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South Carolina Parole Elimination Violates Ex Post Facto
The South Carolina supreme court held that the retroactive statutory elimination of parole eligibility for violent offenders violates the ex post facto clause provisions of the United States and South Carolina constitutions.
Ronnie Phillips, a South Carolina state prisoner, pled guilty in 1987 to four counts of first degree burglary. At the time of his plea Phillips had a prior robbery conviction. However, armed robbery was not defined as a "violent" crime at the time Phillips committed it. See: SC Code.Ann § 16-160. Another statute, SC Code.Ann § 24-21-640 denied parole eligibility to offenders serving a second or subsequent conviction for a violent crime. At the time of his 1987 guilty plea Phillips was eligible for early release from prison on parole.
In 1993 § 24-21-640 was amended to state that it had prospective effect only. In 1995 the statute was amended again, eliminating language about the law's prospective effect. Phillips was notified by the state that due to his 1982 robbery conviction he was no longer parole eligible. Phillips filed a Post Conviction Relief (PCR) petition in the Greenville County court of common pleas, claiming the retroactive denial of parole eligibility violated his rights under the ex post facto clause. The court agreed and granted the petition. The court ordered the South Carolina Department of Probation, Parole and Pardon Services to reclassify Phillips' convictions and grant him a parole hearing in accordance with the law in effect at the time of his convictions. In the alternative, Phillips should be allowed to withdraw his guilty plea.
The South Carolina supreme court affirmed. The court rejected the state's argument that California Dept. of Corrections v. Morales, 115 S.Ct. 1597 (1995) permits the retroactive denial of parole eligibility. "The PCR judge held, and we agree, that respondent's circumstances -- the complete extinguishment of parole eligibility -- clearly distinguishes his case from Morales . Nothing in Morales , a very limited decision, suggests that the retroactive elimination of parole altogether could survive an ex post facto challenge. We affirm the circuit judge's order finding that retroactive application of § 161-60 so as to deny respondent parole eligibility violates his ex post facto rights, and requiring respondent be reclassified, and that he be afforded parole hearings in accordance with his reclassification." See: Phillips v. State of South Carolina, 504 So.2d 111 (South Carolina 1998).
Ronnie Phillips, a South Carolina state prisoner, pled guilty in 1987 to four counts of first degree burglary. At the time of his plea Phillips had a prior robbery conviction. However, armed robbery was not defined as a "violent" crime at the time Phillips committed it. See: SC Code.Ann § 16-160. Another statute, SC Code.Ann § 24-21-640 denied parole eligibility to offenders serving a second or subsequent conviction for a violent crime. At the time of his 1987 guilty plea Phillips was eligible for early release from prison on parole.
In 1993 § 24-21-640 was amended to state that it had prospective effect only. In 1995 the statute was amended again, eliminating language about the law's prospective effect. Phillips was notified by the state that due to his 1982 robbery conviction he was no longer parole eligible. Phillips filed a Post Conviction Relief (PCR) petition in the Greenville County court of common pleas, claiming the retroactive denial of parole eligibility violated his rights under the ex post facto clause. The court agreed and granted the petition. The court ordered the South Carolina Department of Probation, Parole and Pardon Services to reclassify Phillips' convictions and grant him a parole hearing in accordance with the law in effect at the time of his convictions. In the alternative, Phillips should be allowed to withdraw his guilty plea.
The South Carolina supreme court affirmed. The court rejected the state's argument that California Dept. of Corrections v. Morales, 115 S.Ct. 1597 (1995) permits the retroactive denial of parole eligibility. "The PCR judge held, and we agree, that respondent's circumstances -- the complete extinguishment of parole eligibility -- clearly distinguishes his case from Morales . Nothing in Morales , a very limited decision, suggests that the retroactive elimination of parole altogether could survive an ex post facto challenge. We affirm the circuit judge's order finding that retroactive application of § 161-60 so as to deny respondent parole eligibility violates his ex post facto rights, and requiring respondent be reclassified, and that he be afforded parole hearings in accordance with his reclassification." See: Phillips v. State of South Carolina, 504 So.2d 111 (South Carolina 1998).
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Related legal case
Phillips v. State of South Carolina
| Year | 1998 |
|---|---|
| Cite | 504 So.2d 111 (South Carolina 1998) |
| Level | State Supreme Court |
Phillips v. State, No. 24820 (S.C. 07/20/1998)
[1] South Carolina Supreme Court
[2] Opinion No. 24820
[3] 1998.SC.370
[4] July 20, 1998
[5] RONNIE L. PHILLIPS, RESPONDENT,
v.
STATE OF SOUTH CAROLINA, PETITIONER.
[6] Attorney General Charles M. Condon, Deputy Attorney General John W. McIntosh, and Assistant Deputy Attorney General Teresa A. Knox, all of Columbia, for petitioner. Wanda H. Haile, of South Carolina Office of Appellate Defense, of Columbia, for respondent.
[7] Toal, Moore and Waller, JJ., concur. Burnett, A.j., not participating
[8] The opinion of the court was delivered by: Finney, C.j.:
[9] PHILLIPS v. STATE OF SOUTH CAROLINA
[10] Davis Adv. Sh. No. 26
[11] S.E. 2d
[12] ON WRIT OF CERTIORARI
[13] Appeal From Greenville County Thomas L. Hughston, Jr., Post-Conviction Judge Frank Eppes, Jr., Trial Judge
[14] Submitted May 27, 1998
[15] AFFIRMED
[16] In this post-conviction relief (PCR) action, the circuit court granted respondent relief, finding the retroactive application of a statute denying respondent parole eligibility violated his ex post facto rights. The Court granted the State's petition for a writ of certiorari. We affirm.
[17] In 1986 and 1987, respondent committed numerous crimes, including first degree burglaries. He ultimately pled guilty in 1987 to several charges, including four counts of first degree burglary. Respondent had a 1982 conviction for armed robbery. At the time respondent committed the armed robbery, however, it was not defined as a violent crime.*fn1 Although the burglaries were defined as violent crimes under § 16-1-60, the parole eligibility statute only denied parole to those "serving a sentence for a second or subsequent conviction, for violent crimes. . . . ." § 24-21-640 (Supp. 1997).*fn2 Consequently, respondent was parole eligible at the time of the 1987 burglary pleas.
[18] In 1993, the violent crimes statute was amended to provide, among other things, that it had prospective effect only. 1993 Act No. 184, § S. The first 1995 amendment explicitly continued this policy. 1995 Act No. 7, Part 1, § 3. A second 1995 amendment*fn3 eliminated this language, however, and the Department of Probation, Parole, and Pardon Services notified respondent that he was no longer parole eligible since he was deemed to have "a second or subsequent conviction. . . . for violent crimes" under § 24-21-640 in light of the 1982 armed robbery plea. Respondent then brought this PCR action challenging the application of the revised violent crimes statute to him, alleging that to do so violated his ex post facto rights.
[19] A retroactive change in state law which inflicts a greater punishment for a crime than that which applied when the criminal act was committed violates the ex post facto clauses of the federal and state constitutions. U.S. Const. Art. I, § 10; S.C. Const. Art. I, § 4. An increase in parole eligibility from ten to twenty years has been found to violate both clauses. State v. Matthews, 296 S.C. 379, 373 S.E.2d 587 (1988) subsequent history omitted. Whether a legislative "adjustment" to parole and sentencing procedures violates the federal clause is a matter of degree. California Dep't of Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995).
[20] In Morales, the prisoner was eligible for annual parole review at the time he committed his second murder (while on parole for his first). Subsequently, a statute was enacted which permitted the parole board to defer parole hearings for up to three years for prisoners convicted of "more than one offense which involves the taking of a life" if the board "finds that it is not reasonable to expect that the parole would be granted at a hearing during the following years and states the bases for its findings." Cal. Penal Code Ann. § 3041.5 (b)(2)(West 1982). Morales challenged this statutory change which could reduce the frequency of his parole reconsideration hearings.
[21] The United States Supreme Court held the statutory change did not violate Morales' federal constitutional ex post facto rights because it "creates only the most speculative and attenuated possibility of producing the prohibited effect of increasing the measure of punishment . . . . ." Morales, 115 S.Ct. at 1603. In reaching this conclusion, the Court noted:
[22] (1) The amendment applied only to a narrow class of prisoners, those serving time for more than one killing, "for whom the likelihood of parole is quite remote";
[23] (2) Prisoners still receive their initial eligibility hearing at the time fixed when they committed the offense;
[24] (3) The parole board's authority is carefully tailored to require it to make particularized findings in altering the frequency of subsequent hearings based on the circumstances of the individual prisoner; and
[25] (4) California procedure allows for expedited hearings and flexible release dates in the event a prisoner becomes "parole-worthy" before the time fixed for his subsequent hearing.
[26] The State argues that in light of Morales, it may constitutionally apply the amended version of § 16-1-60 to respondent. We disagree. The PCR Judge held, and we agree, that respondent's circumstances- the complete extinguishment of parole eligibility- clearly distinguished his case from Morales. Nothing in Morales, a very limited decision, suggests that the retroactive elimination of parole altogether could survive an ex post facto challenge. We affirm the circuit Judge's order finding that retroactive application of § 16-1-60 so as to deny respondent parole eligibility violates his ex post facto rights, and requiring respondent be reclassified, and that he be afforded parole hearings in accordance with his reclassification.
[27] We note that both the PCR Judge and the parties have engaged in a Discussion of Morales' impact on cases interpreting state statutes which alter the frequency of parole eligibility hearings. e.g., Griffin v. State, 315 S.C. 285, 433 S.E.2d 862 (1993). We decline to engage in such an analysis, which would clearly be mere dicta here, since respondent's case involves an entirely separate statutory change. For the reasons given above, the order granting respondent post-conviction relief is AFFIRMED.
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Opinion Footnotes
--------------------------------------------------------------------------------
[28] *fn1 The statute defining violent crimes, S.C. Code Ann. § 16-1-60, was not enacted until 1986.
[29] *fn2 The relevant language has not been altered in the statutory amendments made between 1986 and 1997.
[30] *fn3 1995 Act. No. 83, § 9.
[1] South Carolina Supreme Court
[2] Opinion No. 24820
[3] 1998.SC.370
[4] July 20, 1998
[5] RONNIE L. PHILLIPS, RESPONDENT,
v.
STATE OF SOUTH CAROLINA, PETITIONER.
[6] Attorney General Charles M. Condon, Deputy Attorney General John W. McIntosh, and Assistant Deputy Attorney General Teresa A. Knox, all of Columbia, for petitioner. Wanda H. Haile, of South Carolina Office of Appellate Defense, of Columbia, for respondent.
[7] Toal, Moore and Waller, JJ., concur. Burnett, A.j., not participating
[8] The opinion of the court was delivered by: Finney, C.j.:
[9] PHILLIPS v. STATE OF SOUTH CAROLINA
[10] Davis Adv. Sh. No. 26
[11] S.E. 2d
[12] ON WRIT OF CERTIORARI
[13] Appeal From Greenville County Thomas L. Hughston, Jr., Post-Conviction Judge Frank Eppes, Jr., Trial Judge
[14] Submitted May 27, 1998
[15] AFFIRMED
[16] In this post-conviction relief (PCR) action, the circuit court granted respondent relief, finding the retroactive application of a statute denying respondent parole eligibility violated his ex post facto rights. The Court granted the State's petition for a writ of certiorari. We affirm.
[17] In 1986 and 1987, respondent committed numerous crimes, including first degree burglaries. He ultimately pled guilty in 1987 to several charges, including four counts of first degree burglary. Respondent had a 1982 conviction for armed robbery. At the time respondent committed the armed robbery, however, it was not defined as a violent crime.*fn1 Although the burglaries were defined as violent crimes under § 16-1-60, the parole eligibility statute only denied parole to those "serving a sentence for a second or subsequent conviction, for violent crimes. . . . ." § 24-21-640 (Supp. 1997).*fn2 Consequently, respondent was parole eligible at the time of the 1987 burglary pleas.
[18] In 1993, the violent crimes statute was amended to provide, among other things, that it had prospective effect only. 1993 Act No. 184, § S. The first 1995 amendment explicitly continued this policy. 1995 Act No. 7, Part 1, § 3. A second 1995 amendment*fn3 eliminated this language, however, and the Department of Probation, Parole, and Pardon Services notified respondent that he was no longer parole eligible since he was deemed to have "a second or subsequent conviction. . . . for violent crimes" under § 24-21-640 in light of the 1982 armed robbery plea. Respondent then brought this PCR action challenging the application of the revised violent crimes statute to him, alleging that to do so violated his ex post facto rights.
[19] A retroactive change in state law which inflicts a greater punishment for a crime than that which applied when the criminal act was committed violates the ex post facto clauses of the federal and state constitutions. U.S. Const. Art. I, § 10; S.C. Const. Art. I, § 4. An increase in parole eligibility from ten to twenty years has been found to violate both clauses. State v. Matthews, 296 S.C. 379, 373 S.E.2d 587 (1988) subsequent history omitted. Whether a legislative "adjustment" to parole and sentencing procedures violates the federal clause is a matter of degree. California Dep't of Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995).
[20] In Morales, the prisoner was eligible for annual parole review at the time he committed his second murder (while on parole for his first). Subsequently, a statute was enacted which permitted the parole board to defer parole hearings for up to three years for prisoners convicted of "more than one offense which involves the taking of a life" if the board "finds that it is not reasonable to expect that the parole would be granted at a hearing during the following years and states the bases for its findings." Cal. Penal Code Ann. § 3041.5 (b)(2)(West 1982). Morales challenged this statutory change which could reduce the frequency of his parole reconsideration hearings.
[21] The United States Supreme Court held the statutory change did not violate Morales' federal constitutional ex post facto rights because it "creates only the most speculative and attenuated possibility of producing the prohibited effect of increasing the measure of punishment . . . . ." Morales, 115 S.Ct. at 1603. In reaching this conclusion, the Court noted:
[22] (1) The amendment applied only to a narrow class of prisoners, those serving time for more than one killing, "for whom the likelihood of parole is quite remote";
[23] (2) Prisoners still receive their initial eligibility hearing at the time fixed when they committed the offense;
[24] (3) The parole board's authority is carefully tailored to require it to make particularized findings in altering the frequency of subsequent hearings based on the circumstances of the individual prisoner; and
[25] (4) California procedure allows for expedited hearings and flexible release dates in the event a prisoner becomes "parole-worthy" before the time fixed for his subsequent hearing.
[26] The State argues that in light of Morales, it may constitutionally apply the amended version of § 16-1-60 to respondent. We disagree. The PCR Judge held, and we agree, that respondent's circumstances- the complete extinguishment of parole eligibility- clearly distinguished his case from Morales. Nothing in Morales, a very limited decision, suggests that the retroactive elimination of parole altogether could survive an ex post facto challenge. We affirm the circuit Judge's order finding that retroactive application of § 16-1-60 so as to deny respondent parole eligibility violates his ex post facto rights, and requiring respondent be reclassified, and that he be afforded parole hearings in accordance with his reclassification.
[27] We note that both the PCR Judge and the parties have engaged in a Discussion of Morales' impact on cases interpreting state statutes which alter the frequency of parole eligibility hearings. e.g., Griffin v. State, 315 S.C. 285, 433 S.E.2d 862 (1993). We decline to engage in such an analysis, which would clearly be mere dicta here, since respondent's case involves an entirely separate statutory change. For the reasons given above, the order granting respondent post-conviction relief is AFFIRMED.
--------------------------------------------------------------------------------
Opinion Footnotes
--------------------------------------------------------------------------------
[28] *fn1 The statute defining violent crimes, S.C. Code Ann. § 16-1-60, was not enacted until 1986.
[29] *fn2 The relevant language has not been altered in the statutory amendments made between 1986 and 1997.
[30] *fn3 1995 Act. No. 83, § 9.