/opinions/HTMLFiles/SC/25884.htm

THE STATE OF SOUTH CAROLINA
In The Supreme Court

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The State,        Respondent,

v.

William E. Downs, Jr.,        Appellant.

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Appeal From Aiken County
L. Casey Manning, Circuit Court Judge

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Opinion No. 25884
Heard September 21, 2004 - Filed October 25, 2004

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AFFIRMED

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Assistant Appellate Defender Robert M. Dudek, and Jeffrey P. Bloom, both of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, all of Columbia; and Solicitor Barbara R. Morgan, of Aiken, for Respondent.

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JUSTICE PLEICONES: This is a death penalty case. Appellant pleaded guilty to murder, kidnapping, and first-degree criminal sexual conduct with a minor. With respect to the murder, the circuit court found the following aggravating circumstances: Appellant committed the murder while in the commission of criminal sexual conduct; Appellant committed the murder while in the commission of a kidnapping; and Appellant murdered a child eleven years old or younger. The circuit court sentenced Appellant to death. [1] This opinion consolidates Appellants direct appeal and the sentence review required by S.C. Code Ann. 16-3-25 (2003). We affirm.

FACTS

The victim, a six-year-old boy, was taken into a wooded area of a park, raped, and strangled to death. After newspapers reported the murder, Appellant told his sister that he had committed the crime. Appellants sister reported this to the police and disclosed Appellants location. The police found and detained Appellant, and he confessed.

Appellant was charged with murder, kidnapping, and first-degree criminal sexual conduct with a minor. At the plea hearing, Appellant expressed the desire to plead guilty but was uncertain whether he wanted to later present evidence that he was mentally ill at the time of the crime (guilty but mentally ill or GBMI). [2] Appellant never suggested that he wanted to plead guilty only if found mentally ill. Rather, Appellant repeatedly stated that he knew he wanted to admit guilt. Moreover, Appellant claimed to understand that if he were to present evidence of mental illness and the court were to find him GBMI, death would remain a possible sentence. [3]

The court proceeded with the hearing on the guilty plea while permitting Appellant to defer the decision whether to claim mental illness. Upon the courts inquiry Appellant claimed to understand that by pleading guilty he waived his right to a jury trial on both guilt and sentencing. When the judge asked if Appellant wanted to impanel a jury, admit guilt, and ask the jury to decide the sentence, Appellant answered in the negative. The court accepted Appellants guilty plea as voluntarily, knowingly, and intelligently entered.

At a later hearing, Appellant did present evidence that he was mentally ill when the crime occurred. An expert testified that Appellants mental condition rendered him unable to conform his conduct to the requirements of the law, that is, he was mentally ill. Two other experts testified that Appellant was not mentally ill, that he could so conform his conduct. After considering the evidence, the court ruled that Appellant failed to prove he was GBMI. [4]

At sentencing the court found the three aggravating circumstances stated above. In addition, even though Appellants attorneys represented that Appellant had instructed them to neither offer any mitigation to the court nor argue to the court for a sentence of life without parole, the court found four mitigating circumstances. [5] After considering both sets of circumstances, the court sentenced Appellant to death.

ISSUES

1.  Whether Appellants guilty plea was an invalid conditional plea.
   

2. Whether Appellant had a right to a jury trial on sentencing of which he was deprived.
   

3. Whether the circuit court lacked subject matter jurisdiction to sentence Appellant to death because the indictment did not allege aggravating circumstances.

ANALYSIS

I. The Plea

Appellant claims his guilty plea was a conditional plea and therefore invalid. We disagree.

In South Carolina, guilty pleas must be unconditional. State v. Peppers, 346 S.C. 502, 504, 552 S.E.2d 288, 289 (2001); State v. OLeary, 302 S.C. 17, 18, 393 S.E.2d 186, 187 (1990); State v. Truesdale, 278 S.C. 368, 370, 296 S.E.2d 528, 529 (1982). If an accused attempts to attach any condition or qualification to a guilty plea, then the trial court should direct a plea of not guilty. Truesdale, 278 S.C. at 370, 296 S.E.2d at 529. If the trial court accepts a conditional guilty plea, then the plea will be vacated on appeal. Peppers, 346 S.C. at 505, 552 S.E.2d at 290.

Appellant asserts his plea was conditional because he pleaded guilty while deferring the decision whether to present evidence of mental illness. Appellant argues the potential of being found mentally ill constituted a condition attached to his plea. We disagree.

Appellant never attempted to reserve the right to later deny his guilt. He reserved the right only to present evidence that he committed the crime while mentally ill. Guilty but mentally ill is still guilty. See S.C. Code Ann. 17-24-70 (2003) (requiring that a GBMI defendant be sentenced as guilty); see also State v. Hornsby, 326 S.C. 121, 126, 484 S.E.2d 869, 872 (1997) (noting that a finding of GBMI does not absolve a defendant of guilt). The difference between guilty and GBMI pertains only to post-sentencing medical treatment. See S.C. Code Ann. 17-24-70 (2003). Appellants guilty plea was unconditional.

II. The Sentencing Procedure

Appellant asserts Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L.Ed.2d 556 (2002), renders unconstitutional the requirement in S.C. Code Ann. 16-3-20(B) (2003) that the sentencing proceeding be held before the judge when a defendant pleads guilty to murder. We disagree.

The capital-sentencing procedure invalidated in Ring does not exist in South Carolina. Arizonas statute required the judge to factually determine whether there existed an aggravating circumstance supporting the death penalty regardless whether the judge or a jury had determined guilt. Ariz. Rev. Stat. 13-703(C) (2001) (amended 2002); Ring, 536 U.S. at 597, 122 S. Ct. at 2437, 153 L.Ed.2d at 569. In South Carolina, conversely, a defendant convicted by a jury can be sentenced to death only if the jury also finds an aggravating circumstance and recommends the death penalty. S.C. Code Ann. 16-3-20(B) (2003); Sheppard v. State, 357 S.C. 646, 652, 594 S.E.2d 462, 466 (2004).

In any event, Ring did not involve jury-trial waivers and is not implicated when a defendant pleads guilty. Other courts have also reached this conclusion. See, e.g., Leone v. Indiana, 797 N.E.2d 743, 749-50 (Ind. 2003); Colwell v. Nevada, 118 Nev. 807, 59 P.3d 463, 473-74 (Nev. 2003); Illinois v. Altom, 338 Ill.App.3d 355, 362, 788 N.E.2d 55, 61 (Ill. App. 5 Dist. 2003), app. denied, 203 Ill.2d 663, 792 N.E.2d 308 (Ill. 2003).

Appellant was informed that by pleading guilty he waived his right to a jury trial on both guilt and sentencing. He does not argue his waiver was made involuntarily, unknowingly, or unintelligently. See Burnett v. State, 352 S.C. 589, 576 S.E.2d 144 (2003) (discussing waivers of constitutional rights). Appellant was not deprived of his right to a jury trial.

III. The Indictment

Appellant argues the circuit court lacked subject matter jurisdiction to sentence him to death because the indictment charging him with murder [6] did not allege an aggravating circumstance. [7] Appellant did not challenge the indictment below, but subject matter jurisdiction may be raised at any time, including on appeal. See Koon v. State, 358 S.C. 359, 365, 595 S.E.2d 456, 459 (2004). We disagree with Appellant on the merits.

Appellant asserts Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, supra, mandate that indictments in state capital cases allege aggravation. Appellant is incorrect. The Court expressly noted in both Apprendi and Ring that the cases did not involve challenges to state indictments. Apprendi, 530 U.S. at 477, 120 S. Ct. at 2356, 147 L.Ed.2d at 447 n. 3; Ring, 536 U.S. at 597, 122 S. Ct. at 2437, 153 L.Ed.2d at 569 n. 4. More important, the Fourteenth Amendment has not been construed to incorporate the Fifth Amendments Presentment or Indictment Clause. See Apprendi, 530 U.S. at 477, 120 S. Ct. at 2356, 147 L.Ed.2d at 447 n. 3; Ring, 530 U.S. at 597, 122 S. Ct. at 2437, 153 L.Ed.2d at 569 n. 4; Alexander v. Louisiana, 405 U.S. 625, 633, 92 S. Ct. 1221, 1226-27, 31 L.Ed.2d 536, 543-44 (1972); Hurtado v. California, 110 U.S. 516, 534-35, 4 S. Ct. 111, 120-21, 28 L.Ed. 232, 238 (1884). State law governs indictments for state-law crimes.

Under South Carolina law, aggravating circumstances need not be alleged in an indictment for murder. S.C. Code Ann. 17-19-30 (2003); State v. Butler, 277 S.C. 452, 456-57, 290 S.E.2d 1, 3-4 (1982) (subsequent history omitted). The aggravating circumstances listed in S.C. Code Ann. 16-3-20(C)(a) (2003) are sentencing factors, not elements of murder. See Butler, 277 S.C. at 456-67, 290 S.E.2d at 3-4. The circuit court had subject matter jurisdiction to sentence Appellant to death.

SENTENCE REVIEW

The Court must conduct a proportionality review of Appellants death sentence based on the record. S.C. Code Ann. 16-3-25(A) (2003). In conducting the review, the Court considers similar cases in which the death penalty has been upheld. See S.C. Code Ann. 16-3-25(E) (2003).

We find Appellants death sentence was not the result of passion, prejudice, or any other arbitrary factor, and the evidence supports the trial judges findings of aggravation. See S.C. Code Ann. 16-3-25(C) (2003). Further, in relation to sentences in similar cases, Appellants was neither excessive nor disproportionate to his crime. See State v. Passaro, 350 S.C. 499, 567 S.E.2d 862 (2002); State v. Stokes, 345 S.C. 368, 548 S.E.2d 202 (2001); State v. Rogers, 338 S.C. 435, 527 S.E.2d 101 (2000); State v. Rosemond, 335 S.C. 593, 518 S.E.2d 588 (1999); State v. Charping, 333 S.C. 124, 508 S.E.2d 851 (1998), cert. denied, Charping v. South Carolina, 527 U.S. 1007, 119 S. Ct. 2345, 144 L.Ed.2d 241 (1999); State v. Conyers, 326 S.C. 263, 487 S.E.2d 181 (1997).

CONCLUSION

Appellants guilty plea was not a conditional plea, and Appellant was not deprived of his right to a jury trial. In addition, the circuit court had subject matter jurisdiction to sentence Appellant to death. Finally, the punishment was proportionate to the crime. Appellants guilty plea and sentence are

AFFIRMED.

TOAL, C.J., MOORE, WALLER and BURNETT, JJ., concur.

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