South Carolina Lawyers Weekly
Richardson v. State (Lawyers Weekly No. 011-030-14, 6 pp.) (John C. Few, C.J.) Appealed from Kershaw County PCR Court (L. Casey Manning, Trial Ct. J.) (G. Thomas Cooper, Jr., PCR J.) S.C. App.
Holding: In this appeal from an order granting post-conviction relief (PCR) to Sandra Richardson, we hold a trial court has no power to suspend a sentence imposed on a person convicted of homicide by child abuse under § 16-3-85(A)(1) of the South Carolina Code (2003). We reverse.
We find the PCR court’s reliance on State v. Thomas, 372 S.C. 466, 642 S.E.2d 724 (2007), was misplaced because homicide by child abuse under § 16-3-85(A)(1) carries a maximum penalty of life imprisonment.
In this case, Richardson pled guilty to homicide by child abuse under § 16-3-85(A)(1). The sentence for a person convicted pursuant to that subsection is found in § (C)(1), which provides a person “may be imprisoned for life but not less than a term of twenty years.” Although the homicide by child abuse statute does not specifically prohibit suspension of a sentence, it falls within the exception provided in § 24-21-410 because the crime is punishable by life imprisonment. Thus, under State v. Jacobs, 393 S.C. 584, 713 S.E.2d 621 (2011), the PCR court’s finding that Richardson was entitled to PCR because she “possessed a potentially meritorious issue for appeal” was controlled by an error of law.
Under Moore v. Patterson, 203 S.C. 90, 26 S.E.2d 319 (1943), a trial court has no power to suspend a sentence unless that power has been granted to it by the General Assembly. Richardson points to no such grant of power except § 24-21-410, which by its own terms does not apply to “any offense . . . punishable by death or life imprisonment.” Under Jacobs, Moore, and the plain language of § 24-21-410, the trial court in this case had no power to suspend Richardson’s sentence. Therefore, Richardson’s appellate counsel correctly advised her that no meritorious issues existed for appeal, as there was no possibility this court would have ordered a new sentencing hearing.
The PCR court erred in granting Richardson a new sentencing hearing, and the order is reversed.
