State v. Walker

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.

Phillip Wesley Walker, Appellant.

Appellate Case No. 2017-002204

Appeal From Anderson County
R. Lawton McIntosh, Circuit Court Judge

Unpublished Opinion No. 2020-UP-290
Heard September 10, 2020 – Filed October 14, 2020

AFFIRMED

E. Charles Grose, Jr., of Grose Law Firm, of Greenwood,
for Appellant.

Attorney General Alan McCrory Wilson and Senior
Assistant Attorney General David A. Spencer, both of
Columbia; and Solicitor David Rhys Wagner, Jr., of
Anderson, all for Respondent.

PER CURIAM: After a trial held in his absence, a jury convicted Phillip Wesley
Walker of armed robbery and possession of a weapon during the commission of a
violent crime. On appeal, he argues the trial court erred by denying his motion to
continue the trial. We affirm.

I.

An Anderson County grand jury indicted Walker for armed robbery and possession
of a weapon during the commission of a violent crime, alleging he stole $240 from
a Family Dollar Store while brandishing a gun at an employee. Before trial, the trial
court explained it intended to deny Walker's counsel's motion for a continuance
made in chambers and indicated Walker's counsel should renew the motion on the
record. On the record, Walker's counsel stated,

I move for a continuance based on that [Walker] is not
here. The best alternative is for the State to wait and try
him when he is here. And based on that, I've been in
contact with him. I don't have any idea why he's not here.
I don't understand why he's not here, but I'd ask the Court
for a continuance.

The trial court denied the motion.

Right before trial began, Walker's counsel renewed his continuance request based
on Walker's absence, which the trial court again denied. The jury found Walker
guilty on both indictments, and the trial court sealed his sentence. When Walker
was located, the trial court unsealed the sentence and sentenced Walker to concurrent
sentences of twenty years' imprisonment for armed robbery and five years'
imprisonment for possession of a weapon during the commission of a violent crime.

II.

Walker contends the trial court erred by denying his continuance motion and trying
him in his absence because it did not make findings required by Rule 16, SCRCrimP,
that he received: (1) notice of his right to be present at trial and (2) a warning he
would be tried in his absence if he failed to appear. See, e.g., State v. Wrapp, 421
S.C. 531, 535, 808 S.E.2d 821, 823 (Ct. App. 2017). The State asserts Walker failed
to raise this issue to the trial court, and it is therefore unpreserved for appellate
review. We agree.

Walker's Rule 16, SCRCrimP objection is not preserved because he did not
specifically object to a trial in absentia or argue to the trial court that he did not
receive notice of the trial or was unaware the trial would proceed in his absence. A
motion for a continuance is not in itself enough to preserve a Rule 16, SCRCrimP
objection. See State v. Hoffman, 312 S.C. 386, 393, 440 S.E.2d 869, 873 (1994)
(providing a defendant must make a contemporaneous objection on a specific ground
to preserve an error for appellate review); State v. Williams, 292 S.C. 231, 232, 355
S.E.2d 861, 862 (1987) ("In order to claim the protection afforded by [former]
Criminal Practice Rule 3, a defendant or his attorney must object at the first
opportunity to do so."); id. at 232–33, 355 S.E.2d at 862 (holding "neither appellant
nor his attorney objected to the trial having begun in appellant's absence. Any error
under [Rule 16, SCRCrimP,] was therefore waived"); cf. State v. Ravenell, 387 S.C.
449, 456–57, 692 S.E.2d 554, 558 (Ct. App. 2010) (noting it was "arguable"
Ravenell's motion for a continuance was insufficient to constitute an objection to
trial in absence but nevertheless addressing merits on appeal and concluding trial
court made requisite Rule 16 findings); Wrapp, 421 S.C. at 536, 808 S.E.2d at 823
(finding continuance motion coupled with objection "to the trial proceeding due to
the lack of adequate notice to Wrapp" enough to preserve objection on appeal).
Walker's counsel proposed no good cause for a continuance, and therefore, the trial
court's ruling denying his request for one was within the wide bounds discretion sets,
and we discern no legal or factual error. See State v. Lytchfield, 230 S.C. 405, 409,
95 S.E.2d 857, 859 (1957) ("[R]eversals of refusal of continuance are about as rare
as the proverbial hens' teeth."); Rule 7, SCRCrimP (providing continuance may
granted "only upon a showing of good and sufficient legal cause").

AFFIRMED.

THOMAS, HILL, and HEWITT, JJ., concur.