State v. Smith

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.

Shykiem Universal Smith, Appellant.

Appellate Case No. 2018-001219

Appeal From Richland County
R. Knox McMahon, Circuit Court Judge

Unpublished Opinion No. 2020-UP-210
Submitted July 1, 2020 – Filed July 8, 2020

AFFIRMED

Appellate Defender Kathrine Haggard Hudgins, of
Columbia, for Appellant.

Attorney General Alan McCrory Wilson, Senior
Assistant Deputy Attorney General William M. Blitch,
Jr., and Solicitor Byron E. Gipson, all of Columbia, for
Respondent.

PER CURIAM: Shykiem Universal Smith pled guilty to voluntary manslaughter
and attempted armed robbery pursuant to Alford v. North Carolina, 400 U.S. 15
(1970). He was sentenced to twelve years on both counts to run concurrently.
Prior to the sentencing, plea counsel made the sentencing court aware that Smith had
been voluntarily cooperating with the State regarding charges brought against his
co-defendant. The State ultimately recommended a sentencing range of two to
twelve years on the charges.

Ten days after sentencing, Smith filed a timely motion to reconsider his sentence on
the grounds that the court allegedly "did not give sufficient consideration to Smith's
cooperation with the State in the prosecution of [his co-defendant]." Roughly six
months later, and without holding a hearing or requesting additional briefing, the
sentencing court denied Smith's motion. The court wrote its ruling on a copy of
Smith's motion to reconsider, explaining: "After consideration of all facts &
circumstances and Defendant's file; Defendant's Motion to Reconsider is Denied."

Smith argues that Rule 29(a) of the South Carolina Rule of Criminal Procedure
grants a court the discretion to either conduct a hearing or receive briefs when
considering a motion to reconsider but does not grant the court the discretion to rule
without doing at least one of those things. Smith bases his argument on a plain
reading of Rule 29(a). He contends "it is clear from [the rule] that when a party
makes a post-trial motion, the [court] shall hear the motion," and that only when
parties file briefs may the court decide the motion without oral argument.

We decline to reach Smith's argument that Rule 29(a) requires either a hearing or
briefs. Smith failed to preserve this issue for review as he never asked the sentencing
judge to hold a hearing or allow briefing. Smith could have made this request in his
initial motion or in a second motion for reconsideration after the court denied his
motion to reconsider. A basic requirement of error preservation is that the alleged
error on appeal must have been raised to the trial court. I'On, L.L.C. v. Town of Mt.
Pleasant, 338 S.C. 406, 421–22, 526 S.E.2d 716, 724 (2000).

We also note Smith presented no evidence to support a finding that he was
prejudiced by the procedure followed here. The record contains evidence that the
sentencing judge did, in fact, consider Smith's cooperation. When pronouncing the
sentence, the court specifically stated, "I have taken into account the totality of the
circumstances" and "I have taken into account [Smith's] cooperation, [and] also his
willingness to testify." Smith did not identify any reason to question or look behind
those statements.

Finally, even if we looked past error preservation, the result would be the same.
Smith's motion was the functional equivalent of a brief and the case would be
governed by the principles expressed in Pollard v County of Florence, 314 S.C. 397,
444 S.E.2d 534 (Ct. App. 1994). Pollard is factually distinguishable in that it
involved the South Carolina Rules of Civil Procedure rather than the criminal rules,
but the language of Rule 59(f) is virtually identical to the language of Rule 29(a) of
the South Carolina Rules of Criminal Procedure.

Here, while Smith's written motion was not lengthy and did not cite authorities, it
directly identified his argument—Smith requested the sentencing court reconsider
the sentence in light of his willingness to cooperate with the State. The motion
plainly stated the same argument Smith made at sentencing. As such, his motion
was the functional equivalent of a brief and neither a hearing nor briefs were
required.

For the foregoing reasons, the judgment below is affirmed.

AFFIRMED.1

LOCKEMY, C.J., and GEATHERS and HEWITT, JJ., concur.

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