S.E. 2d
s
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Timothy James Pittman, Respondent,
v.
State of South Carolina, Petitioner.
ON WRIT OF CERTIORARI
Appeal From York County
Frank Eppes, Trial Judge
John C. Hayes, III, Post-Conviction Judge
Opinion No. 25025
Submitted October 20, 1999 - Filed December 6, 1999
AFFIRMED
Attorney General Charles M. Condon, Chief Deputy
Attorney General John W. McIntosh, Assistant Deputy
Attorney General Teresa A. Knox, and Assistant
Attorney General J. Benjamin Aplin, all of Columbia, for
petitioner.
Assistant Appellate Defender Melody J. Brown, of South
Carolina Office of Appellate Defense, of Columbia, for
respondent.
TOAL, A.J.: The State appeals the post-conviction relief ("PCR")
court's order granting Timothy Pittman ("Pittman") a new trial. We affirm.
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PITTMAN v. STATE
Pittman was indicted for assault and battery with intent to kill ("ABIK"),
possession of a gun during the commission of a violent crime, armed robbery, and
criminal conspiracy. Pittman pled guilty as charged to all indicted offenses. The trial
court sentenced Pittman to confinement for a cumulative period of twenty years.
Pittman then filed a PCR application. He alleged that an involuntary guilty plea and
ineffective assistance of counsel rendered his custody unlawful.
Entering a guilty plea results in a waiver of several constitutional rights,
therefore the Due Process Clause requires that guilty pleas are entered into
voluntarily, knowingly, and intelligently by defendants. Boykin v. Alabama, 395
U.S. 242, 89 S. Ct. 1709 (1969). The United States Supreme Court has held that
before a court can accept a guilty plea, a defendant must be advised of the
constitutional rights he or she is waiving. Id. Specifically, a defendant must be
aware of the privilege against self incrimination, the right to a jury trial, and the
right to confront one's accusers. This Court considered the requirements of a
voluntary and knowing guilty plea in, State v. Hazel, 275 S.C. 392, 271 S.E.2d 602
(1980) and Dover v. State, 304 S.C. 433, 405 S.E.2d 391 (1991). In addition to the
requirements of Boykin, a defendant entering a guilty plea must be aware of the
nature and crucial elements of the offense, the maximum and any mandatory
minimum penalty, and the nature of the constitutional rights being waived. Id.
When determining issues relating to guilty pleas, the court will consider the
entire record, including the transcript of the guilty plea, and the evidence presented
at the PCR hearing. Harres v. Leeke, 282 S.C. 131, 318 S.E.2d 360 (1984).
However, in this case, the transcript of Pittman's guilty plea on its face provides
enough evidence to hold Pittman's plea was not voluntary or knowing. A
defendant's knowing and voluntary waiver of the constitutional rights which
accompany a guilty plea "may be accomplished by colloquy between the Court and
the defendant, between the Court and defendant's counsel, or both." State v. Ray,
310 S.C. 431, 437, 427 S.E.2d 171, 174 (1993).
Although the trial court is not required to direct defendants attention to each
right and obtain a separate waiver, the record should indicate the defendant was
fully aware of the consequences of his guilty plea. State v. Lambert, 266 S.C. 574,
225 S.E.2d 340 (1976). In Pittman's case, the trial judge did not affirmatively ask
him for an admission of guilt. The transcript also indicates the trial judge did not
advise Pittman of the crucial elements of the charged offenses. Furthermore, the
court's failure to inform Pittman that the armed robbery charge carried a
mandatory minimum sentence of ten years, seven without the possibility of parole,
renders the plea involuntary. See 22 C.J.S. Criminal Law 404 (1989) ("prior to
accepting a plea of guilty . . . the court is required to advise accused of the range of
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PITTMAN v. STATE
punishment attached to the offense charged such as . . . the minimum sentence.").
This case is similar to Hazel, supra, where we found a defendant's plea involuntary
since she was never informed of the mandatory minimum sentence required by her
guilty plea. See also Brown v. State, 306 S.C. 381, 412 S.E.2d 399 (1991) (holding
a judge's misinformation to defendant about required time in jail before parole
eligibility invalidated voluntary nature of guilty plea). In the current case, the judge
informed Pittman of the maximum sentences which could be imposed, but the
mandatory minimum was only mentioned in passing by the prosecutor near the end
of the hearing.1
In addition, Pittman did not fully understand the nature of the constitutional
rights being waived. Pittman's testimony at the PCR hearing was uncontradicted
in that he met with his attorney only twice for approximately twenty minutes each.
See Dover, 304 S.C. at 435, 405 S.E.2d at 392 ("It was never established the
[defendant] understood the severity of the crimes or the sentences they carried. . .
the record reveals that [defendant] only spoke with his court appointed attorney
three times for a total amount of less than 30 minutes."). Pittman's attorney had
little recollection of the exact nature of matters discussed during meetings with the
Defendant. Although Pittman signed a "checklist for guilty plea," the date on this
document is one month prior to the court appearance and entrance of the guilty
plea. The list does not include the crimes Pittman was charged, the elements of the
charged crimes, or a statement about mandatory minimum penalties. Furthermore,
these defects were not cured by information provided at the guilt plea proceeding.
See Moorehead v. State, 329 S.C. 329, 496 S.E.2d 415 (1998); Wolfe v. State, 326
S.C. 158, 485 S.E.2d 367 (1997).
The transcript of the guilty plea in this case speaks for itself. The trial judge
did not ask Pittman if he was guilty of the charged offenses. The court failed to
inform Pittman of the mandatory minimum sentence carried by the armed robbery
charge. In addition, the trial court's lack of questions to ensure Pittman's
understanding of the consequences of his plea, coupled with the trial court and
attorney's failure to explain the elements charged, further indicates Pittman's plea
was not voluntary, intelligent, and knowing.
1The solicitor stated, during his statement to the judge concerning events
surrounding the incident, "I would like to remind the court that as to the armed
robbery, your honor, there is a minimum of ten years, seven of which must be
served without parole."
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PITTMAN v. STATE
Conclusion
The PCR court's order granting Pittman a new trial is affirmed.
Finney, C.J., Moore, Waller and Burnett, JJ., concur.
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