State v. Benjamin ( 2003 )

Justice WALLER,

dissenting.

I respectfully dissent. In my view, the Legislature did not intend that individuals, such as Benjamin, who commit several crimes during a single, continuous crime spree be subjected to recidivist sentencing.³

A recidivist is “a habitual criminal. A criminal repeater. An incorrigible criminal. One who makes a trade of crime.” Black’s Law Dictionary, 1269 (6th Ed.1990). Recidivist legislation attempts to encourage offenders to stay out of trouble and punishes those who refuse to be deterred even after a conviction. Commonwealth v. Eyster, 401 Pa.Super. 477, 585 A.2d 1027, 1031 (1991). Recidivists are persons who continue to commit criminal, antisocial behavior after incarceration for an earlier offense. Recidivist statutes aim at punishing those who have shown they are incorrigible offenders. Shannon Thorne, One Strike and You’re Out: Double Counting and Dual Use Undermines the Purpose of California’s Three-Strikes Law, 34 U.S.F.L.Rev. 99 (1999). The purpose of requiring separate offenses is to ensure that those offenders being sentenced under the harsh provisions of a recidivist sentencing statute have not been classified as habitual offenders because of multiple convictions arising from a single criminal enterprise; it provides the state with some certainty that the offender has participated in multiple criminal trials and, despite these opportunities to understand the gravity of his behavior and abide by the law, has continued to engage in criminal conduct. Daniel Rogers, People v. Furman and Three Strikes: Have the Traditional Goals of Recidivist Sentencing Been Sacrificed at The Altar of Public Passion?, 20 Thomas Jefferson L.Rev. 139,156 (Spring 1998).

In my view, the recidivist statute is aimed at career criminals,- those who have been previously sentenced and then commit another crime, not at persons like Benjamin whose recidivist status is premised solely upon acts occurring within a four-hour period.

Contrary to the majority’s contention, section 17-25-45 cannot, in my opinion, be read in isolation, but must be read in conjunction with section 17-25-50.

Section 17-25-50 provides:

In determining the number of offenses for the purpose of imposition of sentence, the court shall treat as one offense any number of offenses which have been committed at times so closely connected in point of time that they may be considered as one offense, notwithstanding under the law they constitute separate and distinct offenses. (Emphasis supplied).

Section 17-25-45(A) provides, in part, “[n]otwithstanding any other provision of law ... upon a conviction for a most serious offense ..., a person must be sentenced to a term of imprisonment for life "without the possibility of parole if that person has one or more prior convictions for ... (certain specified offenses).”

This Court has recognized that the predecessor to section 17-25-45 (17-25-40) and section 17-25-50 must be construed together. See State v. Stewart, 275 S.C. 447, 452, 272 S.E.2d 628, 631, n. 2 (1980) (recognizing that section 17-25-50 must be read in conjunction with section 17-25-40, the predecessor to section 17-25-45). Accord State v. Burdette, 335 S.C. 34, 515 S.E.2d 525 (1999)(recognizing section 17-25-40 is the predecessor to section 17-25-45). See also State v. Muldrow, 259 S.C. 414, 192 S.E.2d 211 (1972) (statute directing trial court to treat as one offense any number of offenses committed at times so closely connected in point of time that they may be considered as one offense is applicable only for purpose of sentencing under recidivist statute).

The majority points to the “notwithstanding any other provision of law” language of section 17-25-45(A), as an indication of legislative intent that it is no longer appropriate to construe sections 17-25-50 and 17-25-45 together. I disagree. In State v. Woody, 345 S.C. 34, 545 S.E.2d 521 (2001), the Court of Appeals held sections 17-25-45(F) and 17-25-50 could be reconciled such that both apply under the recidivist statute. The Woody court found “nothing to suggest section 17-25-45(F) somehow abrogates section 17-25-50.” 345 S.C. at 37, 545 S.E.2d at 522. I agree.⁴

It is a well-accepted principle of statutory construction that statutes which are part of the same legislative scheme should be construed together. Stardancer Casino, Inc. v. Stewart, 347 S.C. 377, 556 S.E.2d 357 (2001). Statutes must be read as a whole and sections that are part of the same general statutory scheme must be construed together and each given effect, if reasonable. Higgins v. State, 307 S.C. 446, 449, 415 S.E.2d 799, 801 (1992). Furthermore, the court should not consider the particular clause being construed in isolation, but should read it in conjunction with the purpose of the whole statute and the policy of the law. South Carolina Coastal Council v. South Carolina State Ethics Comm’n, 306 S.C. 41, 44, 410 S.E.2d 245, 247 (1991). However plain the ordinary meaning of the words used in a statute may be, the courts will reject that meaning when to accept it would lead to a result so plainly absurd that it could not possibly have been intended by the legislature or would defeat the plain legislative intention. Ray Bell Constr. Co. v. School Dist. of Greenville County, 331 S.C. 19, 501 S.E.2d 725 (1998).

As the Court did in Stewart and Muldrow, it is our duty to construe the statutes as a whole, and in Benjamin’s favor. Doing so here, it is patent that Benjamin’s single course of conduct should be treated as one offense. I would hold that Benjamin’s four-hour crime-spree was simply not the type of recidivism the Legislature had in mind when it enacted section 17-25-45. State v. Baker, 310 S.C. 510, 512, 427 S.E.2d 670, 671-72 (1993)(statute as a whole, must receive a practical, reasonable, and fair interpretation consonant with the purpose, design, and policy of the lawmakers).

Moreover, to read section 17-25-45 in isolation, as the majority does here, permits the solicitor unfettered discretion to treat similarly situated defendants differently, based solely upon whether the solicitor elects to try the charges together, or separately, such that there is a “prior conviction.” For example, if two defendants commit multiple offenses at one time, such as armed robbery, burglary, kidnapping, and murder, then whether each defendant is subject to a LWOP sentence depends entirely upon whether the solicitor elects to try the offenses separately, in which case there is a “prior conviction,” or jointly, in which case there is not. Further, under this factual situation, one defendant may be subjected to a LWOP sentence while another, equally culpable defendant is not. Not only could such a scenario give rise to equal protection violations, but, in my opinion, the Legislature clearly could not have intended such a result.⁵

I would hold that Benjamin is not eligible for an LWOP sentence for the robbery of Dodge’s store; I would reverse the Court of Appeals’ opinion.

MOORE, A.C.J., concurs.

3 . The majority does not dispute that all of Benjamin’s convictions arose from a single crime spree.

4 . The majority overrules Woody; I would affirm Woody.

5 . Further evidence that the Legislature could not have intended such a result is found in S.C.Code Ann. § 24-21-640 (Supp.2001), governing circumstances warranting parole, which provides, in part, relative to granting parole to persons serving a second or subsequent conviction of a violent crime, "[p]rovided that where more than one included offense "shall be committed within a one-day period or pursuant to one continuous course of conduct, such multiple offenses must be treated for purposes of this section as one offense.” In my view, it would be incongruous to require the parole board to treat offenses committed within a 24 hour period as one offense for purposes of determining parole, while simultaneously holding that such offenses constitute multiple offenses for purposes of a life without parole sentence under section 17-25-45.