Dover v. State ( 1991 )

Gregory, Chief Justice, dissenting:

I respectfully dissent. While I agree with the majority’s rejection of the PCR judge’s reason for granting relief, I do not join in its affirmance on the ground discussed.

The record before us demonstrates Dover’s guilty plea was valid under Boykin. The extent of inquiries made by the trial judge at the time of the plea is not conclusive. Harres v. Leeke, 282 S.C. 131, 318 S.E. (2d) 360 (1984). To determine whether a guilty plea was taken in accordance with constitutional standards, this Court will consider the entire record including facts presented at the PCR hearing. Id,.; Vickery v. State, 258 S.C. 33, 186 S.E. (2d) 827 (1972). It is well-settled that a PCR judge’s findings must be upheld if supported by any competent evidence. Dandy v. State, — S.C. —, 391 S.E. (2d) 581 (1990); Cherry v. State, 300 S.C. 115, 386 S.E. (2d) 624 (1989).

At the PCR hearing, Dover’s trial counsel testified he discussed each charge with Dover and told him the sentence for each charge. At the plea hearing, Dover answered the trial judge’s questions affirmatively indicating he understood the nature of each charge and the possible punishment. This evidence supports the PCR judge’s finding that Dover understood the charges against him. I would affirm this finding and deny Dover relief on this ground.

Further, the record indicates Dover pleaded guilty and was sentenced for twenty-four counts of second degree burglary. The twenty-four indictments for burglary, however, allege only third degree burglary since no circumstances of aggravation are stated. Compare S.C. Code Ann. § 16-11-312(B) (Supp. 1989) (second degree) and § 16-11-313 (Supp. 1989) (third degree). The trial court was therefore without subject matter jurisdiction to accept Dover’s plea and sentence him for second degree burglary. State v. Munn, 292 S.C. 497, 357 S.E. (2d) 461 (1987); In re: Corey B., 291 S.C. 108, 352 S.E. (2d) 470 (1987); see also State v. Riddle, — S.C. —, 391 S.E. (2d) 253 (1990). I would vacate Dover’s concurrent fifteen-year sentences on the twenty-four counts of second degree burglary. Dover’s remaining aggregate sentence would therefore be ten years.