Opinion
19500
October 17, 1972.
C.R. Pusser, Jr., Esq., of Chesterfield, for Appellant, cites: As to the Appellant's plea not representing a voluntary and intelligent choice among the alternative courses of action open to him and error for the trial judge to accept the plea under the evidence in view of the absence of any factual basis for the plea and the Appellant's claim of innocence: 378 U.S. 1, 84 S.Ct. 1489; 168 U.S. 532, 18 S.Ct. 183; 378 U.S. 368, 84 S.Ct. 1774; 348 U.S. 436, 86 S.Ct. 1602; 253 S.C. 513, 171 S.E.2d 699; 92 S.Ct. 759; 92 S.Ct. 431; 400 U.S. 25, 91 S.Ct. 160; 254 S.C. 444, 175 S.E. 796; 254 S.C. 61, 173 S.E.2d 374; 298 F. Supp. 1207; 397 U.S. 790, 90 S.Ct. 1458; 397 U.S. 759, 90 S.Ct. 1441; 397 U.S. 742, 90 S.Ct. 1463; 168 U.S. 532, 18 S.Ct. 183; 92 S.Ct. 495; 332 U.S. 596, at 606; 68 S.Ct. 302 at 307; 400 U.S. 25, 91 S.Ct. 160 at 169; 390 U.S. 570, 88 S.Ct. 1209; 76 Tex.Crim. R., 172 S.W. 975, 977; 369 F.2d 284, 287; 256 F. Supp. 244, 255-257; 348 Mich. 88, 81 N.W.2d 667; 26 N.J. 222, 139 A.2d 300; 80 N.M. 190, 193, 453 P.2d 211, 214; 43 Wn.2d 358, 361-364, 261 P.2d 400, 402-403; 397 U.S. at 805, 90 S.Ct., at 1458; 199 F. Supp. 569, 570. As to the sentence imposed upon the Appellant by the trial judge being the result of partiality, prejudice, oppression or corrupt motive: 220 S.C. 315, 67 S.E.2d 509; 244 S.C. 259, 136 S.E.2d 300; 222 S.C. 108, 71 S.E.2d 793; 92 S.Ct. 495; Code of Laws of South Carolina, (1962) 16-52; Code of Laws of South Carolina (1962) 16-55.
Messrs Daniel R. McLeod, Atty. Gen., Emmet H. Clair, and Robert M. Ariail, Asst. Attys. Gen., of Columbia, for Respondents, cite: As to Appellant's decision to plead guilty, following a complete disclosure of the State's case being intelligently and voluntarily entered with the advice of competent counsel: 395 U.S. 238, 23 L.Ed.2d 274, 89 S. Ct. 1709; 369 U.S. 506, 516; 8 L.Ed.2d 70, 77, 82 S.Ct. 884; 400 U.S. 25, 27 L.Ed.2d 162, 91 S.Ct. 160; 397 U.S. 742, 25 L.Ed.2d 747, 90 S.Ct. 1463. As to the Appellant's not being allowed to impeach, in collateral proceedings, his valid guilty plea by asserting that the plea was motivated by a prior coerced confession: 395 U.S. 238, 23 L.Ed.2d 274, 89 S.Ct. 1709; 254 S.C. 260, 174 S.E.2d 774; 297 U.S. 759, 25 L.Ed.2d 763, 90 S. Ct. 1441. As to a lack of any showing of abuse of discretion on the part of the trial judge as a result of alleged partiality, prejudice, oppression or corrupt motive where the sentence is within the limits prescribed by law: Section 16-55 of the South Carolina Code of Laws 1962; 220 S.C. 315, 67 S.E.2d 509; 227 S.C. 507, 88 S.E.2d 591.
October 17, 1972.
The appellant, Harvey Clark, is serving a seventeen year sentence for the crime of manslaughter, imposed on December 8, 1970, in Chesterfield County. He was indicted for having murdered one Brenda Price with a .22 caliber pistol on July 16, 1970. At his trial, after the completion of the State's case, he, on the advice of his counsel, withdrew his plea of not guilty and entered a plea of guilty to the crime of manslaughter. He was represented by Frank Cain, Esq. of the Marlboro Bar, who was retained by the appellant's father, in his behalf, in early September 1970.
Thereafter, on September 9, 1971, appellant filed an application for post-conviction relief. His present counsel was appointed by the court to represent him in this proceeding and a hearing was held on December 16, 1971, before the Honorable James A. Spruill, Resident Judge of the Fourth Circuit. His Honor thereafter issued an order dated December 29, 1971, denying appellant any relief for lack of merit in his allegations and contentions. The appeal is from such order.
Although appellant's appointed counsel has presented his contentions with zeal and ability, this Court, like the court below, is of the view that there is no merit in appellant's contentions. It appears that the appellant made certain statements to the investigating officers, both oral and written, which were incriminating and that such statements were admitted in evidence upon the trial, over the objections of appellant's counsel. His primary contention in this proceeding is that such statements were a coerced confession, in that there was, allegedly, a failure of full compliance with the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; that his plea of guilty was the product of such coerced confession and that, accordingly, such plea was not voluntarily entered.
The trial proceedings, other than the guilty plea, have not been transcribed nor does it appear that the appellant requested such for use at the hearing below. Accordingly, we do not have before us the record of the evidence heard by the trial judge in determining the voluntariness and admissibility of the incriminating statements. Upon the post-conviction hearing the appellant, as to the allegedly coerced confession, relied only on his testimony to the effect that there was not full compliance with the Miranda requirements. To the contrary, appellant's retained counsel, an attorney of nearly twenty years experience, testified that the statements made to law enforcement officers were made available to him well in advance of the trial; that he had investigated the circumstances surrounding the taking of the statements, and that while he had, for the record, objected to the admission thereof, he was satisfied from his investigation and his discussion with the appellant that such had not been taken in violation of any of his constitutional rights and that such were properly admissible in evidence. The evidence thus presented a clear issue of fact as to whether the incriminating statements were freely and voluntarily made and under circumstances entirely consistent with appellant's constitutional rights. Upon this conflicting evidence the lower court found, factually, that none of appellant's constitutional rights had been violated, and that his plea of guilty was intelligently, voluntarily and understandingly made.
Where there are issues of fact which have been decided adversely to the appellant in a proceeding such as this, we are limited in our review to a determination of whether there was evidence to sustain the findings of fact made by the hearing judge. Ross v. State, 250 S.C. 442, 158 S.E.2d 647; Dixon v. State, 253 S.C. 41, 168 S.E.2d 770; White v. State, 255 S.C. 493, 179 S.E.2d 906.
Aside from the foregoing, even if appellant's trial counsel was wrong in his assessment of appellant's confession, and its admissibility, it would not follow, per se, that such was sufficient to render the plea involuntary and entitle the appellant to disavow his plea which otherwise was knowingly, intelligently and understandingly entered. State v. Fuller, 254 S.C. 260, 174 S.E.2d 774; McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763; Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785.
Appellant seeks to have his sentence set aside and be resentenced to a lesser term. His contentions in this respect require little comment. It has long been settled that this Court has no jurisdiction on appeal to correct an allegedly excessive sentence, which is within the limits prescribed by law for the discretion of the trial judge and which is not proved to be the result of partiality, prejudice, oppression or corrupt motive. We deem it unnecessary to cite or refer to the many authorities for this well settled proposition. The record here contains no suggestion, let alone evidence, of any partiality, prejudice, oppression or corrupt motive influencing or affecting the sentence.
Affirmed.
MOSS, C.J., and LEWIS, BUSSEY, BRAILSFORD and LITTLEJOHN, JJ., concur.