Dover v. State

405 S.E.2d 391, 304 S.C. 433, 1991 S.C. LEXIS 93

• Court: Supreme Court of South Carolina
• Decided: May 6, 1991
• Docket: 23392
• Status: Published

Opinions

Toal, Justice:

In this post-conviction relief proceeding, the trial judge granted the defendant a new trial. Although we do not agree with the lower court’s reasoning, we affirm the result on other grounds appearing in the record. We find that Dover’s guilty plea was not voluntarily and knowingly made; and, therefore, Dover is entitled to a new trial.

Robert C. Dover pled guilty to 29 indictments involving various counts of grand larceny, burglary of a building, second degree burglary and petit larceny. The trial judge sentenced him as follows: 15 years for each count of second degree burglary; 10 years for each count of grand larceny; and 30 days for petit larceny. All of the sentences are to be served concurrently with the exception that the burglary and grand larceny are to be served consecutively. Therefore, his aggregate sentence is 25 years.

Although the PCR judge ruled to the contrary, we find that Dover’s plea was not voluntarily and understandingly made. The test established by Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. (2d) 274 (1969) is whether the record establishes that a guilty plea was voluntarily and understanding^ made. In order for a defendant to knowingly and voluntarily plead guilty, he must have a full understanding of the consequences of his plea. State v. Hazel, 275 S.C. 392, 271 S.E. (2d) 602 (1980). He must also have an understanding of the charges against him. State v. Lambert, 266 S.C. 574, 225 S.E. (2d) 340 (1976). To ensure that the defendant understands, the trial judge usually questions the defendant about the facts surrounding the crime and the punishment which could be imposed. See e.g., Lambert, supra.

Here, the trial judge did not ask Dover any factual questions nor question him about the possibility of a severe sentence. It was never established that Dover understood the severity of the crimes or the sentences they carried.

Furthermore, the record reveals that Dover only spoke with his court appointed attorney three times for a total amount of less than 30 minutes. The initial interview lasted five to ten minutes. It was at this meeting that the decision to plead guilty was made. Dover testified that he was led to believe that this was not a “major” case and that his sentence would not exceed ten years. Dover stated that it was his understanding that he was agreeing to a plea bargain rather than a guilty plea. The second meeting consisted of a handshake and greeting that the third meeting was on the day of the guilty plea where Dover signed the indictments.

We find that the facts of this case are very similar to those presented in Hazel. In Hazel, the defendant was never made aware of the fact that the charges against her carried a mandatory life sentence. We reversed on the grounds that she did not understand the consequences of her guilty plea.

Here, Dover was never made aware that he could be sentenced to a prison term in excess of 200 years. Based upon the evidence presented in the record, we find that Dover’s guilty plea was made in ignorance of its consequence and therefore was not voluntarily and understandingly made. Accordingly, Dover is entitled to a new trial.

Affirmed.

Harwell, Chandler and Finney, JJ., concur. Gregory, C.J., dissenting in separate opinion.