State v. Brown

SCREENING REPORT

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

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The State,

Respondent,

v.

Bobby Joe Brown # 2,

Appellant.

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Appeal From Abbeville County

 Wyatt T. Saunders, Jr, Circuit Court
Judge

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Unpublished Opinion No.2003-UP-641

Submitted August 20, 2003 – Filed November
4, 2003  

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VACATED

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Chief Attorney Daniel T. Stacey, of Columbia, for Appellant

Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson,
all of Columbia;  and Solicitor William Townes Jones, of Greenwood, for Respondent.

PER CURIAM:  Bobby Joe Brown pled guilty
to two counts of distribution of crack cocaine.   He was sentenced to eight
years imprisonment, to be served concurrently with each other and with his other
sentence for possession with intent to distribute.   He appeals his plea and
sentence as to one of the counts of distribution.  We vacate that conviction.

FACTUAL/PROCEDURAL HISTORY

            While under video and audio surveillance,
a confidential informant (CI) for the Abbeville County Sheriff’s Department
conducted a controlled purchase of crack cocaine from Brown on March 29, 2001. 
The CI conducted another controlled purchase of crack cocaine from Brown on
March 31, 2001.    Brown was indicted for distribution of crack cocaine for
his actions on March 31, 2001, in indictment number 158.   With regard to the
controlled purchase on March 29th, indictment number 159 charged
Brown with PWID crack cocaine.  

            At the beginning of the guilty plea
proceeding, the solicitor informed the trial judge that indictment 159 incorrectly
charged Brown with PWID and should have read distribution.  Noting that distribution
and PWID are within the same statute, the solicitor moved to amend the indictment. 
Brown’s counsel consented to the amendment as a condition of the negotiated
plea.  The trial judge allowed the amendment, and the language on indictment
159 stating that Brown “possess[ed] with intent to” was struck, leaving only
the word “distribute” on the indictment.   The trial judge initialed above the
change and wrote the date and the words “on motion and consent.”   The parties
did not discuss waiver of presentment of the indictment, nor did Brown indicate
he was waiving presentment when he signed the guilty plea portion of the original
indictment.

The plea proceeding continued, and the trial judge
found Brown’s pleas to two counts of distribution were knowingly and voluntarily
entered after he was informed of his trial rights waived by the plea and the
possible sentences he faced.   The trial judge sentenced Brown to eight years
on each indictment as recommended by the State.  Brown appeals.

ISSUE

Whether the trial court had subject matter jurisdiction to
accept the guilty plea on one of the indictments where the indictment was amended
from possession with intent to distribute (PWID) to distribution?

DISCUSSION

            Brown argues the amendment from PWID
to actual distribution materially changed the indicted offense such that the
trial court lost subject matter jurisdiction.  The State argues the change had
no practical effect because PWID and distribution are located within the same
statutory section.  Thus, the State argues, Brown was essentially pleading guilty
to the same offense and the trial court had subject matter jurisdiction.

            The trial court has subject matter
jurisdiction if (1) there has been an indictment that sufficiently states the
offense; (2) the defendant waives the indictment; or (3) the charge is a lesser-included
offense of the indicted charge.  State v. Primus, 349 S.C. 576, 564 S.E.2d
103 (2002); State v. Lynch, 344 S.C. 635, 545 S.E.2d 511 (2001). 

An indictment is sufficient if the offense is stated with
sufficient certainty and particularity to enable the court to know what judgment
to pronounce, and the defendant to know what he is called upon to answer and
whether he may plead an acquittal or conviction thereon.  The true test of the
sufficiency of an indictment is not whether it could be made more definite and
certain, but whether it contains the necessary elements of the offense intended
to be charged and sufficiently apprises the defendant of what he must be prepared
to meet. 

Browning v. State, 320 S.C. 366, 368, 465
S.E.2d 358, 359 (1995); State v. Williams, 346 S.C. 424, 431-32, 552
S.E.2d 54, 58 (Ct. App. 2001); S.C. Code Ann § 17-19-20 (2003).  Indictments
may be amended provided “such amendment does not change the nature of the offense
charged.”  S.C. Code Ann. § 17-19-100 (2003); Lynch, 344 S.C. at 639,
545 S.E.2d at 513.  Subject matter jurisdiction may not be waived, “even by
consent of the parties.”  Hooks v. State, 353 S.C. 48, 53, 577 S.E.2d
211, 214 (2003).  Lack of subject matter jurisdiction can be raised at any time. 
State v.Ervin, 333 S.C. 351, 510 S.E.2d 220 (Ct. App. 1998).

            In Lynch, the defendant was indicted
for first degree burglary for entering a dwelling with the intent to commit
a crime therein, “during the hours of darkness.”  At the beginning of trial,
the trial court allowed the State to amend the indictment to change the aggravating
circumstance from “during the hours of darkness,” to “did cause physical injury
to a person who is not a participant in the crime while defendant was effectuating
entry or while in the dwelling or in immediate flight.”  Both aggravating circumstances
were found within the burglary statute, S.C. Code Ann. § 16-11-311(A)(1)(b)
and (A)(3) (Supp. 2000).  Our Supreme Court held the amendment deprived the
trial court of subject matter jurisdiction because it was a material change
to what the defendant was called upon to answer.  Lynch, 344 S.C. at
640-41, 545 S.E.2d at 514.

            The amendment in the present case is
similar to that in Lynch.  Indictment 159 originally charged Brown with
PWID in violation of S.C. Code Ann. § 44-53-375(B) (2002).  This section provides
that a person who “manufactures, distributes, dispenses, delivers, purchases,
or otherwise aids, abets, attempts, or conspires to manufacture, distribute,
dispense, deliver, or purchase, or possesses with intent to distribute,
dispense, or deliver ice, crank, or crack cocaine . . .” is guilty of a felony. 
S.C. Code Ann. § 44-53-375(B) (2002) (emphasis added).  Although criminalized
within the same statute, possession with intent to distribute and distribution
of crack cocaine are separate offenses.  See State v. Brown, 319
S.C. 400, 406, 461 S.E.2d 828, 831 (Ct. App. 1995) (“Both distribution of crack
cocaine and possession with intent to distribute are criminalized in the same
subsection, and both carry a maximum sentence of fifteen years and a fine of
at least $25,000 for a first time offender.”).  The elements of distribution
of crack include: (1) the defendant had actual control over the crack; (2) the
defendant knowingly distributed or delivered the crack; (3) the substance was
later determined to actually be crack upon analysis; and (4) the offense occurred
in the county where he was charged.  State v. Gill, 355 S.C. 234, 584
S.E.2d 482 (Ct. App. 2003).      

Although distribution and PWID are listed within
the same statute, distribution is a different offense than PWID.  Thus, the
amendment materially changed what Brown was called to answer.  Accordingly,
the trial court lacked subject matter jurisdiction to accept Brown’s plea on
indictment number 159.  Further, Brown’s consent to the amendment does not waive
the court’s lack of subject matter jurisdiction. 

CONCLUSION

           
The trial court lost subject matter jurisdiction when it allowed the amendment
of indictment 159 from PWID to distribution.  Accordingly, Brown’s conviction
on that indictment is

            VACATED.

            HEARN, C.J., CONNOR and ANDERSON,
JJ., concur.