THE STATE OF SOUTH CAROLINA

In The Supreme Court

Timothy James Pittman, Respondent,

v.

State of South Carolina, Petitioner.

ON WRIT OF CERTIORARI

Appeal From York County

Frank Eppes, Trial Judge

John C. Hayes, III, Post-Conviction Judge

Opinion No. 25025

Submitted October 20, 1999 - Filed December 6, 1999

AFFIRMED

Attorney General Charles M. Condon, Chief Deputy

Attorney General John W. McIntosh, Assistant Deputy

Attorney General Teresa A. Knox, and Assistant

Attorney General J. Benjamin Aplin, all of Columbia, for

petitioner.

Assistant Appellate Defender Melody J. Brown, of South

Carolina Office of Appellate Defense, of Columbia, for

respondent.

TOAL, A.J.: The State appeals the post-conviction relief ("PCR")

court's order granting Timothy Pittman ("Pittman") a new trial. We affirm.

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Pittman was indicted for assault and battery with intent to kill ("ABIK"),

possession of a gun during the commission of a violent crime, armed robbery, and

criminal conspiracy. Pittman pled guilty as charged to all indicted offenses. The trial

court sentenced Pittman to confinement for a cumulative period of twenty years.

Pittman then filed a PCR application. He alleged that an involuntary guilty plea and

ineffective assistance of counsel rendered his custody unlawful.

Entering a guilty plea results in a waiver of several constitutional rights,

therefore the Due Process Clause requires that guilty pleas are entered into

voluntarily, knowingly, and intelligently by defendants. Boykin v. Alabama, 395

U.S. 242, 89 S. Ct. 1709 (1969). The United States Supreme Court has held that

before a court can accept a guilty plea, a defendant must be advised of the

constitutional rights he or she is waiving. Id. Specifically, a defendant must be

aware of the privilege against self incrimination, the right to a jury trial, and the

right to confront one's accusers. This Court considered the requirements of a

voluntary and knowing guilty plea in, State v. Hazel, 275 S.C. 392, 271 S.E.2d 602

(1980) and Dover v. State, 304 S.C. 433, 405 S.E.2d 391 (1991). In addition to the

requirements of Boykin, a defendant entering a guilty plea must be aware of the

nature and crucial elements of the offense, the maximum and any mandatory

minimum penalty, and the nature of the constitutional rights being waived. Id.

When determining issues relating to guilty pleas, the court will consider the

entire record, including the transcript of the guilty plea, and the evidence presented

at the PCR hearing. Harres v. Leeke, 282 S.C. 131, 318 S.E.2d 360 (1984).

However, in this case, the transcript of Pittman's guilty plea on its face provides

enough evidence to hold Pittman's plea was not voluntary or knowing. A

defendant's knowing and voluntary waiver of the constitutional rights which

accompany a guilty plea "may be accomplished by colloquy between the Court and

the defendant, between the Court and defendant's counsel, or both." State v. Ray,

310 S.C. 431, 437, 427 S.E.2d 171, 174 (1993).

Although the trial court is not required to direct defendants attention to each

right and obtain a separate waiver, the record should indicate the defendant was

fully aware of the consequences of his guilty plea. State v. Lambert, 266 S.C. 574,

225 S.E.2d 340 (1976). In Pittman's case, the trial judge did not affirmatively ask

him for an admission of guilt. The transcript also indicates the trial judge did not

advise Pittman of the crucial elements of the charged offenses. Furthermore, the

court's failure to inform Pittman that the armed robbery charge carried a

mandatory minimum sentence of ten years, seven without the possibility of parole,

renders the plea involuntary. See 22 C.J.S. Criminal Law § 404 (1989) ("prior to

accepting a plea of guilty . . . the court is required to advise accused of the range of

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punishment attached to the offense charged such as . . . the minimum sentence.").

This case is similar to Hazel, supra, where we found a defendant's plea involuntary

since she was never informed of the mandatory minimum sentence required by her

guilty plea. See also Brown v. State, 306 S.C. 381, 412 S.E.2d 399 (1991) (holding

a judge's misinformation to defendant about required time in jail before parole

eligibility invalidated voluntary nature of guilty plea). In the current case, the judge

informed Pittman of the maximum sentences which could be imposed, but the

mandatory minimum was only mentioned in passing by the prosecutor near the end

of the hearing.1

In addition, Pittman did not fully understand the nature of the constitutional

rights being waived. Pittman's testimony at the PCR hearing was uncontradicted

in that he met with his attorney only twice for approximately twenty minutes each.

See Dover, 304 S.C. at 435, 405 S.E.2d at 392 ("It was never established the

[defendant] understood the severity of the crimes or the sentences they carried. . .

the record reveals that [defendant] only spoke with his court appointed attorney

three times for a total amount of less than 30 minutes."). Pittman's attorney had

little recollection of the exact nature of matters discussed during meetings with the

Defendant. Although Pittman signed a "checklist for guilty plea," the date on this

document is one month prior to the court appearance and entrance of the guilty

plea. The list does not include the crimes Pittman was charged, the elements of the

charged crimes, or a statement about mandatory minimum penalties. Furthermore,

these defects were not cured by information provided at the guilt plea proceeding.

See Moorehead v. State, 329 S.C. 329, 496 S.E.2d 415 (1998); Wolfe v. State, 326

S.C. 158, 485 S.E.2d 367 (1997).

The transcript of the guilty plea in this case speaks for itself. The trial judge

did not ask Pittman if he was guilty of the charged offenses. The court failed to

inform Pittman of the mandatory minimum sentence carried by the armed robbery

charge. In addition, the trial court's lack of questions to ensure Pittman's

understanding of the consequences of his plea, coupled with the trial court and

attorney's failure to explain the elements charged, further indicates Pittman's plea

was not voluntary, intelligent, and knowing.

surrounding the incident, "I would like to remind the court that as to the armed

robbery, your honor, there is a minimum of ten years, seven of which must be

served without parole."

p.17

Conclusion

The PCR court's order granting Pittman a new trial is affirmed.

Finney, C.J., Moore, Waller and Burnett, JJ., concur.

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