State v. Anthony

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Harry Anthony, Appellant.

Appellate Case No. 2012-206627

Appeal From York County
John C. Hayes, III, Circuit Court Judge

Unpublished Opinion No. 2014-UP-388
Submitted September 1, 2014 – Filed November 5, 2014

AFFIRMED

Appellate Defender David Alexander, of Columbia, for
Appellant.

Attorney General Alan McCrory Wilson and Assistant
Attorney General Jennifer Ellis Roberts, both of
Columbia, for Respondent.

PER CURIAM: Affirmed pursuant to Rule 220(b), SCACR, and the following
authorities:
1. As to whether the trial judge erred in denying Anthony's motion for a mistrial:
State v. George, 323 S.C. 496, 510, 476 S.E.2d 903, 911-12 (1996) ("If the trial
judge sustains a timely objection to testimony and gives the jury a curative
instruction to disregard the testimony, the error is deemed to be cured."); State v.
Patterson, 337 S.C. 215, 226, 522 S.E.2d 845, 850 (Ct. App. 1999) ("Because a
trial [judge's] curative instruction is considered to cure any error regarding
improper testimony, a party must contemporaneously object to a curative
instruction as insufficient or move for a mistrial to preserve an issue for review.");
State v. Heller, 399 S.C. 157, 174, 731 S.E.2d 312, 321 (Ct. App. 2012), cert
granted on other grounds, S.C. Sup. Ct. Order dated May 23, 2014 ("No issue is
preserved for appellate review if the objecting party accepts the judge's ruling and
does not contemporaneously make an additional objection to the sufficiency of the
curative charge or move for a mistrial.").

2. As to whether the trial judge erred in failing to recuse himself: State v. Jackson,
353 S.C. 625, 627, 578 S.E.2d 744, 745 (Ct. App. 2003) ("If there is no evidence
of judicial bias or prejudice, a judge's failure to disqualify himself will not be
reversed on appeal."); State v. Langford, 400 S.C. 421, 438, 735 S.E.2d 471, 480
(2012) ("[W]e will not presume the judge is partial simply because he was selected
by the prosecutor, for adopting such a rule would conflate[ ] the appearance of
partiality with actual partiality. In order to be entitled to relief, a defendant
therefore must establish actual partiality and prejudice on the part of the judge."
(second alteration in original) (citations and internal quotation marks omitted));
State v. Cheatham, 349 S.C. 101, 112, 561 S.E.2d 618, 624 (Ct. App. 2002)
(determining the trial judge did not need to recuse himself based on Cheatham's
accusation that "the solicitor acted improperly in choosing not to call the case
before [a different judge]" because the solicitor's actions "did not affect [the trial
judge's] ability to preside over Cheatham's case").

3. As to whether the trial judge erred in failing to give Anthony credit for time-
served while he was on house arrest: State v. Varner, 310 S.C. 264, 265, 423
S.E.2d 133, 133-34 (1992) ("In the absence of a controlling statute, the common
law requires that a convicted criminal receive the punishment in effect at the time
he is sentenced, unless it is greater than the punishment provided for when the
offense was committed. The correct penalty is the one in effect at the time of
sentencing, even if the penalty is repealed while appeal is pending. Thus, a
criminal defendant receives the benefit of punishment mitigated by legislative
amendment only when the amendment becomes effective before sentence is
pronounced." (internal citations omitted)); id. at 266, 423 S.E.2d at 134
("[P]rospective application is presumed absent a specific provision or clear
legislative intent to the contrary." (citation omitted)); S.C. Code Ann. § 24-13-40
(Supp. 2013) (containing no language about retroactive application).

AFFIRMED.1

FEW, C.J., and THOMAS and LOCKEMY, JJ., concur.

1
We decide this case without oral argument pursuant to Rule 215, SCACR.