Vol. 8, No. 4, Pg. 14. Building A Better Guilty Plea.

• Author: By the Hon. John L. Breeden Jr. and Douglas M. Zayicek

South Carolina Lawyer

1997.

Vol. 8, No. 4, Pg. 14.

Building A Better Guilty Plea

14Building A Better Guilty PleaBy the Hon. John L. Breeden Jr. and Douglas M. ZayicekA guilty plea is a confession made in a formal manner and is equivalent to and as binding as a conviction after a trial on the merits. It has the same legal effect as a verdict of guilty and authorizes the imposition of any punishment allowed by law. Bailey v. MacDougall, 247 S.C. 1, 145 S.E.2d 425 (1965). A plea consists of a colloquy between the judge and the defendant, along with comments from the state, defense counsel, defendant and victims if they wish to speak.

The General Sessions docket is generally dominated by guilty pleas. Although pleas appear monotonous and repetitious, each plea encompasses a web of procedural and substantive due process safeguards. These safeguards are evidenced by the countless pleas that are collaterally attacked through post conviction relief (PCR) proceedings each year.

This article will discuss several ways guilty pleas can be made more immune from collateral attack. Here, the subtleties of Alford pleas, nolo contendere pleas, negotiated pleas, the withdrawing of pleas and alternative sentencing are ignored.

A winning football team requires all players to be in synch on game day. Similarly, building a better guilty plea, (i.e., one that is more immune from collateral attack) requires the teamwork and synchronization of the solicitor, defense counsel and trial judge. Each player on the "plea team" has an interest in seeing properly handled pleas. The judge generally does not enjoy being reversed. Defense counsel generally do not enjoy defending

16ineffective assistance of counsel claims. And the state generally does not enjoy having a plea overturned due to a clerical error in the indictment, for example.

A football team's ultimate goal is a perfect record. A perfect record should also be the goal of the guilty plea team. With few exceptions, most bases for collateral attacks on guilty pleas can be eliminated on the record during the taking of a plea. Even when a defect is cured before the taking of a plea, it is usually in each party's best interest to disclose the defect and its cure on the record. A complete record not only furthers the fundamental fairness of a plea, but also promotes judicial economy by helping to streamline PCR proceedings and appeals.

Each member on the guilty plea team fills a role. Although there are some shared roles and responsibilities, each party has certain primary responsibilities.

THE ROLE OF THE SOLICITOR

The solicitor has the responsibility of providing the court with subject matter jurisdiction. The solicitor is like a center on a football team, and it is the solicitor's responsibility to "snap" a clean plea to the judge.

The solicitor must clear several jurisdictional hurdles before a court can accept a plea. First, the decision to allow a defendant to plea bargain is solely within the discretion of the solicitor. State v. Thrift, 312 S.C. 282, 440 S.E.2d 341 (1994). A defendant has no constitutional right to plea bargain. State v. Easier, S.C. ___, S.E.2d (S.C. Ct. App. 1996) (Op. #2512); State v. Wilkens, 310 S.C. 81, 495 S.E.2d 68 (S.C. Ct. App. 1992) (citing State v. Whitted, 279 S.C. 260, 305 S.E.2d 245 (1983)).

Second, the decision to accept a plea is solely within the discretion of the trial judge. State v. Rosier, 312 S.C. 145, 439 S.E.2d 307 (S.C. Ct. App. 1993). In other words, no one can force the solicitor (the executive branch) to enter into a plea arrangement, and no one can force a judge to accept a plea.

Finally, a court does not have jurisdiction to take a plea unless there has been (1) an indictment; (2) a waiver of indictment; or (3) the charge being pled is a lesser included offense of the charge in the indictment. Hopkins v. State, S.C. __, 451 S.E.2d 389 (1994); Murdock v. State, 308 S.C. 143, 417 S.E.2d 543) (1992). The indictment is an area of subject matter jurisdiction that is fraught with potential problems. For example:

(1) The parties cannot confer jurisdiction to plead by consent. Plante v. State, S.C. 446 S.E.2d 437 (1994);

(2) The indictment cannot charge a nonexistent offense. Whitner v. State, S.C. S.E.2d (S.C. 1996) (Op. #24468);

(3) If an indictment is allowed to be amended, it must actually be amended. State v. Lindsay, UP #96-UP-192;

(4) If an indictment is not true billed by a grand jury, there must be a written waiver of indictment. S.C. Code Ann. §§ 17-23-130, -140, Summerall v. State, 278 S.C. 255, 294 S.E.2d 344 (1982);

(5) Each charge must appear on the indictment and be either presented to the grand jury or waived. State v. McNeil,_ S.C. __...