SC Dept. of Probation, Parole and Pardon Services

1. SC Dept. of Probation, Parole and Pardon Services SC Public Defenders’ Conference Legal Update September 22-24, 2014

2. State v. Anthony NationOpinion No. 27408 (Heard Feb. 5, 2014 – Filed July 2, 2014) • This case is strikingly similar to State v. Dykes. Offender convicted of Lewd Act with a Minor prior to Jessie’s Law. He violates his probation and is then required to monitored with a GPS device by the Department. • He appealed. Supreme Court refers to the holding in State v. Dykes, upholding Jessie’s Law except that it struck the last sentence of subsection (H) of S.C. Code §23-3-540. Now, an offender under GPS tracking can seek judicial review of the monitoring after ten years with the device, and every five years after that. • The Court held that the GPS monitoring is a civil requirement, not a criminal punishment. • 3-2 decision, with CJ Toal writing the majority, and Hearn writing the dissent with Beatty concurring.

3. State v. BrannonAppellate Opinion No. 5204 (Heard Dec. 16, 2013 – Filed March 5, 2014) • This case involved an offender who signed a waiver of his right to counsel and a hearing. He was revoked five months. • The Appellate Court did not find see in the record where the judge made a finding that Brannon knowingly and willingly waived his rights to counsel or to a hearing, so the case was remanded for that determination. (He did.)

4. State v. BlakneyAppellate Opinion 5266 (Heard June 2, 2014 – Filed Aug. 20, 2014) • Community Supervision case. • Mr. Blakney was convicted of Burglary 1st degree, and was sentenced to 15 years suspended to the service of 30 months. (This was prior to State v. Jacobs determining that the court cannot suspend the minimum 15 years of a first degree burglary.) • After serving 85% of his 30 months, he was released to Community Supervision. He was violated, revoked time served, then he violated again. He was revoked time served, then violated again.

5. Blakney, Cont. • His last two revocations were appealed, and then consolidated. Blakney’s counsel argued that he had completed the remaining 15% of his incarceration, and should be off CSP. • Argument: he had satisfied the 15 percent of the 30 months he had originally been sentenced, and there was no probation that was ordered similar to State v. Picklesimer, 388 S.C. 264 (2010). • Holding: Picklesimer still controls. The suspended portion of the sentence is still part of the “original sentence” and applies to all CSP revocations, regardless if the individual had originally been sentenced to probation.

6. Blakney, Cont. • Dissent by C.J. Few: He took issue with the fact that the sentence was illegal. Since the solicitor agreed to it, the Department should be bound by the plea agreement and take Mr. Blakney off CSP. (Since the court could not suspend any portion of the sentence, there is no suspended sentence.) • This Case is currently under a request for a reconsideration, and will likely be appealed to the Supreme Court following the Court of Appeals’ final decision.

7. State v. Picklesimer, 388 S.C. 264, 695 S.E.2d 845 (2010) • Court clarified State v. McGrier and changed the way the Department must interpret and calculate CSP revocation and supervision time. • Maximum aggregate “service time” cannot exceed the “original sentence.”

8. State v. Picklesimer, 388 S.C. 264,695 S.E.2d 845 (2010) • Original Sentence: includes both the active and suspended portions imposed by the sentencing court. • Service Time: includes both incarceration and CSP supervision. • [Initial term of incarceration] + [aggregate CSP supervision time] + [aggregate CSP revocation time] = service time.

9. State v. Picklesimer, 388 S.C. 264,695 S.E.2d 845 (2010) • Two ways to get through it: (1) successfully complete CSP (2 year max), or (2) do service time equal to the original sentence. • Prospective only, applying to Mr. Picklesimer and “any defendant still under PPP’s jurisdiction as of the issuance of the opinion.” Does not apply to inmates.

10. Confidentiality • Section 24-21-290 governs the confidentiality of Department files • All information and data is privileged • Not admissible as evidence other than in the court presiding over a charged violation • Court or PPP Director may order the release of information

11. Confidentiality, cont. • The Department’s files are not discoverable through Rule 5 or Brady. • State v. Hill, 630 S.E.2d 274 (Sup. Ct. 2006) • Privileged information cannot become admissible just because a judge orders it. • State v. Hook, 356 S.C. 421 (2003) • An agent’s observations are not privileged and therefore admissible. • Hutto v. State, 376 S.C. 77 (2007)

12. Supervised Reentry S.C. Code §24-21-32 • Applies to offenses occurring on or after January 1, 2011. Offenders who are sentenced to incarceration for two years or longer, but not for a “no-parole offense” (§24-13-100), are released 180 days prior to their max-out date under the Department’s Supervised Reentry Program (SRP). • This supervision period can run no longer than the originally calculated max-out date. If the sentence also includes probation, the SRP is reduced by the term of probation. • Violations of the conditions of the SRP are overseen by a Department Administrative Hearing Officer.

13. Questions? CONTACT INFORMATION Matthew.Buchanan@ppp.sc.gov (803) 734-9012