State v. Holston

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State,       
Respondent,

v.

Kenneth Holston,       
Appellant.

Appeal From Aiken County

James C. Williams, Jr., Circuit Court
Judge

Unpublished Opinion No. 2003-UP-593

Submitted September 8, 2003 – Filed
October 9, 2003

VACATED

Senior Assistant Appellate
Defender Wanda H. Haile, Office of Appellate Defense, 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 Barbara R. Morgan, of Aiken,
for Respondent.

STILWELL, J.:  In this criminal case we
must decide whether Kenneth W. Holston, indicted on two counts of first-degree
criminal sexual conduct (CSC) with a minor, effectively waived presentment on
two counts of committing a lewd act upon a child under the age of sixteen. 
Holston appeals, arguing the trial court lacked subject matter jurisdiction
to accept the guilty pleas.  We agree and vacate. [1]

Background

Holston’s indictments for first-degree criminal
sexual conduct with a minor allege that Holston committed sexual batteries upon
a seven-year-old girl in violation of S.C. Code Ann. § 16-3-655 (2001).  When
Holston appeared before the circuit court, the court recited the information
in both indictments, asked Holston if he understood the charges, and asked how
Holston wished to plead.  On both indictments, Holston indicated he understood
the charges and that he wished to plead guilty.  The trial court then explained: 
“And on each of these, although you are charged with criminal sexual conduct
in the first degree, you are being allowed to plead to a lewd act on a minor.”
 No separate indictments charging Holston with lewd act on a minor had been
prepared.  At the conclusion of the hearing, the trial court accepted Holston’s
guilty pleas and sentenced him to concurrent 15-year sentences. 

According to the sentencing sheets, Holston pled
guilty under indictments 2001-GS-02-770 and 2001-GS-02-771, which included only
the charges of first-degree CSC with a minor.  The indictments were not amended
to charge Holston with lewd act on a child.  The sentencing sheets, however,
refer to lewd act on a child as the crimes to which Holston pled guilty and
for which he was sentenced. 

LAW/ANALYSIS

On appeal, Holston asserts that because the offense
of lewd act on a minor is not a lesser-included offense of first-degree criminal
sexual conduct with a minor, the trial court lacked subject matter jurisdiction
to accept his guilty pleas to those charges.  We agree.

Except for certain minor offenses, the circuit
court does not have subject matter jurisdiction to hear a guilty plea unless
(1) there has been an indictment that sufficiently states the offense; (2) there
has been a waiver of presentment; or (3) the charge is a lesser included charge
of the crime charged.  Joseph v. State, 351 S.C. 551, 555, 571 S.E.2d
280, 282 (2002); see also Odom v. State, 350 S.C. 300,
302, 566 S.E.2d 528, 529 (2002) (holding that in the absence of an indictment,
there must be a valid waiver of presentment for the trial court to have subject
matter jurisdiction of the offense). 

Here, the State does not dispute that Holston was
never indicted for the charges of committing lewd acts on a minor; nor does
the State dispute that committing a lewd act upon a minor is not a lesser-included
charge of the originally indicted charges of first-degree CSC with a minor. 
See Campbell v. State, 342 S.C. 100, 102, 535 S.E.2d 928, 929
(2000) (holding committing lewd act on a minor is not a lesser-included offense
of first degree CSC on a minor).  At issue is whether Holston effectively waived
presentment to the grand jury for each guilty plea to lewd act on a child.

The outcome of this case is controlled by this
court’s recent decision in State v. Smalls, 354 S.C. 498, 581 S.E.2d
850 (Ct. App. 2003), petition for cert. filed (July 24, 2003).  In Smalls,
the accused had been indicted by a grand jury for second-degree lynching.  He
pled guilty to assault and battery of a high an aggravated nature (ABHAN) rather
than the lynching charge, and the trial court accepted his guilty plea.  Id.
at 499, 581 S.E.2d at 851. 

As in the instant case, the indictment in Smalls
was never amended to charge the accused with the different crime for which the
plea was entered.  The sentencing sheet, however, expressly referred to ABHAN
as the crime to which the accused pled guilty and was sentenced.  Id.
at 500, 581 S.E.2d at 851.  Because ABHAN was not a lesser-included offense
of second-degree lynching, the lynching indictment was never amended, and no
new indictment for ABHAN was prepared, the critical issue was whether the accused
had effectively waived presentment on the charge of ABHAN.  Id. at 500-01,
581 S.E.2d at 851-52.

The court ruled the plain language of the statutes
governing acceptance of guilty pleas, S.C. Code Ann. §§ 17-23-130 to -140 (2003),
together with case law regarding guilty pleas “requires preparation of a formal
indictment as a condition precedent to a valid waiver of presentment.”  Smalls,
354 S.C. at 503, 581 S.E.2d at 853.  Accordingly, the court held:  “Inasmuch
as no indictment was prepared charging [the accused] with ABHAN as required
by statute, no valid waiver of presentment to the grand jury could have been
accomplished and, in turn, the trial court was without jurisdiction to accept
the guilty plea.”  Id.  The court concluded that “[b]ecause ‘parties
cannot confer subject matter jurisdiction by consent,’ [the accused’s] signature
on the sentencing sheet was insufficient absent an indictment charging him with
ABHAN.”  Id. (quoting State v. Grim, 341 S.C. 63, 66, 533 S.E.2d
329, 330 (2000)).

Because the circumstances surrounding the indictment
and guilty plea process in the present case mirror those of the Smalls
case in every material respect, we find the same outcome is compelled here. 
In order for Holston’s signature to effectively waive presentment, the CSC indictments
against him should have been amended or new indictments charging him with committing
a lewd act on a minor should have been drafted.  Simply listing the lewd act
charge on the sentencing sheet signed by Holston did not satisfy the statutory
requirements.

For the above reasons and in light of this court’s
ruling in State v. Smalls, we find the trial court lacked subject matter
jurisdiction to accept Holston’s guilty pleas.

VACATED.

HOWARD, J., concurs.

KITTREDGE, J., concurs in a separate
opinion.

KITTREDGE, J.:  I concur only because I
am bound by the panel decision of this court in Smalls v. State, 354
S.C. 498, 581 S.E.2d 850 (Ct. App. 2003), petition for cert. filed (July
24, 2003). 

Kenneth Holston was properly indicted in Aiken
County for two counts of first-degree criminal sexual conduct with a minor. 
Following negotiations, he pled guilty to two counts of committing lewd acts
on a minor.  Holston received concurrent fifteen-year prison terms, concurrent
with a prior twenty-year sentence for second-degree criminal sexual conduct
with a minor.

The record is clear that at the time of the guilty
plea proceeding, all parties, including the able circuit judge, fully understood
that the offense of committing a lewd act on a minor is not a lesser included
offense of criminal sexual conduct with a minor. See State v. Campbell,
342 S.C. 100, 102, 535 S.E.2d 928, 929 (2000) (stating “[c]ommitting a lewd
act on a minor is not a lesser included offense of first degree criminal sexual
conduct on a minor”).  The circuit court conducted a proper voir dire
of Holston.  He was advised of his federal constitutional rights, as well as
his right to present the new charges to the grand jury.  Holston waived all
of these rights.  Furthermore, he signed the sentencing sheet expressly “Waiv[ing]
Presentment to Grand Jury.” [2]

In Smalls v. State, a panel of this court
held that this common practice of acquiring subject matter jurisdiction in the
general sessions courts of South Carolina is no longer sufficient.  See
Smalls, 354 S.C. at 503, 581 S.E.2d at 853.  Smalls construes
S.C. Code Ann. § 17-23-130 and 140 as mandating the “preparation of a formal
indictment as a condition precedent to a valid waiver of presentment.”  Id. 
In light of this court’s decision in State v. Smalls, I concur.

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

[2]         South Carolina Court Administration, pursuant to the February
5, 1999 order of the South Carolina Supreme Court, issued the uniform sentencing
sheet used here.  This sheet serves many important functions, two of which
warrant mention.  First, it satisfies the requirement that a waiver, to be
valid, must be in writing.  Second, it provides necessary tracking information,
such as applicable offense and CDR Code, regardless of the reference in the
caption to the number assigned to the original indictment.