- pared the elements of robbery grand larceny.2 with
Instead,
the Court has already
determined that
larce-
State,
isny
a lesser included
In
Young
robbery.
offense of
383, 386,
212,
(1972),
259 S.C.
the Court noted
robbery
“basically larceny compounded
aggravated by
force used in
taking
property
from
or in
person
presence of
“larceny
another” and that
included
charge
robbery.”
“...
Accordingly,
finding
verdict
[the
guilty
of necessity,
defendant]
with it a
canie[s]
Lawson,
Id. In
finding
that he
guilty
larceny.”
266,
(1983),
279 S.C.
convict violating jeopardy. act double out of the same without arising Austin, v. of State holding precedent This contravenes Harkness, (1989), v. 385 S.E.2d Lawson, (1986), supra. larceny is subsumed Moreover, is untenable because the result robbery accomplished robbery; larceny in the offense of Brown, supra. without force. See State is a lesser included my opinion grand Because it is of the I would reverse the order offense of armed judge. PCR