State v. Marcus

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.

Luther Brian Marcus, Appellant.

Appellate Case No. 2017-002622

Appeal From Pickens County
Edward W. Miller, Circuit Court Judge

Unpublished Opinion No. 2020-UP-338
Submitted September 1, 2020 – Filed December 16, 2020

AFFIRMED

Appellate Defender Victor R Seeger, of Columbia, for
Appellant.

Thomas Wells Nicholson, of the South Carolina
Department of Probation, Parole, and Pardon Services, of
Columbia, for Respondent.

PER CURIAM: Appellant Luther Brian Marcus appeals the circuit court's decision
to revoke his probation in full. Appellant argues the circuit court erred in not
considering evidence that he had "maxed out" his sentence by previously serving
eleven extra months in prison, or by not crediting the eleven months towards
Appellant's revocation time. Appellant asserts the circuit court's statements at the
revocation hearing indicate the court believed it had no choice other than to revoke
Appellant's probation in full. We affirm.

FACTS

On April 27, 2010, Appellant pled guilty to second-degree burglary and was
sentenced to fifteen years' imprisonment. This sentence was suspended to seven
years' incarceration, with five years' probation.1 Appellant was released from
incarceration on September 30, 2016, and was arrested for indecent exposure within
three months. Following a two-day jury trial, Appellant was found guilty of indecent
exposure on December 12, 2017. As a result of the conviction, the circuit court
found Appellant violated his probation and proceeded to hear arguments on the
issue.

Appellant stated he served a total of seven years and eleven months towards
his second-degree burglary conviction. He argued that this time served "maxed him
out on the fifteen-year sentence[]," and thus, his probation case should have
terminated in February 2016 while he was still incarcerated. The circuit court
responded to Appellant by declaring: "Well, that's all not in my jurisdiction as you
are aware."

The State then read Appellant's prior convictions into the record. Since 1993,
Appellant had accumulated convictions for: grand larceny, petit larceny, criminal
sexual conduct with a minor (requiring that he register as a sex offender), tax fraud,
burglary, and safe cracking.

Following the State's recitation of Appellant's criminal history, the circuit
court asked Appellant if there was anything he would like to say to the court. The
following exchange occurred:

Appellant: I just feel like I maxed a total of 15 years
out from those suspended sentences that
was ran concurrent with my Pickens. I
feel like I gave my time to the State. I
exceed those 15 years. I was—

1
This sentence ran concurrent with other (shorter) sentences Appellant received
for different convictions.
The Court: You understand that's not up
to me.

Appellant: I understand that.

The Court: Okay.

Appellant: Who is it up to? Who do I appeal it to?

The Court: Well, you can talk to your lawyer about
that.

The court then sentenced Appellant to three years' imprisonment for the
indecent exposure conviction and revoked his probation in full. This appeal of the
probation revocation followed.

ISSUE ON APPEAL
Did the circuit court abuse its discretion in revoking Appellant's probation in
full without considering Appellant's argument that he was on probation supervision
in error because he had "maxed out" his sentence while previously incarcerated?

STANDARD OF REVIEW
"The determination of whether to revoke probation in whole or part rests
within the sound discretion of the [circuit] court." State v. Allen, 370 S.C. 88, 94,
634 S.E.2d 653, 655 (2006). "An appellate court will reverse the [circuit] court's
decision where there has been an abuse of discretion." State v. Miller, 404 S.C. 29,
33, 744 S.E.2d 532, 535 (2013).

An abuse of discretion occurs when the [circuit] court's
ruling is based upon an error of law, such as application of
the wrong legal principle; or, when based upon factual
conclusions, the ruling is without evidentiary support; or,
when the [circuit] court is vested with discretion, but the
ruling reveals no discretion was exercised; or when the
ruling does not fall within the range of permissible
decisions applicable in a particular case, such that it may
be deemed arbitrary and capricious.

Allen, 370 S.C. at 94, 634 S.E.2d at 656.

LAW/ANALYSIS
Appellant argues that the circuit court did not believe it had the authority to
do anything other than revoke his probation in full. Therefore, Appellant contends,
the court abused its discretion by not exercising its discretion as to whether to revoke
Appellant's probation in part or in full, and by not considering the evidence that
Appellant had served an additional eleven months in prison. Appellant asserts that
the circuit court's responses to Appellant's argument that he previously "maxed out"
his sentence and should not be on probation evinces the court's misapprehension of
its discretion in the matter. We disagree.

The full transcript of the hearing and the context surrounding the circuit
court's responses to Appellant's assertion that he had already "maxed out" his
sentence make clear that the court considered the calculation of Appellant's sentence
and time served in prison to be outside the court's jurisdiction—not that it was
outside the court's jurisdiction to consider this evidence when deciding whether to
fully or partially revoke Appellant's probation. The circuit court's exchange with
Appellant at the end of the hearing crystallized this fact. The court's response during
the exchange was clearly in regards to whether Appellant had exceeded his sentence
and not, as Appellant attempts to characterize it, a proclamation that it was not up to
the circuit court whether it could issue a partial or full revocation. Therefore, we
find the circuit court was not unaware of its discretion regarding Appellant's
probation. See S.C. Code Ann. § 24-21-460 (2007) ("Upon such arrest[,] the court[]
. . . shall cause the defendant to be brought before it and may revoke [his] probation
or suspension of sentence[.] . . . [T]he circuit [court] before whom such defendant
may be so brought shall have the right, in [its] discretion, to require the defendant to
serve all or a portion only of the sentence imposed.").

Furthermore, the circuit court did not abuse its discretion by issuing a full
revocation of Appellant's probation because there is evidence in the record to support
its decision. See Allen, 370 S.C. at 94, 634 S.E.2d at 656. Appellant was convicted
of a new offense—which he committed within three months of his release from
prison. Moreover, he has an extensive criminal history. Therefore, we hold the
circuit court did not abuse its discretion. See Miller, 404 S.C. at 33–34, 744 S.E.2d
at 535.

CONCLUSION
Based on the foregoing, we affirm the circuit court's full revocation.
AFFIRMED.2

HUFF, WILLIAMS, and GEATHERS, JJ., concur.

2
We decide this case without oral argument pursuant to Rule 215, SCACR.