State v. Jones

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, Appellant,

v.

Josie Dean Jones, Respondent.

Appellate Case No. 2016-000273

Appeal From Greenwood County
Eugene C. Griffith, Jr., Circuit Court Judge

Unpublished Opinion No. 2018-UP-264
Submitted April 2, 2018 – Filed June 13, 2018

REVERSED AND REMANDED

Attorney General Alan McCrory Wilson and Assistant
Deputy Attorney General David A. Spencer, both of
Columbia, and Solicitor David Matthew Stumbo, of
Greenwood, for Appellant.

Appellate Defender Laura Ruth Baer, of Columbia, for
Respondent.

PER CURIAM: The State appeals from a sentence imposed on Josie Dean Jones
following her guilty plea to trafficking in methamphetamine, between ten and
twenty-eight grams, asserting the trial court erred in suspending Jones' sentence
below the three-year minimum and granting probation, in contravention of section
44-53-375(C)(1)(a) of the South Carolina Code. We reverse and remand.

Jones pled guilty to trafficking in more than ten but less than twenty-eight grams of
methamphetamine and possession of a controlled substance.1 Following the trial
court's acceptance of Jones' plea, it sentenced her on the trafficking charge to five
years' imprisonment, suspended upon the service of eighteen months and thirty-six
months of probation. The court further provided the eighteen months could be
served under the home incarceration program. The solicitor immediately raised an
objection to the sentence, stating as follows:

[T]he State objects to that sentence pursuant to 44-53-
375(C)(1)(a)[, which] provides that for someone
convicted of trafficking of 10 grams or more but less than
28 grams, for a first offense a term of imprisonment of
not less than 3 years, no more than 10 years, no part of
which may be suspended nor probation granted and a fine
of $25,000.00 dollars. I just wanted to note the State's
objection to that sentence is not complying with the
statute for the record.

The trial court noted the solicitor's objection, but it did not change Jones' sentence
on the trafficking charge.

The State now appeals, arguing the trial court erred in suspending Jones' prison
sentence below the three-year minimum and granting her probation for her
conviction for trafficking methamphetamine because the statute expressly requires
a minimum sentence of three years and prohibits suspending any part of the
sentence or granting probation. We agree.

As an initial matter, we agree with Jones that the State's argument concerning the
propriety of a home detention sentence2 is not preserved for our review, as no

1
Jones' plea and sentence on the possession charge are not in issue on appeal.
2
In a footnote in the argument portion of its brief, the State contends the trial court
further erred in sentencing Jones because home detention is not available in lieu of
incarceration for violent offenses pursuant to the home detention statute.
objection was raised to the trial court's imposition of home detention in lieu of
incarceration for the trafficking offense. See Jones v. Lott, 387 S.C. 339, 346, 692
S.E.2d 900, 903 (2010) ("Issues and arguments are preserved for appellate review
only when they are raised to and ruled on by the lower court." (quoting Elam v.
S.C. Dep't of Transp., 361 S.C. 9, 23, 602 S.E.2d 772, 779-80 (2004))). We
disagree, however, with Jones' assertion that the State failed to preserve its
argument that the trial court committed an error of law by suspending Jones'
sentence below the statutorily required three-year minimum and granting probation
in contravention of the statutory prohibition. After the trial court imposed a
suspended sentence with probation, the solicitor immediately objected asserting,
for first-offense trafficking in ten to twenty-eight grams of methamphetamine,
section 44-53-375(C)(1)(a) provided a term of imprisonment of not less than three
years, no part of which could be suspended nor probation granted, and arguing the
court's sentence did not comply with the statute. The trial court noted the
solicitor's objection, but declined to change the sentence. Thus, the objection was
timely made by the State on a specific ground, State v. Jennings, 394 S.C. 473,
481, 716 S.E.2d 91, 95 (2011); it was clear the argument was presented on that
ground, State v. Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691, 694 (2003); it was
made with sufficient specificity to inform the trial court of the point being urged by
the State, State v. Byers, 392 S.C. 438, 444, 710 S.E.2d 55, 58 (2011); and it was
sufficiently specific to bring into focus the precise nature of the alleged error so it
could be reasonably understood by the trial court, State v. Prioleau, 345 S.C. 404,
411, 548 S.E.2d 213, 216 (2001). Accordingly, the issue was "(1) raised to and
ruled upon by the trial court, (2) raised by the appellant, (3) raised in a timely
manner, and (4) raised to the trial court with sufficient specificity." S.C. Dep't of
Transp. v. First Carolina Corp. of S.C., 372 S.C. 295, 301-02, 641 S.E.2d 903, 907
(2007) (quoting Jean Hoefer Toal et al., Appellate Practice in South Carolina 57
(2d ed. 2002)).

Section 44-53-375 of the South Carolina Code provides in pertinent part as
follows:

A person who . . . is knowingly in actual or constructive
possession . . . of ten grams or more of methamphetamine
. . . is guilty of a felony which is known as "trafficking in
methamphetamine . . ." and, upon conviction, must be
punished as follows if the quantity involved is: (1) ten
grams or more, but less than twenty-eight grams: (a) for a
first offense, a term of imprisonment of not less than
three years nor more than ten years, no part of which
may be suspended nor probation granted, and a fine of
twenty-five thousand dollars.

S.C. Code Ann. § 44-53-375(C)(1)(a) (2018) (emphases added).

The language of this statute is express and clear and, under the plain meaning,
prohibits a trial court from suspending the sentence or granting probation for
trafficking in methamphetamine. See State v. Jacobs, 393 S.C. 584, 587, 713
S.E.2d 621, 623 (2011) ("Although it is a well-settled principle of statutory
construction that penal statutes should be strictly construed against the [S]tate and
in favor of the defendant, . . . courts must nevertheless interpret a penal statute that
is clear and unambiguous according to its literal meaning); id. at 587, 713 S.E.2d at
622 (holding "a court must abide by the plain meaning of the words of a statute,"
and when "the statute's language is plain and unambiguous, and conveys a clear
and definite meaning, . . . the court has no right to impose another meaning"); In re
M.B.H., 387 S.C. 323, 326, 692 S.E.2d 541, 542 (2010) ("A trial judge has broad
discretion in sentencing within statutory limits." (emphasis added)); id. ("A
sentence will not be overturned absent an abuse of discretion when the ruling is
based on an error of law or a factual conclusion without evidentiary support.");
State v. Taub, 336 S.C. 310, 314, 519 S.E.2d 797, 800 (Ct. App. 1999) ("Judicial
discretion . . . in suspending sentences . . . is subject to statutory restriction."
(quoting State v. De La Cruz, 302 S.C. 13, 16, 393 S.E.2d 184, 186 (1990))); State
v. Thomas, 372 S.C. 466, 468, 642 S.E.2d 724, 725 (2007) (holding the general
power to suspend a criminal defendant's sentence "does not extend to offenses [for
which] the legislature has specifically mandated that no part of a sentence may be
suspended"); Taub, 336 S.C. at 312-13,317, 519 S.E.2d at 799, 801 (finding error
in the trial court's suspension of Taub's sentence—under the identical punishment
set by the legislature for trafficking in cocaine—because the clear legislative intent
was to restrict the general grant of authority for suspending sentences by stating in
section 44-53-370(e)(2)(a)(1) that the required sentence included a minimum term
of imprisonment which could not be suspended nor probation granted).

Accordingly, we hold the trial court erred in suspending Jones' sentence and
granting probation for her trafficking in methamphetamine offense.3 We reverse

3
To the extent the State argues in its reply brief that the trial court lacked authority
in declining to impose a fine under section 44-53-375(C)(1)(a), we find no error.
See Taub, 336 S.C. at 318, 519 S.E.2d at 802 (holding the phrase "no part of which
and remand for re-sentencing in accordance with the express statutory language of
section 44-53-375(C)(1)(a).

REVERSED AND REMANDED.4

HUFF, GEATHERS, and MCDONALD, JJ., concur.

may be suspended nor probation granted" in section 44-53-370(e)(2)(a)(1)
modified only the phrase "a term of imprisonment of not less than three years nor
more than ten years" and, therefore, the trial court had authority to suspend the
imposition or execution of the fine pursuant to section 24-21-410).
4
We decide this case without oral argument pursuant to Rule 215, SCACR.