State v. Dudley

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.

Brenda Tart Dudley,       
Appellant.

Appeal From Florence County

B. Hicks Harwell, Jr., Circuit Court
Judge

Unpublished Opinion No. 2005-UP-110

Submitted December 1, 2004 – Filed February
11, 2005

AFFIRMED

Louis S. Moore, of Charleston, for Appellant.

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

PER CURIAM:  Brenda Tart Dudley was convicted
of shoplifting and sentenced to ten years imprisonment, suspended upon the service
of four years and five years probation.  She argues on appeal that the trial
judge erred in:  (1) repeatedly interrupting counsel during the trial, expressing
bias, and thereby denying her a fair trial; and (2) giving her a sentence disproportionate
to the offense.  We affirm. [1]

FACTS

On August 7, 2001, Ronald Lyles, owner
of an Ace Hardware store, observed Dudley and a male removing the plastic packaging
from expensive pliers and placing the pliers in the male’s clothing.  The pliers
had been removed from their display several aisles over.  Dudley and the male
separated and left the store.  Lyles chased the male in the parking lot until
he disappeared down an alley.  Lyles’ brother questioned Dudley until police
arrived.  Dudley denied taking anything from the store.  Dudley gave police
the name of a man she was with, but the man was never taken into custody.  The
pliers were never recovered.  Dudley was charged with shoplifting. 

After electing to proceed in a bench trial,
Dudley was convicted.  She appeals. 

LAW/ANALYSIS

I. Questioning by the Court

Dudley argues she was denied her right
to a fair trial because the trial judge interrupted counsel to ask questions
of the witnesses and the judge expressed a bias with regard to shoplifting charges. 
We disagree.

Prior to the bench trial, the trial judge
expounded on the problem of shoplifting in society.  The judge informed Dudley
that if she was convicted, he would put her in jail.  Throughout the trial,
the judge would interrupt counsel for both Dudley and the State to question
witnesses, including Dudley.  The judge denied Dudley’s motion for a directed
verdict, stating that there was no question that Dudley knew the male suspect,
that she was a confederate of the male suspect, and, citing the store-owner’s
testimony, that she knew what he was placing in his clothing.  However, the
judge went on to address the requirements for granting a motion for directed
verdict and to state that he had not yet weighed the facts and would not determine
the matter until he had heard the entire case. 

Although Dudley argues the trial judge was biased
against those charged with shoplifting and that the judge indicated by his questions
that he had deliberated her guilt prior to the close of the case, this issue
is not properly before this court.  Dudley did not object to the judge’s pre-trial
statements, to his interruptions, or to his comments during the directed verdict
motion.  She never complained to the trial judge that his actions were denying
her of a fair trial, she failed to raise the issue of bias before the judge,
and she failed to request that the judge recuse himself.  Accordingly, she failed
to preserve her complaint for appellate review.  State v. Hicks, 330
S.C. 207, 216, 499 S.E.2d 209, 214 (1998) (holding that issues not raised to
and ruled upon by the trial court are not preserved for appellate review); Bryan
v. Bryan, 296 S.C. 305, 311, 372 S.E.2d 116, 120 (Ct. App. 1988) (holding
that where a party failed to raise the issue of bias and failed to request recusal,
the issue of judicial bias was waived on appeal).  As Dudley never complained
about judge bias below, she cannot argue that issue on appeal. 

II. Disproportionate Sentence

Dudley argues her sentence was out of proportion
with the severity of the crime, and thus her punishment was cruel and unusual. 
We disagree.

Prior to trial, the judge informed Dudley that
“if you’re convicted, I’m gone [sic] put you in jail.  I want you to know that
ahead of time.  If you convicted [sic] and I find you guilty, I’m gone [sic]
put you in jail because you have used the system and you lost.”  The trial judge
also warned Dudley that he had previously given a man convicted of shoplifting
a ten-year sentence. [2]   After finding Dudley guilty of the crime, the trial judge
considered her sentence.  Noting her long criminal history [3] and after hearing from two of
her children, the trial judge asked Dudley to acknowledge her involvement in
the crime and he would consider that a mitigating circumstance in sentencing. 
When she again denied involvement, the judge gave her the weekend to consider
the matter further.  When the matter was reconvened, Dudley apologized to the
judge, but she stated she was not “denying or acknowledging” her involvement
in the crime.  The trial judge sentenced her to ten years, suspended upon the
service of four years and five years probation. 

We note that this issue is not properly before
us.  Dudley did not object to the sentence or complain to the judge that the
sentence was disproportionate to the severity of the crime.  Accordingly, this
issue is not preserved for appellate review.  Hicks, 330 S.C. at 216,
499 S.E.2d at 214; State v. Shumate, 276 S.C. 46, 47, 275 S.E.2d 288,
288 (1981) (holding that a failure to object to a sentence at the time of sentencing
precludes appellate review of the matter). 

In any event, a trial judge has broad discretion
in giving sentences within the statutory limits.  Brooks v. State, 325
S.C. 269, 271-72, 481 S.E.2d 712, 713 (1997).  “A sentence is not excessive
if it is within statutory limitations and there are no facts supporting an allegation
of prejudice against a defendant.”  Id. at 272, 481 S.E.2d at 713.  Dudley
was convicted of her third shoplifting offense.  The sentence for a third offense
shoplifting conviction is up to ten years imprisonment.  S.C. Code Ann. § 16-13-110
(2003) (defining shoplifting as a misdemeanor or felony, depending on the value
of the property taken); S.C. Code Ann. § 16-1-57 (2003) (“A person convicted
of an offense for which the term of imprisonment is contingent upon the value
of the property involved must, upon conviction for a third or subsequent offense,
be punished as prescribed for a Class E felony.”); S.C. Code Ann. § 16-1-20
(A)(5) (2003) (noting the punishment for a Class E felony is not to exceed ten
years).  Thus, the sentence was clearly within the statutory mandates.  

“The cruel and unusual punishment clause
requires the duration of a sentence not be grossly out of proportion with the
severity of the crime.”  State v. Jones, 344 S.C. 48, 56, 543 S.E.2d
541, 545 (2001).  Three factors are considered in determining proportionality: 
“(1) the gravity of the offense compared to the harshness of the penalty; (2)
sentences imposed on other criminals in the same jurisdiction; and (3) sentences
for the same crime in other jurisdictions.”  Id. 

Dudley points to two cases from this jurisdiction
to support her argument that her sentence was disproportionate.  In State
v. Timmons, 349 S.C. 389, 563 S.E.2d 657 (2002), the defendant was sentenced
to eight years for his fifteenth shoplifting conviction and to two years for
possession of cocaine.  The court affirmed the convictions and sentences, deciding
only the issue of whether the trial court had subject matter jurisdiction to
entertain the defendant’s plea to possession of cocaine.  Timmons, 349
S.C. at 394, 563 S.E.2d at 660.  Dudley also points to State v. Lewis,
325 S.C. 324, 478 S.E.2d 696 (Ct. App. 1996), in which a defendant with nearly
twenty prior convictions, including four prior shoplifting convictions, was
sentenced to three years for shoplifting.  This court affirmed his sentence,
finding it was within the statutory maximum.  Lewis, 325 S.C. at 327,
478 S.E.2d at 698. 

We find Dudley’s sentence did not violate the cruel and usual punishment
clause.  Her suspended sentence was within the statutory maximum.  Her sentence
is not grossly disproportionate to the crime of third offense shoplifting. 
Finally, her sentence was not grossly disproportionate to the sentences given
to others convicted of shoplifting, as seen in Timmons and Lewis.  

CONCLUSION

Based on the foregoing, Dudley’s conviction
and sentence are

AFFIRMED.

HUFF, KITTREDGE, and BEATTY, JJ., concur.

[1] We decide this case without oral argument pursuant
to Rule 215, SCACR.

[2]   Although Dudley does not complain about this specific incident,
we note that the trial judge seemed to indicate he would punish Dudley for
exercising her right to a trial.  After informing Dudley of her right to a
trial, the trial judge later said that if Dudley were convicted: “. . . I’m
gone [sic] send you to jail for a lot longer time than I would if you were
entering a plea because you’ve taken the time from the court when in your
heart-of-hearts you know whether or not you’ve got a good defense or not.” 
Dudley never objected to this statement at trial, and she does not complain
about this issue now.  Although it is impermissible for a trial judge to consider
the exercise of a constitutional right to a trial in sentencing, this issue
is not preserved for our review.  Davis v. State, 336 S.C. 329, 333,
520 S.E.2d 801, 803 (1999) (holding it was impermissible for a sentencing
court to consider the exercise of the right to trial in pronouncing sentence);
State v. Hazel, 317 S.C. 368, 370, 453 S.E.2d 879, 880 (1995) (same). 

[3] Dudley had a prior criminal record that included two prior shoplifting
convictions, involuntary manslaughter, food stamp fraud, simple possession
of marijuana, receiving stolen goods, grand larceny, and giving a false statement
upon attempting to purchase a weapon.