State v. Brown

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State,       
Respondent,

v.

Janice Denise Brown,       
Appellant.

Appeal From York County

John C. Hayes, III, Circuit Court Judge

Unpublished Opinion No. 2003-UP-243

Submitted January 29, 2003 – Filed April
1, 2003

AFFIRMED

Assistant Appellate Defender Aileen P. Clare, of Columbia,
for Appellant.

Deputy Director for Legal Services Teresa A. Knox,  Legal
Counsel Tommy Evans, Jr. and Legal Counsel J. Benjamin Aplin, all of Columbia,
for Respondent.

PER CURIAM:  In July 1998, Janice Denise
Brown pled guilty to child neglect and was sentenced to ten years imprisonment,
suspended upon service of five years probation.  At a probation revocation hearing
in November 2001, the trial judge revoked three years of Brown’s suspended sentence. 
Brown appeals.

FACTS

Brown was indicted for child neglect when, after giving birth
to her daughter at the hospital, both she and the child tested positive for
cocaine.  Brown pled guilty.  The trial judge attached several conditions to
her sentence:  (1) drug counseling, (2) remaining drug free, (3) random drug
tests, and (4) thirty days PSE (public service employment).  Brown did not file
a direct appeal.

At Brown’s revocation hearing, the State alleged the following
probation violations:  (1) failure to follow advice and instructions of supervising
agent, (2) failure to remain drug free – as provided in the original sentence
– by testing positive for cocaine, (3) failure to report to supervising agent,
and (4) failure to pay supervision fees.  Brown admitted the alleged violations
were true.  Though not citing it by name, defense counsel stated that, after
the United States Supreme Court’s decision in Ferguson v. City of Charleston, [1] Brown would have a “pretty legitimate
post conviction relief case.”  However, counsel did not argue that, based
on Ferguson, Brown’s conviction should be reversed.  The trial judge
revoked three years of Brown’s suspended sentence. 

STANDARD OF REVIEW

The decision to revoke probation is in the discretion
of the circuit court judge.  State v. Hamilton, 333 S.C. 642, 511 S.E.2d
94 (Ct. App. 1999).  “This [C]ourt’s authority to review such a decision is
confined to correcting errors of law unless the lack of legal or evidentiary
basis indicates the circuit judge’s decision was arbitrary and capricious.” 
Id. at 647, 511 S.E.2d at 96.

LAW/ANALYSIS

Brown argues the underlying conviction
is invalid because of the United States Supreme Court decision in Ferguson
v. City of Charleston.  As such, Brown contends the trial judge’s order
revoking her sentence should be vacated and her original conviction reversed. 

Initially, we note this issue was neither
raised to nor ruled upon by the trial judge at the probation revocation hearing. 
As such, it is not preserved for review by this court.  State v. Nichols,
325 S.C. 111, 120-21, 481 S.E.2d 118, 123 (1997) (issue may not be raised for
first time on appeal, but must have been raised to trial judge to be preserved
for appellate review).

Regardless, there is insufficient evidence
in the record to determine the factual basis of Brown’s guilty plea.  As we
do not know the circumstances surrounding Brown’s drug test – such as, for example,
whether consent was given – we are unable to conclude whether the subsequent
search was lawful.  See State v. Hutto, 279 S.C. 131, 132, 303
S.E.2d 90, 91 (1983) (appellant has burden of presenting adequate record which
is sufficiently complete to permit review).  Accordingly, based upon the record
before this court, in which Brown admits the alleged probation violations, the
trial judge did not err in revoking Brown’s suspended sentence.

CONCLUSION

Based upon the foregoing, the lower court’s order revoking
three years of Brown’s suspended sentence is

AFFIRMED.

HEARN, C.J., GOOLSBY and SHULER, JJ., concur.

[1] 532 U.S. 67, 121 S. Ct. 1281, 149 L. Ed. 2d 205
(2001).