State v. Blackwell

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Nearin Blackwell-Selim, Appellant.

Appellate Case No. 2011-192328

Appeal From Horry County
Steven H. John, Circuit Court Judge

Unpublished Opinion No. 2012-UP-566
Heard October 4, 2012 – Filed October 24, 2012

AFFIRMED

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

Attorney General Alan Wilson, Chief Deputy Attorney
General John W. McIntosh, Senior Assistant Deputy
Attorney General Salley W. Elliott, and Assistant
Attorney General Christina J. Catoe, all of Columbia, and
Solicitor J. Gregory Hembree, of Conway, for
Respondent.
PER CURIAM: On January 4, 2007, Nearin Blackwell-Selim pled guilty to
voluntary manslaughter, and the circuit court sentenced her to twenty years in
prison. Blackwell-Selim moved the court to find her eligible for early parole based
on South Carolina Code section 16-25-90 (Supp. 2011), which entitles a defendant
to be considered for parole after serving one quarter of a sentence if credible
evidence is presented to show a history of suffering domestic violence at the hands
of the victim. After giving Blackwell-Selim an opportunity to put forth evidence,
the court denied her early parole.

The court of appeals affirmed, finding the record supported the circuit court's
determination that Blackwell-Selim did not produce credible evidence of domestic
violence between the parties. State v. Blackwell-Selim, 385 S.C. 394, 399, 684
S.E.2d 208, 210 (Ct. App. 2009). The supreme court vacated the opinion of the
court of appeals and remanded the case because the circuit court "failed to make
specific findings of fact to support [its] ruling." State v. Blackwell-Selim, 392 S.C.
1, 4, 707 S.E.2d 426, 428 (2011) (per curiam). In its opinion, the supreme court
remanded "the matter to the circuit court to make specific findings of fact
regarding the ruling the petitioner was not entitled to early parole eligibility
pursuant to [section] 16-25-90." Blackwell-Selim, 392 S.C. at 4, 707 S.E.2d at 428.

At the second sentencing hearing, Blackwell-Selim offered new evidence in
addition to the evidence presented at the initial sentencing hearing. Although the
circuit court allowed her to present the new evidence, the court stated it would not
consider it because the evidence was not before the court at the initial sentencing
hearing. After the presentation of evidence and in accordance with the supreme
court's opinion, the circuit court specifically found Blackwell-Selim was not
eligible for parole pursuant to section 16-25-90 and issued an order denying her
request.

Blackwell-Selim appeals only the circuit court's lack of specific factual findings as
to the additional evidence presented at the second sentencing hearing. She does
not challenge the evidence originally presented at the first sentencing hearing, the
merits of the ruling based on the original evidence, or the circuit court's decision
not to consider additional evidence at the second sentencing hearing. See
208(b)(1)(B), SCACR ("The brief of appellant shall contain. . . [a] statement of
each of the issues presented for review. . . . Ordinarily, no point will be considered
which is not set forth in the statement of the issues on appeal.").
A person who is convicted of or pleads guilty to an offense against a household
member is eligible for parole after serving one-fourth of his or her prison term if
the person presents credible evidence of a history of criminal domestic violence
suffered at the hands of the household member. S.C. Code Ann. § 16-25-90 (Supp.
2011). Such a history of criminal domestic violence must be proven by a
preponderance of the evidence. State v. Grooms, 343 S.C. 248, 254, 540 S.E.2d
99, 102 (2000). In ruling on parole eligibility or ineligibility, the court must make
specific findings of fact. Blackwell-Selim, 392 S.C. at 3, 707 S.E.2d at 428.

Whether or not a trial court may consider additional evidence on remand depends
on the purpose of the remand. State v. Frey, 362 S.C. 511, 514, 608 S.E.2d 874,
876 (Ct. App. 2005). When an appellate court remands a case to a trial court to
address issues not fully developed during the trial, it is appropriate for the trial
court to consider new evidence. Id. However, when a remand is not for this
purpose, a party should not be allowed a "second evidentiary hearing." Id.

In this case, the supreme court remanded the case to the circuit court "to make
specific findings of fact regarding the ruling the petitioner was not entitled to early
parole eligibility pursuant to [section] 16-25-90." Blackwell-Selim, 392 at 4, 707
S.E.2d at 428. There were no issues that were not fully addressed and developed
during the original sentencing hearing; instead the remand was for a determination
of specific findings on the evidence already presented. Thus, there was no
requirement that the circuit court consider or make specific findings of fact as to
the new evidence. We find no error.

AFFIRMED.

FEW, C.J., and WILLIAMS and PIEPER, JJ., concur.