State v. Tucker

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.

Thomas Mark Tucker,       
Appellant.

Appeal From Greenville County

Edward W. Miller, Circuit Court Judge

Unpublished Opinion No. 2004-UP-566

Submitted November 1, 2004 – Filed November
15, 2004

AFFIRMED

Jeffrey Falkner Wilkes, of Greenville, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy
Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley
W. Elliott, and Assistant Attorney General David Spencer, all of Columbia; and
Solicitor Robert M. Ariail, of Greenville, for Respondent.

PER CURIAM:  Thomas Mark Tucker (Tucker)
appeals his conviction following a guilty plea.  He argues that at the plea
hearing he maintained he acted in self-defense, and, therefore, the trial court
should not have entered a plea of guilty.  We affirm. [1]

FACTS

Tucker was indicted by a Greenville
County grand jury for criminal domestic violence of a high and aggravated nature. 
On September 27, 2002, Tucker struck his live-in girlfriend, Christy Rocket
(Rocket), several times with his fist.  She suffered facial fractures because
of the incident and was taken to a hospital in an ambulance where she underwent
emergency surgery.  

On July 10, 2003, Tucker appeared before the trial
court and was represented by his attorney, Mr. Paschal.  The following colloquy
took place between Tucker and the court:

THE COURT:  Now, that—and I understand you want to tender
a plea to criminal domestic violence of a high and aggravated nature, and that
carries up to ten years in prison.

Do you understand that?

DEFENDANT TUCKER:  Yes, sir.

THE COURT:  All right.  Understanding the nature of the
charges against you and the maximum possible punishment, how do you wish to
plead?

DEFENDANT TUCKER:  Guilty.

THE COURT:  Now, has anybody forced you, coerced you, threatened
you, or promised you anything in any way to get you to enter a plea of guilty?

DEFENDANT TUCKER:  No, sir.

THE COURT:  And are you doing it freely
and voluntarily?

DEFENDANT TUCKER: Yes, sir.

THE COURT:  Okay.  Do you understand that you have an absolute
right to a trial by jury where you would be presumed innocent unless and until
the Government could prove you guilty beyond any reasonable doubt of each and
every element of the offense that you’re charged with? 

DEFENDANT TUCKER:  Yes, sir.

THE COURT:  You have a right to confront and cross-examine
the witnesses and the evidence against you.  You’d have a right to compel in
court all relevant and competent evidence in your defense, or you could remain
silent and your silence cannot be held against you.  You can never be compelled
to incriminate yourself in a court of law in this country.

Do you understand all of those
rights?

DEFENDANT TUCKER:  Yes, sir.

THE COURT:  Do you want to waive and give up those rights
and plead guilty?

DEFENDANT TUCKER:  Yes, sir.

THE COURT:  Are you guilty?

DEFENDANT TUCKER:  Uh, yes, sir.

The State recited the facts of the case,
alleging that Rocket was Tucker’s live-in girlfriend and describing the altercation
that led to Tucker’s indictment.  The following exchange then took place:

THE COURT:  All right.  Mr. Tucker,
you’ve heard the recitation of the facts that the State believes they could
prove at trial.

I want to ask you if you agree
or disagree with that?

DEFENDANT TUCKER:  I don’t fully agree,
no, sir.

THE COURT:  All right.  If you would, tell me your version
of the facts.

DEFENDANT TUCKER:  I wasn’t really living with her.  The reason
we had the fuss to start with is I was going home that night.  She didn’t want
me to leave, chased me out to the car, and even going to the extent of getting
on the hood of the car so I couldn’t leave, took my keys from me.

I went back in the house with her trying to get my keys back. 
It turned into an argument and ended up in the bedroom arguing over trying to
get the keys back still.  All this, you know, to go home. 

And then the only reason I hit her is she hit me three times
with an iron that was plugged up first.

THE COURT:  I’m sorry.  Hit you three times with an iron? 
I didn’t hear that.

DEFENDANT TUCKER:  Yeah, three times.  It was plugged up. 
The first time was in the elbow, and then once around my forearm, I’ve got a
scar there still, and once on the side of the head.  

And, at that point, that’s when I just—actually, when I hit,
I had my eyes shut and everything.  I just swung to get her off of me.  I don’t
recall her being unconscious at all.  I looked at her.  I said, “Are you okay?” 
I said, “I’m sorry.”

I took her to the bathroom and got a towel.  There was no
blood in the bedroom.  I actually called 911 for her.  I went with her to the
hospital.  I stayed there all night with her until 7:00 that morning. 

The court next addressed Tucker’s claim
that he was not living with Rocket when the incident took place. 

THE COURT:  This is a guilty plea.

DEFENDANT TUCKER:  Right.

THE COURT:  And one of the—and, as I told you, the State has
got to prove beyond a reasonable doubt each of the elements of the offense that
you’re charged with.

DEFENDANT TUCKER:  Right.

THE COURT:  And that is an essential element of the charge. 
So if it is your position that you are not a household member with the alleged
victim in this case, then I’m not going to accept your guilty plea.

If you don’t feel that you were living there, then this is
not criminal domestic violence.

DEFENDANT TUCKER:  Well, all I’m—the whole story is she came
down from—she lived in North Carolina.  She came down.  She stayed at our house,
my parents.  I live at home still now.  She stayed with my parents until she
could find a place to live.

My dad actually helped her find that house.  It was a friend
of his that rented it.  And I had even told her, I was like, you know, I said,
I’ll help you some with money, whatever.  And I had stayed there some, but not
to the point of living there.  I lived at home.  Work—if I had to go to work
the next day, I would go home.

MR. PASCHAL:  But you had clothes and
–

DEFENDANT TUCKER:  I had a few clothes there.  I would change
sometimes when I went there after work.  But to say I lived there is not fully
true. 

 . . . .

THE COURT:  But you have described what might be construed
as a self-defense argument.  And I want to tell you that if you enter this guilty
plea and I accept it, that whatever defenses you may have, you waive and give
up the right to present those.  That doesn’t say you can’t present that information
as mitigation.

But just so you understand that if you have any question
as to the—whether or not you have a defense in this matter, if you plead and
I accept it, you give up your right to use that defense. 

Do you understand that?

DEFENDANT TUCKER:  Right. 

Subsequently, Tucker admitted that at times he
stayed with his parents while at other times he stayed with Rocket.  After “finding
that he was, in fact, a household member,” the court addressed the possibility
of a self-defense claim:

THE COURT:  How about the self-defense,
Mr. Paschal?

MR. PASCHAL:  Your Honor, I think you asked him about that
and I think he realizes that, but he’s not saying that he’s—

THE COURT:  All right.  Well, I’ll accept the plea as being
knowingly, intelligently, and voluntarily made with the advice of a very competent
attorney with whom he states he’s well satisfied, and there is a factual basis
for the plea.

On appeal, Tucker argues (1) the trial
court should not have entered a guilty plea because Tucker maintained that he
acted in self-defense, and (2) the court failed to conduct a sufficient inquiry
under. North Carolina v. Alford, 400 U.S. 25 (1970). 

LAW/ANALYSIS

I.  Self-Defense

First, Tucker argues the trial court erred
in accepting his plea because he maintained that he acted in self-defense. 
We disagree. 

Initially, this allegation is not properly before
this Court on direct appeal since the alleged error was not raised below.  In
the Interest of Antonio H., 324 S.C. 120, 477 S.E.2d 713 (1996) (proper
avenue in which to challenge guilty plea which is not objected to at time of
its entry is through post-conviction relief); State v. Williams, 303
S.C. 410, 401 S.E.2d 168 (1991) (defendant must object at first opportunity
to preserve issue for appellate review; alleged error must be raised to and
ruled on by trial judge); State v. McKinney, 278 S.C. 107, 292 S.E.2d
598 (1982) (absent timely objection at plea proceeding, unknowing and involuntary
nature of guilty plea can be attacked only through more appropriate channel
of post-conviction relief).

Moreover, as to the merits, we disagree with Tucker’s
claim that he did not admit culpability.  The trial court thoroughly informed
Tucker of his various constitutional rights.  Tucker indicated he understood
his rights and that he wanted to give up those rights and plead guilty:

THE COURT:  Do you want to waive and give up those rights
and plead guilty?

DEFENDANT TUCKER:  Yes, sir.

THE COURT:  Are you guilty?

DEFENDANT TUCKER:  Uh, yes, sir. 

If Tucker felt that he was not guilty, or that he
wanted to assert a defense, he should not have admitted guilt, and he should
not have entered a guilty plea. 

Further, the trial court specifically stated that
“you have described what might be construed as a self-defense argument” and
informed Tucker that by pleading guilty, he waived any defenses that he may
have had.  Again, Tucker indicated that he understood.  Consequently, we are
convinced that Tucker entered a plea of guilty and waived any potential claim
of self-defense.  See State v. Thomason, 341 S.C. 524, 534 S.E.2d
708 (Ct. App. 2000) (finding a guilty plea admits all elements of the offense
charged, leaves open for review only the sufficiency of the indictment, and
waives all other defenses).

II.  North Carolina v. Alford

Next, Tucker argues that due to the absence
of an admission of culpability, the court failed to conduct sufficient inquiry
under North Carolina v. Alford, 400 U.S. 25 (1970).  We disagree.

As with the self-defense argument, this argument
is not properly before this Court because Tucker did not raise an objection
at the plea hearing.  In the Interest of Antonio H., 324 S.C. 120, 477
S.E.2d 713 (1996) (proper avenue in which to challenge guilty plea which is
not objected to at time of its entry is through post-conviction relief); State
v. Williams, 303 S.C. 410, 401 S.E.2d 168 (1991) (defendant must object
at first opportunity to preserve issue for appellate review; alleged error must
be raised to and ruled on by trial judge); State v. McKinney, 278 S.C.
107, 292 S.E.2d 598 (1982) (absent timely objection at plea proceeding, unknowing
and involuntary nature of guilty plea can be attacked only through more appropriate
channel of post-conviction relief).

Nonetheless, we find this argument without merit. 
Tucker did admit culpability, and he entered a guilty plea.  Therefore, the
court had no reason to alternatively accept the plea under Alford; that
case has no application here. 

CONCLUSION

Based on the foregoing, the decision of the circuit
court is

AFFIRMED.

ANDERSON, STILWELL, and SHORT, JJ., concur.

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