State v. Morris

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

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State,       
Respondent,

v.

Bruce S. Morris,       
Appellant.

Appeal From Spartanburg County

Larry R. Patterson Circuit Court Judge

Unpublished Opinion No. 2004-UP-318

Submitted March 19, 2004 – Filed May
13, 2004   

AFFIRMED

Assistant Appellate Defender Aileen P. Clare, Office of Appellate
Defense, of Columbia, for Appellant.

Legal Counsel J. Benjamin Aplin, South Carolina Department
of Probation, Parole and Pardon Services, of Columbia, for Respondent.

PER CURIAM:  Bruce S. Morris appeals, contending
the sentencing court relied on invalid considerations in revoking his probation
for breach of the conditions of probation.  We affirm.1

BACKGROUND

Following Morris’ pleas on February 28, 2002, to
two separate indictments for financial identity fraud, the Honorable Gary E.
Clary sentenced Morris to two concurrent ten-year terms of imprisonment, suspended
the sentences, and placed him on probation for five years.  Several months later,
in October 2002, Morris appeared before the Honorable John Few, charged with
violating the terms of his probation.  Judge Few found him in violation of several
conditions and special conditions, but continued Morris’ probation as long as
he either maintained full-time employment or was a full-time college student.  

On May 30, 2003, Morris appeared before the Honorable
Larry R. Patterson, again charged with violating the conditions of his probation. 
More specifically, the probation citations charged him with (1) failing to report
as instructed; (2) failing to pay supervision fees arrearage; (3) failing to
pay court-ordered costs and assessments arrearage; (4) failing to pay restitution
arrearage; and (5) failing to follow the advice and instruction of the supervising
agent.  Judge Patterson revoked Morris’ probation and reinstated the original
ten-year sentences.  He later denied Morris’ motion to reconsider the revocation.

FACTS

At the revocation hearing, the probation
officer listed the conditions of Morris’ probation that he allegedly violated. 
Among other things, he reported that Morris had paid “nine hundred dollars on
restitution to date, leaving him with [an] arrearage of $465.00, and a balance
of $6,680.97.”  Afterward, Jack Millwood, the victim of one of Morris’ financial
identity fraud transactions for which Morris was convicted, addressed Judge
Patterson and expressed dissatisfaction with the criminal justice system and
the manner in which it had handled the case.  The victim in the other case,
Joseph A. Nyitray, did not attend the hearing. 

For his part, Morris’ attorney related Morris had
a full-time job and had recently paid $1,500 in college tuition. 

At the end of the hearing, Judge Patterson
said, “[Morris] should of [sic] paid this man his money that he stole
from him rather than paying the college tuition.  I’m revoking it in full.” 
Morris thereafter moved Judge Patterson to reconsider his action, claiming “significant
factual and legal matters” either not considered or not fully considered by
him warranted the revocation order being vacated or modified.

A subsequent hearing on the motion to
reconsider left the revocation intact.  Judge Patterson said he had based the
order of revocation on Morris’ failure to report and his choice to pay college
tuition rather than satisfy his restitution obligation.2 

LAW/ANALYSIS

The decision to revoke probation is addressed
to the sound discretion of the sentencing judge.  State v. Hamilton,
333 S.C. 642, 511 S.E.2d 94 (Ct. App. 1999). 

We cannot say, based on the record before
us, that the sentencing judge abused his discretion in this instance.  Morris’
basic complaint on appeal is that he “owed nothing to . . . Millwood at the
time of his revocation hearing.” Nothing in the record, however, supports this
assertion other than defense counsel’s own statement, which he made in argument
at the sentence reconsideration hearing, that “the court may have based its
decision, in whole or in part, on a mistaken belief that [Millwood] . . . was,
in fact, the victim who was aggrieved by the alleged failure to pay restitution
as ordered.”  Certainly, no evidence supports it.  Cf. McManus v.
Bank of Greenwood, 171 S.C. 84, 171 S.E. 473 (1933) (stating a court cannot
consider statements of fact appearing only in argument of counsel).

Moreover, the sentencing judge’s statement that
“[Morris] should have paid this man his money that he stole from him rather
than paying the college tuition” did not identify Millwood as the victim aggrieved
by Morris’ failure to pay restitution and could just as well have referred to
Nyitray.  As we read the sentencing judge’s remarks, he simply expressed concern
that Morris chose to pay his college tuition rather than pay toward the amount
he owed in restitution, a sum that totaled $6,680.97 on the date of the probation
revocation hearing and of which sum he owed $465.00 in arrears.

We do not reach the issue of whether the
sentencing judge’s finding that Morris had failed to report as instructed, a
finding Morris does not challenge on appeal, alone would support the sentencing
judge’s decision to revoke Morris’ probation.         

AFFIRMED.

GOOLSBY, HOWARD, and BEATTY, JJ., concur.

1 
Because oral argument would not aid the court in resolving the issues
on appeal, we decide this case without oral argument pursuant to Rules 215
and 220(b)(2), SCACR.

2 The sentencing judge stated at the hearing on the
motion to reconsider, “I . . . found [a] failure to pay his restitution .
. .  and he failed to report.”