Vol. 11, No. 5, Pg. 28. Taking Your Right to Trial Without Recrimination: Uniform Sentences Without the Guidelines.

• Author: By J. Stephen Welch

South Carolina Lawyer

2000.

Vol. 11, No. 5, Pg. 28.

Taking Your Right to Trial Without Recrimination: Uniform Sentences Without the Guidelines

28Taking Your Right to Trial Without Recrimination: Uniform Sentences Without the GuidelinesBy J. Stephen Welch29The recent Supreme Court case of Davis v. State (Opinion No. 24986, Shearouse Adv. Sh. No. 27, Aug. 21, 1999), was a welcome breath of fresh air to those of us in the defense bar. In Davis, the Supreme Court once again held that a judge cannot consider whether or not a defendant took advantage of a jury trial (versus a negotiated plea) when crafting a sentence. However, even though the holding in the Davis case is clear, and has been the law in South Carolina for quite some time, it is going to be difficult, if not impossible, to apply in everyday practice.

30FACTS

In Davis, Mr. Davis filed a PCR application alleging ineffective assistance of counsel. In his application, Davis alleged his counsel was ineffective for the following reasons: Trial counsel did not object to the testimony that petitioner refused to cooperate with the police after he was arrested; trial counsel failed to move for directed verdict of acquittal on the charge of distribution of crack cocaine; and trial counsel failed to object when the trial court sentenced him more harshly for exercising his right to a jury trial.

On the facts of the case, the Supreme Court held that counsel was, in fact, ineffective in not objecting to the sentence handed down. However, this is a peculiar set of facts (with codefendant sentencing) that may be hard to replicate in everyday practice.

Davis had gone to trial on one count of Distribution of Crack Cocaine. The jury found him guilty, and the judge sentenced him to 10 years in prison. His lawyer subsequently made a Motion for Reconsideration or Reduction of Sentence, apparently based on the fact that Davis had no prior record and that two other codefendants had received lighter sentences.

The two codefendants were J.J. (who received a sentence of seven years) and Dubois (who received 18 months). These two sentences were plea bargains, although Davis had apparently also tried to work out a plea through negotiation.

At the motion hearing, the sentencing judge clearly stated: "Yes, ma'am, but he didn't plead guilty. Those other two people, they pled guilty. They admitted what they had done...