Davis Adv. Sh. No. 3
S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Noah Robinson, Respondent,
v.
State of South
Carolina, Petitioner.
ON WRIT OF CERTIORARI
Appeal From Greenville County
James E. Moore, Trial Judge
Frank P. McGowan, Jr., Post-Conviction Judge
Opinion No. 24741
Submitted September 18, 1997 - Filed January 12, 1998
REVERSED
TOAL, A.J.: The Post Conviction Relief ("PCR") court granted
Respondent Noah Robinson credit for time served while in federal prison; this
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credit was calculated from the date of the affirmance of Robinson's state court
conviction. We reverse.
Factual/Procedural Background
In 1988, Robinson was indicted for murder, criminal conspiracy to
commit murder, and accessory before the fact of assault and battery with
intent to kill. In January 1989, Robinson was tried on these charges and
found guilty of accessory after the fact of a felony. The trial court declared
a mistrial on Robinson's other charges because of the failure of the jury to
return a verdict. Robinson was sentenced to ten years confinement.
Robinson filed a notice of intent to appeal and posted an appeal bond.
While out on appeal bond, he returned to Chicago. Later in 1989, Robinson
was charged in federal court with violations of the Racketeer Influenced and
Corrupt Organizations ("RICO") laws. He was subsequently convicted and
sentenced to six years in prison. In August 1992, Robinson was convicted
and sentenced to life imprisonment on additional criminal charges relating
to his involvement with the Chicago-based El Rukn street gang. The federal
sentences were to run concurrently with Robinson's state sentence. We
affirmed Robinson's state conviction in September 1991, which was during the
interim between his federal court convictions. State v. Robinson, 305 S.C.
469, 409 S.E.2d 404 (1991), cert. denied, 503 U.S. 937 (1992).
In November 1992, Robinson filed a PCR application in which he
sought to obtain credit in South Carolina for time served in federal custody
from the date we affirmed his conviction. Robinson had been exclusively in
federal custody from the date of his arrest in 1989 for RICO violations until
January 18, 1995, when he was admitted to, but deemed absent with leave
from, the South Carolina Department of Corrections ("SCDOC"). After an
evidentiary hearing, the PCR court issued an order of dismissal denying, all
of Robinson's claims. Robinson filed a Rule 59(e) Motion to Reconsider the
Order of Dismissal. After another hearing,1 the court amended its order of
dismissal, affirming the prior order, but modifying it to the extent of granting
Robinson credit for time served from the date we affirmed Robinson's state
court conviction.
The State petitioned for a writ of certiorari, which we granted to review
whether Robinson "commenced" the service of his South Carolina sentence
Federal Correctional Institution, Oxford, Wisconsin.
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when his conviction was affirmed.
Law/Analysis
S.C. Code Ann. § 24-13-40 (1989)(emphasis added). Here, we must determine
when Robinson commenced the service of his sentence. The State argues
that the PCR court erred by finding that Robinson commenced his sentence
on the date his conviction was affirmed. We agree. We hold that for
purposes of calculating credit for time served, persons released on appeal
bond commence service of their sentences when they submit to the custody
of the SCDOC, and not upon affirmance of their convictions.
In Maxey v. Maxwell, 224 S.C. 320, 78 S.E.2d 633 (1953), the habeas
corpus petitioner was convicted of burglary and assault and battery with
intent to kill. The petitioner was freed on appeal bond pending disposition
of his appeal by this Court. His convictions were affirmed on October 30,
1950, and he was committed to the state penitentiary on November 15, 1950.
In interpreting the applicable statute,2 we noted that "service of the
sentences, which was stayed by the appeal . . . , is reckoned from the date
of the commencement of the service of the sentences, which in this case was
November 15, 1950." Maxey, 224 S.C. at 330, 78 S.E.2d at 637. Therefore,
Maxey did not begin service of his sentence until six-teen days after his
conviction was affirmed -- until he submitted to the custody of the state
penitentiary. There is no reason to interpret the statute differently when the
defendant seeks credit on his South Carolina sentence for time served in the
statute. See 1952 S.C. Code of Laws § 55-11.
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custody of another sovereignty.3
The law governing the imposition of concurrent sentences requires
elaboration inasmuch as it is critical to the determination of when Robinson
"commenced" the service of his sentence. South Carolina is "without.
authority to modify or place conditions on a sentence from a foreign
jurisdiction." Clark v. State, 321 S.C. 377, 380, 468 S.E.2d 653, 655 (1996).
Correspondingly, a foreign jurisdiction is without authority to modify or place
conditions on a sentence imposed in South Carolina. Therefore, if a second
jurisdiction imposes on a convict a sentence to run concurrently with the
previously imposed sentence from another jurisdiction, it is the responsibility
of the second jurisdiction to effectuate its concurrent sentence and thus
ensure the convict receives credit for time served in both jurisdictions.4 To
achieve this result, the second jurisdiction must transfer custody of the
convict to the first jurisdiction.
In Clark v. State, 321 S.C. 377, 468 S.E.2d 653, South Carolina failed
to transport Clark to federal custody to effectuate South Carolina's imposition
of a concurrent sentence. Clark pled guilty in federal court to possession of
a sawed off shotgun. The judge sentenced him to ten years confinement.
Subsequently, Clark pled guilty to several offenses in state court. Pursuant
to a plea agreement, the judge ordered that the sentences run concurrently
with Clark's previously imposed federal sentence. However, instead of being
transported to federal custody, Clark remained in state prison. Clark then
filed a PCR petition claiming that his plea bargain was not being enforced.
We noted that "[t]he sentence of a person convicted of a federal offense
commences to run from the date on which such person is received at the
arrested in another state and awaiting extradition and trial in South
Carolina. Under S.C. Code Ann. § 24-13-40, these defendants receive credit
for this time served prior to trial and sentencing, even though it is spent in
another Jurisdiction. See State v. Dozier, 263 S.C. 267, 210 S.E.2d 225
(1974).
4 In Cobb v. State, 286 S.C. 92, 332 S.E.2d 530 (1985), Cobb was
sentenced in North Carolina for assault. He subsequently pled guilty in
South Carolina to rape. The South Carolina trial court sentenced him to 30
years in prison to be served concurrently with his North Carolina sentence.
On appeal, we held that "a South Carolina judge has authority to impose a
sentence to run concurrently with a sentence already being served in another
state." Cobb, 286 S.C. at 94, 332 S.E.2d at 531.
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penitentiary." Clark, 321 S.C. at 379, 468 S.E.2d at 655; see 18 U.S.C. §
3585(a) (1994)("A sentence to a term of imprisonment commences on the date
the defendant is received in custody . . . ."). As a result, we concluded that
"the only way to effectuate a state trial court's order that a state sentence
run concurrently with a prior federal sentence is to have the defendant
returned to federal custody to serve his federal sentence." Clark, 321 S.C. at
380, 468 S.E.2d at 655. Because Clark had not been transferred to federal
custody, he failed to receive credit against his federal sentence for the time
he served in South Carolina custody.
In State v. Furman, 288 S.C. 243, 341 S.E.2d 795 (1986), the Georgia
court neither transported Furman to South Carolina nor specified that its
sentence was to be concurrent with the previously imposed South Carolina
sentence. Furman was convicted in South Carolina for voluntary
manslaughter and sentenced to twelve years imprisonment. Pending the
disposition of his appeal, he was released. While out on appeal bond,
Furman was arrested and convicted in Georgia for murder. He served his
sentence in Georgia and was then returned to South Carolina. He filed a
PCR application to receive credit against his South Carolina sentence for the
time he spent in a Georgia prison. We held that "[i]n cases where sentences
are imposed by two different sovereignties, the sentence will run concurrently
only if so specified." Id. at 245, 341 S.E.2d at 796. Because the Georgia
court failed to specify whether the sentences were to run concurrently, we
concluded that Furman had to serve his South Carolina sentence without any
credit for serving his Georgia sentence. Furman should not be read to imply
that a convict will automatically receive credit for time served if a concurrent
sentence is specified, even though custody of the convict has not been
transferred to the first jurisdiction. Furman is overruled to the extent it
suggests that only an order specifying concurrence is required for the convict
to receive a concurrent sentence.
In the present case, the federal district court specifically stated that the
federal sentences were to be served concurrently with the state sentence.
Because the federal district court did so specify, Robinson now claims that he
is entitled to credit for the time served in federal custody from the date his
conviction was affirmed. We disagree. Although the federal district court
had the authority to impose a sentence concurrent with Robinson's prior
South Carolina sentence, 18 U.S.C. § 3584(a) (1994), the federal court could
not modify or place conditions on the previously imposed South Carolina
sentence. Instead, the Bureau of Prisons should have delivered Robinson into
South Carolina custody so that the federal court's imposition of a concurrent
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sentence could be satisfied.5 See 18 U.S.C. § 3621(b) (1994)(Bureau of
Prisons has statutory authority to designate a state correctional facility as
the convict's place of imprisonment). Had Robinson been transferred to South
Carolina custody, he would have begun the service of his state court sentence.
A convict may also receive credit for time served in another jurisdiction
by notifying the SCDOC that he is unable to personally submit to South
Carolina custody to commence the service of his sentence. Upon such
notification, the SCDOC will place a detainer on the convict. See Clark, 321
S.C. at 380 n.3, 468 S.E.2d at 655 n.3. While the convict is subject to a
South Carolina detainer, he is constructively in South Carolina custody. As
a result, a convict will receive credit for time spent in another jurisdiction
while subject to a South Carolina detainer. Because Robinson failed to
immediately notify the SCDOC of his arrest and so submit himself to South
Carolina custody, he cannot receive credit for all his time served in federal
custody. Instead, he can only receive credit for the time he has served in
federal custody since he submitted to South Carolina custody on January 18,
1995, the date he was admitted to, but deemed absent with leave from, the
SCDOC.
CONCLUSION
For the foregoing reasons, the PCR court's order is REVERSED.
FINNEY, C.J., WALLER and BURNETT, JJ., concur.
sentencing court has no authority to order that a convicted defendant be
confined in a particular facility because those decisions are within the sole
discretion of the Bureau of Prisons.).
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