State v. Pauling

THE STATE OF SOUTH CAROLINA

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State,       
Respondent,

v.

Norman E. Pauling,       
Appellant.

Appeal From Florence County

B. Hicks Harwell, Jr., Circuit Court Judge

Unpublished Opinion No. 2003-UP-761

Heard December 11, 2003 – Filed December
30, 2003

REVERSED AND REMANDED

Assistant Appellate Defender Robert M. Pachak, of Columbia,
for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson
and Senior Assistant Attorney General Harold M. Coombs, Jr., all of Columbia;
and Solicitor Edgar L. Clements, III, of Florence, for Respondent.

PER CURIAM:     Norman E. Pauling appeals from a criminal conspiracy
conviction, asserting that the trial judge erred in increasing his sentence
to match his co-defendant after his attorney inquired into the discrepancy between
the two sentences.  We reverse and remand.

FACTS

Norman E. Pauling and co-defendant Tyron Silva were charged with
breaking and entering a motor vehicle, criminal conspiracy, possession of burglary
tools, and grand larceny.  Pauling and Silva were represented by the same defense
counsel at trial.  Both men pled guilty to criminal conspiracy.  At sentencing,
the trial judge announced the following to Pauling’s co-defendant:

Mr. Silva criminal conspiracy five years suspended upon the service
[of] three years.  And you thereafter placed on probation for a period of five
years.  Neither one of you are going the youthful offender.  I’m gone send you
behind the wall with those who many of them are there for life.  Life now means
life gone die in prison or doing long term.  I hope you [won’t] associate with
them.  You [won’t] choose them for your role models.

You thereafter, Mr. Silva, be place[d] on probation for five years. 
Special condition of your probation—both of you and all of you gone have to
be gainfully employed.  Pay that restitution and I’ll consider putting you—getting
you a job and putting you in the restitution center.

The trial judge then addressed the following statements to
Pauling:

Mr. Pauling, the sentence of the Court is you be confined to the department
of corrections for two years.  Five years suspended to two years active service. 
With special condition of your probation that you so be as the others individually
and collectively responsible for full restitution for that amount to be determined. 
I understand from what Mr. Russo tells me that is an amount—please listen to
me, Mr. Russo.  I don’t know what the amount.  You told me that he’s got lost
earnings.  He’s got a number of things.  I like there to be a hearing to determine
the amount of restitution.  I’m sure it exceeds $1,380.

Shortly thereafter, during the same hearing, the defense attorney
representing Silva and Pauling inquired as to why Silva was given a harsher
sentence than Pauling when both had pled guilty to the same crime:

[Defense Attorney]:  I just had one question.  This is not
arguing with the sentence.

The Court:  I understand.

[Defense Attorney]:  They may have a question about why when they plead to the
same thing and neither—could you explain why one[’]s having a three [and] the
other two?

The Court:  No, sir.  I think they know.

[Defense Attorney]:  Well, I do have one thing I need for
you to know.  Record for the assault and battery on Mr. Silva wasn’t him.  That
was his twin brother if that made a difference.  I just wanted the Court to
be aware that that assault and battery charge in the city court was not this
young man.

The Court:  He entered a plea and when a person enters a
plea, that indicates to me that first step toward rehabilitation acceptance
of responsibility.  And I’ve given him the benefit of entering a plea.  Mr.
Pauling is 18.  Mr. Silva is 19.  Maybe, I’m an optimist.  I don’t see Mr. Silva
as a follower.  I see him in what he said to the Court as rationale not impressed
with his explanation how he came to be involved with this crime.  I don’t understand
it.  But that’s my decision.

[Defense Attorney]:  I understand that and respect that,
Your Honor.  I need an explanation for the benefit--

The Court:  I understand.

[Defense Attorney]:  And it’s just I felt their explanations
were exactly the same.

The Court:  I never seen not even identical twins two people
just alike.

After discussing credit for time served and lifting outstanding bench
warrants, the following exchange took place between the trial judge and Pauling’s
attorney:

The Court:  Reconsidering the sentence of Mr. Pauling[,]
five years suspended upon the service of three and that reason is obvious. 
He’s presumed to be innocent.  These fellows are not choir boys.

[Defense Attorney]:  I don’t think I made a motion for reconsideration.

The Court:  I have reconsidered the sentence of Mr. Pauling. 
Five years suspended upon the service of three.  Treat them all equally and
feed all from the same spoon.

DISCUSSION

I.  Error Preservation

The State contends that Pauling failed to preserve this issue for appeal. 
We disagree.

To preserve a challenge to sentencing, an appellant must raise the issue to
the trial court.  State v. Johnston, 333 S.C. 459, 510 S.E.2d 423 (1999);
see also State v. Shumate, 276 S.C. 46, 275 S.E.2d 288 (1981)
(stating that failure to timely object to or seek modification of sentence in
trial court precludes objection for first time on appeal).  While we recognize
the foregoing as the general rule, we allow this rule to be relaxed “where the
tone and tenor of the trial judge’s remarks are such that any objection would
have been futile.”  State v. Thomason, 355 S.C. 278, 289, 584 S.E.2d
143, 148 (Ct. App. 2003); see also State v. Pace, 316 S.C. 71,
74, 447 S.E.2d 186, 187 (1994) (“As to counsel’s failure to raise an objection,
the tone and tenor of the trial judge’s remarks concerning her gender and conduct
were such that any objection would have been futile.”). 

In the instant case, Pauling’s trial attorney questioned the harsher sentence
received by Silva, Pauling’s co-defendant, only to have Pauling’s sentence increased. 
Having had his benign inquiry yield such a detrimental response, we rule that
it was not “‘incumbent upon defense counsel to harass the judge by parading
the issue before him again.’”  State v. McDaniel, 320 S.C. 33, 37, 462
S.E.2d 882, 884 (Ct. App. 1995).  It would be folly to require the imperilment
of one’s clients for the sake of issue preservation.

II.  Elevated Sentence

In State v. Higgenbottom,
344 S.C. 11, 542 S.E.2d 718 (2001), our Supreme Court vacated a sentence the
defendant received in a subsequent hearing.  One day after his guilty plea,
Higgenbottom exercised his right to move for reconsideration of his probationary
sentence.  The motion was brought before the same trial court which had imposed
the sentence, and the trial court had the same information before it as it had
the day before.  The court denied Higgenbottom’s request to reduce the sentence. 
Instead, the judge increased the probationary sentence by six months.  The Supreme
Court vacated the increased sentence and reinstated the original sentence because
the trial court failed to put on the record objective reasons for the harsher
sentence.

Like Higgenbottom, both
sentences here were given by the same judge and no relevant facts changed between
the first sentencing and the second sentencing.  The sentencing judge did not
“gather a fuller appreciation of the nature and extent of the crimes charged”
in the moments that passed between Pauling’s initial sentence and reconsidered
sentence because no new evidence had been introduced.  Alabama v. Smith,
490 U.S. 794, 801 (1989).  Contrary to Higgenbottom, Pauling’s trial
counsel never made a motion to have the sentence reconsidered.  He merely inquired
into the reasoning behind the discrepancy between the two defendants’ sentences. 
Thus, the trial court reconsidered the original sentence on its own.  This was
error.  We therefore reinstate Pauling’s original sentence.

III.  Sentencing Procedure

The State maintains Pauling was not sentenced by the judge’s oral pronouncement. 
Rather, the State claims the actual sentencing occurred at some later point. 
We disagree.

In civil actions, an order is not final until it is written and entered
by the clerk of court.  Bowman v. Richland Mem’l Hosp., 335 S.C. 88,
515 S.E.2d 259 (Ct. App. 1999).  Until an order is written and entered by the
clerk of court, the judge retains discretion to change his mind and amend his
ruling accordingly.  Id.  Even after orally announcing his decision,
a trial judge presiding over a civil action can modify his decision at any point
prior to filing.  Bayne v. Bass, 302 S.C. 208, 210, 394 S.E.2d 726, 727
(Ct. App. 1990) (“Even if as contended by defendant the trial Judge granted
an oral divorce to plaintiff such pronouncement is not a final ruling on the
merits nor is it binding on the parties until it has been reduced to writing,
signed by the Judge and delivered for recordation.”).  We hold that the civil
rule does not apply in criminal proceedings.

In State v. Wheeler, 498 P.2d 205 (Ariz. 1972), the court
stated that a sentence orally pronounced by the court and entered in the minutes
is a complete and valid judgment that the trial court cannot subsequently vacate
and replace with a more severe judgment without violating the prohibition against
double jeopardy.  Id.  The defendant in that case was convicted on a
two-count indictment.  The court “imposed sentences of five to six years’ imprisonment
. . . on each charge.”  Id. at 206.  Upon hearing the sentence, the defendant
attacked his attorney.  At a proceeding two days after the imposition of the
original sentence, the trial judge “attempted to re-sentence” the defendant,
formally declaring a sentence of “not less than five nor more than six years
on the robbery and not less than 24 nor more than 25 years on the attempted
rape, the sentences to run consecutively.”  Id. at 206.  The Supreme
Court of Arizona concluded the “attempted re-sentencing” was invalid.  Id.
at 208.  The court found the defendant had “entered upon the execution of his
sentence” at the moment the original “judgment was pronounced and entered on
the minutes of the court,” so that any subsequent attempt to increase the original
valid sentence violated double jeopardy.  Id. at 208; see also
State v. Fertterer, 860 P.2d 151, 154 (Mont. 1993) (“Once a valid sentence
has been pronounced, the court imposing that sentence has no jurisdiction to
modify it, except as provided by statute.”).

The protections afforded a person accused of a crime are familiar hallmarks
of our judicial system—to know the charge against him, to be represented by
counsel, to confront witnesses, to have an impartial trial.  We reject the contention
that the sentencing sheet controls when a defendant has been sentenced.  “‘Where
the liberty of a defendant is concerned, and he is to be sentenced by the judge,
he has a right that everything appertaining to the case, in the way of evidence
affecting the case, be open and above board and public.’”  State v. Simms,
131 S.C. 422, 424, 127 S.E. 840, 840 (1925).

In its brief, the State writes that “requiring the trial court to
impose the first sentence that it verbalizes during the course of a sentencing
hearing” is not practical.  A judge is not bound to mistakenly uttered words. 
The authority of a trial judge to correct clerical errors is well established. 
“Unless authorized by statute, once a final judgment has been rendered in a
criminal case, the trial court ordinarily loses jurisdiction to alter its final
judgment and sentence.”  24 C.J.S. Criminal Law § 1544 (1989).  Ordinarily,
as an exception to this general rule, “a trial court presiding over a criminal
prosecution may correct clerical mistakes in its own judgments.”  Id. 
Otherwise, “a sentence imposed subsequent to a validly imposed one is a nullity.” 
Id.  We reject the argument and contention by the State that a defendant
may be subjected to a different sentence contained in a written order issued
at a later time.

CONCLUSION

Based on the foregoing, the decision of the trial judge is

REVERSED AND THE CASE IS REMANDED FOR SENTENCING.

GOOLSBY, ANDERSON, and STILWELL, JJ., concur.