State v. Spann

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State,       
Respondent,

v.

Ernest Spann,       
Appellant.

Appeal From Darlington County

Michael J. Baxley, Circuit Court Judge

Unpublished Opinion No. 03-UP-107

Submitted November 20, 2003 – Filed
February 6, 2003   

AFFIRMED

Assistant Appellate Defender Eleanor Duffy Cleary, of Columbia,
for Appellant

Attorney General Henry D. McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson,
Assistant Attorney General W. Rutledge Martin, of Columbia; Solicitor Jay E.
Hodge, Jr., of Darlington; for Respondent

PER CURIAM:  Ernest Spann was indicted for
murder, unlawful possession of a pistol, and possession of a firearm during
the commission of a violent crime.  Spann pleaded guilty to the lesser included
offense of voluntary manslaughter and the solicitor nol prossed the remaining
two charges.  Spann argues the trial judge erred in accepting a conditional
guilty plea.  We affirm.

FACTS

Spann was indicted for murder, unlawful possession of a pistol,
and possession of a firearm during the commission of a violent crime.  Prior
to trial Spann filed a motion to exempt him from a mandatory sentence of life
in prison without parole under South Carolina Code Annotated section 17-25-45
should he either plead guilty or be found guilty by the jury of murder or voluntary
manslaughter.  The trial judge reserved hearing and ruling on this motion until
after the jury returned its verdict.

Spann proceeded to trial on the three charges.  However,
after jury selection and other pretrial matters had been conducted Spann accepted
the solicitor’s offer to plead guilty to voluntary manslaughter.  The solicitor
also offered to nol pros the weapons charges.  The solicitor made no other recommendations. 

The trial judge initially inquired how Spann’s
guilty plea would impact upon the sentencing provisions of the recidivist statute. 
Spann argued section 17-25-45 should not apply to him given his only prior “most
serious” offense occurred fourteen years earlier. [1]   Spann indicated his desire to
perfect an appeal and take his argument “a little farther” should the trial
judge deny his motion and sentence him to life without parole.  Spann argued
the provisions of section 17-25-45 were vague and overbroad.

The solicitor opposed any deviation from the sentencing
provisions of section 17-25-45, stating the statute required a sentence of life
without parole.

Before accepting Spann’s guilty plea, the trial judge
informed Spann in no uncertain terms that section 17-25-45 did not offer the
judge any discretion in sentencing and by pleading guilty to voluntary manslaughter
Spann would die in prison.  The trial judge denied Spann’s motion to exempt
him from sentencing under the recidivist statute, accepted Spann’s guilty plea,
and sentenced him to life in prison without the possibility of parole.

DISCUSSION

Spann argues the trial judge erred in accepting his “conditional”
guilty plea given the mutual understanding Spann would appeal the constitutionality
of the sentencing provisions of section 17-25-45.

“Guilty pleas are unconditional and,
if an accused attempts to attach any condition, the trial court must direct
a plea of not guilty.”  State v. O’Leary, 302 S.C. 17, 18, 393 S.E.2d
186, 187 (1990).  It is impermissible for a defendant to attempt to preserve
constitutional issues while entering a guilty plea.  Id.   

In State v. Truesdale, 278 S.C. 368, 296 S.E.2d 528
(1982), a guilty plea was held to be conditional where the defendant asserted,
at the time of his plea, that the trial judge had deprived him of his constitutional
rights by denying numerous pretrial motions.   Prior to trial, the defendant
had moved: (1) to change venue; (2) to limit the solicitor’s use of peremptory
challenges; and (3) to place restrictions upon the disqualifications of jurors
for cause.

In O’Leary, the defendant conditioned his guilty plea
to driving under suspension upon his right to appeal the constitutionality of
a statute regarding notice to drivers whose licenses are suspended.  O’Leary,
302 S.C. at 17-18, 393 S.E.2d at 187.

Recently, our Supreme Court vacated a guilty plea as being
conditional where the defendant argued an indictment was unconstitutional. 
State v. Peppers, 346 S.C. 502, 552 S.E.2d 288 (2001).  The defendant
also argued the statute charged in the indictment “did not provide adequate
notice of the conduct it prohibited.”  Id. at 504, 552 S.E.2d at 289. 
The trial judge denied the motions, but assured defense counsel he was “protected”
on the record.  Id.

The sentencing issue Spann raised by motion at trial
is quite unlike the issues preserved for appeal by defendants in other conditional
guilty plea cases.  Upon examination of these earlier cases it is clear the
guilty pleas entered were truly conditional, in that the preserved issues, if
heard on appeal and decided in favor of the defendant, would necessitate the
reversal of a conviction, whether that conviction be by guilty plea or by a
jury’s verdict.  In the present case, Spann admits his guilt and merely raises
a sentencing issue.  Spann does not contest any issue that would require a reversal
of a conviction.

CONCLUSION

Based on the foregoing analysis,
the trial judge did not err in accepting Spann’s guilty plea.

AFFIRMED.

CONNOR, STILWELL and HOWARD,
JJ., concur.

[1]    Spann had pleaded guilty in 1987 to assault and battery with intent
to kill.