THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State,        Respondent,

v.

Douglas Jackson,        Appellant.

Appeal From Aiken County
James R. Barber, III, Circuit Court Judge

Unpublished Opinion No. 2003-UP-069
Submitted January 13, 2003 � Filed January 22, 2003

AFFIRMED

Chief Attorney Daniel T. Stacey, of Columbia, for Appellant.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson and Assistant Attorney General� Melody J. Brown, all of Columbia; and Solicitor Barbara R. Morgan, of Aiken, for Respondent.

PER CURIAM:� Douglas Jackson waived presentment to the grand jury of an indictment for criminal domestic violence (CDV).� He pled guilty and was sentenced to thirty months incarceration for CDV, third offense.� He appeals his plea and sentence asserting the plea court was without subject matter jurisdiction to accept his plea.� We affirm. [1]

FACTS/PROCEDURAL BACKGROUND

Jackson was charged with CDV for striking the mother of two of his children with whom he cohabitated.� During the guilty plea hearing, the plea judge asked: �This is simple criminal domestic violence?� No, this is greater than two?�� The Solicitor responded: �Yes, sir.�� This colloquy was followed by an interchange involving the Court and Jackson:

Q All right.  You understand you can get up to 3 years in jail?

A Yes, sir.

Q And a fine of up to $3,000, you understand that?

A Yes, sir.

. . . .

Q You�re admitting that you did, in Aiken County, South Carolina, on or about March 5, 2001, commit the crime of criminal domestic violence, in that you did cause physical harm to [Victim], a family or household member, or you did offer or attempt to cause physical harm to [Victim] with the apparent present ability under circumstances reasonably creating fear of imminent peril, and that you have had prior convictions on at least two occasions of criminal domestic violence; you�re admitting those facts?

A Yes, sir.

Jackson indicated that he intended to waive presentment.� Thereafter, the following exchange occurred:

Q Mr. Jackson, there�s a sheet here that purportedly has your signature on it which indicates that you want to waive presentment, is that your signature?

A Yes, sir.

The judge sentenced Jackson to thirty months incarceration.� No objection was made to the sentence.

LAW/ANALYSIS

Jackson contends the trial court lacked subject matter jurisdiction to accept his guilty plea to CDV, third offense, because he waived presentment of an indictment only on CDV.� We find the argument to be without merit.

Issues related to subject matter jurisdiction may be raised at any time.� Browning v. State, 320 S.C. 366, 465 S.E.2d 358 (1995).� No person shall be held to answer for any crime unless on a presentment or indictment of a grand jury.� S.C. Const. art. I, � 11; State v. Beachum, 288 S.C. 325, 342 S.E.2d 597 (1986).� �Except for certain minor offenses, the circuit court does not have subject matter jurisdiction to accept a guilty plea unless there is an indictment which sufficiently states an offense, the defendant has waived presentment, or the charge is a lesser included offense of the crime charged in the indictment.�� Browning, 320 S.C. at 368, 465 S.E.2d at 359.� In order for a defendant to waive presentment to the grand jury, certain statutory requirements must be met.� See S.C. Code Ann. �� 17-23-130 to -140 (1985).� By their plain language, sections 17-23-130 and -140 make a written waiver of presentment of indictments not presented to a grand jury mandatory before the trial judge can accept the plea.� Summerall v. State, 278 S.C. 255, 294 S.E.2d 344 (1982).

�An indictment is sufficient if the offense is stated with sufficient certainty and particularity to enable the court to know what judgment to pronounce, and the defendant to know what he is called upon to answer and whether he may plead an acquittal or conviction thereon.�� Carter v. State, 329 S.C. 355, 362-63, 495 S.E.2d 773, 777 (1998).� Where a statute increases the punishment for a second or subsequent offense, the allegation that the offense charged in the indictment was of that character is unnecessary.� State v. Parris, 89 S.C. 140, 71 S.E. 808 (1911); State v. Scriven, 339 S.C. 333, 529 S.E.2d 71 (Ct. App. 2000).

In Scriven, this Court considered whether the trial court can sentence a person convicted of violating S.C. Code Ann. � 44-53-370 as a third offender when the indictment did not give him notice of the sentence enhancement by alleging his prior offenses.� Id.� The Court concluded that the sentence enhancement was not an element of the offense.� Id.� The Court further held:

The indictments advised Scriven of the elements of the charged offenses and the factual allegations which supported them.� They stated the offenses with sufficient certainty and particularity to enable the court to know what judgment to pronounce, and the defendant to know what he was called upon to answer and whether he could plead an acquittal or conviction thereon.� Consequently, the court had subject matter jurisdiction to sentence Scriven as a third offender.

Id. at 338-39, 529 S.E.2d at 74.

In the instant case, Jackson was charged with CDV.� The indictment properly charges the elements of CDV as found in S.C. Code Ann. � 16-25-20 (Supp. 2001).� Jackson agreed to waive the presentation of the indictment to the grand jury.� On the sentencing form, Jackson waived presentment in writing.� The form contains a box, which is checked by an �X,� next to the phrase, �Defendant Waives Presentment to Grand Jury.�� Below this phrase is Jackson�s signature.� The form states that Jackson pled guilty to CDV �in violation of [S.C. Code Ann.] � 16-25-30.�� Section 16-25-30 provides: �Any person who violates Section 16-25-20 is guilty of the misdemeanor of criminal domestic violence and, upon conviction, must be fined not more than five hundred dollars or imprisoned not more than thirty days.�� S.C. Code Ann. � 16-25-30 (Supp. 2001).

However, the enhancement provision is in S.C. Code Ann. � 16-25-40 (Supp. 2001), and reads: �Any person who violates Section 16-25-20 after having previously been convicted of two violations of Section 16-25-20 . . . is guilty of a misdemeanor and, upon conviction, must be fined not more than three thousand dollars or imprisoned not more than three years, or both.�� The enhancement provision relates solely to sentencing and is not an element of the crime of CDV.� See Carter v. State, 329 S.C. 355, 495 S.E.2d 773 (1998) (although � 44-53-375 provides that a violation of � 44-53-370 involving methamphetamine (crank) carries a greater sentence than the sentence provided for in � 44-53-370 for other Schedule II drugs, section 44-53-375 does not define a separate crime but only provides an enhanced punishment).

The indictment upon which Jackson was charged properly stated the offense with sufficient certainty and particularity to enable the court to know what judgment to pronounce, and the defendant to know what he was called upon to answer.� The trial judge, therefore, had subject matter jurisdiction to accept a guilty plea to the charge of CDV and could consider Jackson�s prior offenses in sentencing him as a third offender under section 16-25-40.

Concomitantly, Jackson may not challenge the sentence imposed.� As he failed to object at the time of the sentencing, the issue is not properly preserved for review on appeal.� See State v. Johnston, 333 S.C. 459, 462, 510 S.E.2d 423, 425 (1999) (noting Supreme Court �has consistently held that a challenge to sentencing must be raised at trial, or the issue will not be preserved for appellate review.�).� Additionally, the plea judge specifically advised Jackson that he �had prior convictions on at least two occasions of criminal domestic violence.�� The judge informed Jackson that he faced a maximum sentence of three years incarceration.� Jackson acknowledged this was his third offense and stated that he understood his possible sentence.� He agreed to plead guilty only after being properly advised by the plea judge.

CONCLUSION

We find the indictment charging Jackson with CDV properly conferred subject matter jurisdiction on the court to enable the judge to accept a plea to CDV.� Section 16-25-40 provides for enhanced punishment for a third offense, of which Jackson was properly advised during his plea.� We conclude the indictments fully informed Jackson of the offense with which he was charged.� Furthermore, because Jackson was subject to the enhanced penalty provisions for a third conviction, the plea court properly considered his prior convictions at the time of sentencing.

AFFIRMED.

HEARN, C.J., CURETON, and ANDERSON, JJ., concur.