State v. Quinn ( 2020 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Appellant,
v.
Richard M. Quinn, Jr., Respondent.
Appellate Case No. 2018-000494
Appeal From Richland County
Carmen T. Mullen, Circuit Court Judge
Opinion No. 27966
Heard October 15, 2019 – Filed May 6, 2020
DISMISSED IN PART, AFFIRMED IN PART
First Circuit Solicitor David Michael Pascoe, Jr., and
Assistant Solicitor William Baker Allen, Jr., both of
Orangeburg, for Appellant.
Matthew Terry Richardson, of Wyche Law Firm, of
Columbia, for Respondent.
JUSTICE HEARN: This appeal arises from special prosecutor David Pascoe's
State House public corruption probe involving former South Carolina House
Representative Rick Quinn, Jr., who pleaded guilty to a charge of statutory
misconduct in office in February 2018. Following the plea hearing, the State grew
concerned about the plea's validity because Quinn only admitted to a limited set of
facts supporting the indictment. Believing the plea lacked a sufficient basis, the
State moved to vacate the guilty plea, reconsider the sentence, and for the court's
recusal. The State appeals the order denying those motions. We dismiss the State's
appeal of the guilty plea and affirm the trial court's order as to the sentence and
recusal issues.
FACTUAL/PROCEDURAL BACKGROUND
Respondent Rick Quinn, Jr. is a former member of the South Carolina House
of Representatives, representing constituents in Richland and Lexington counties
from 1989-2004 and 2010-2017 and serving as House Majority Leader from 1999-
2004. He owned and operated a mail business called Mail Marketing Strategies
(MMS) in Columbia, while his father owned and operated a political consulting firm,
Richard Quinn & Associates (RQ&A).
In 2014, Attorney General Alan Wilson designated First Circuit Solicitor
David Pascoe as special prosecutor to conduct a State grand jury investigation into
alleged public corruption committed by current and former members of the South
Carolina General Assembly.1 The present case arose from a prior State grand jury
investigation of former House Speaker Bobby Harrell, which resulted in six counts
of misusing campaign funds, to which he pleaded guilty. During the course of the
investigation into Speaker Harrell, SLED uncovered potentially criminal conduct by
Representative Jimmy Merrill and Representative Rick Quinn, and a second grand
jury investigation was initiated to investigate the conduct of these two individuals.
The investigation focused on Quinn's practice of using his office as House Majority
Leader and leader of the House Republican Caucus to direct mailing and political
services to his family's businesses.
As a result of Pascoe's investigation, Quinn was charged in May 2017 with
statutory misconduct in office in violation of section 8-1-80 of the South Carolina
Code of Laws, and common law misconduct in office. In October 2017, he was also
charged with criminal conspiracy in violation of section 16-17-410. Quinn's father's
business, First Impressions, Inc. d/b/a RQ&A, was also indicted for failing to register
as a lobbyist under section 2-17-20. Thereafter, several things occurred which
caused the State concern. In November 2017, the court severed Respondent's case
1
We note the public corruption probe in these matters has extended for more than
five years, and we trust that it is drawing to a close.
from his father's, despite the State's motion to consolidate the two trials, which the
defense opposed on several grounds.2 In addition, the State believed a conference
call occurred on December 12, 2017, between the court, the State, and counsel for
Respondent and his father in which the court inquired as to whether the parties
remembered granting permission to have ex parte communication on a prior
occasion while in Beaufort. The court disputed that any ex parte communication
took place other than when the court and the parties spoke in chambers before the
guilty plea hearing.
At the plea hearing on December 13, 2017, Respondent entered a guilty plea
pursuant to an agreement with the State that resolved charges against both him and
his father. Specifically, the agreement provided that Respondent would plead guilty
to statutory misconduct in office, while the two remaining indictments against him
would be dismissed, and that First Impressions would plead guilty and pay
restitution in the amount of $3,000.00. Also as part of the plea agreement,
Respondent was permitted to enter a "limited allocution"3 and the State would make
2
Respondent's father opposed consolidation due to: a scheduling conflict; the
possibility that the two could not be called as a witness in the other's trial; the
evidence regarding Respondent would have a prejudicial effect on his father's
defense; his father's age and health; and the possibility of confusion of the issues.
Respondent opposed consolidation so that his trial could take place before the March
15th candidate filing deadline and also noted that his father's counsel had not had
sufficient time to prepare their case.
3
We agree with the trial court's characterization of Respondent's allocution as a
limited admission of facts, rather than a traditional allocution statement. An
"allocution statement" is when, after pleading guilty, a defendant is offered a formal
opportunity to address the court to express remorse and explain personal
circumstances that might be considered in sentencing. Allocution statements assist
the court in determining whether there is a sufficient factual basis to support the
charge and the plea and whether the defendant's plea was "knowingly, voluntarily,
and intelligently made." A defendant is not required to exercise his right to submit
an allocution statement, and lawyers are permitted to submit a statement on the
defendant's behalf. What is an Allocution Statement? AM. BAR ASS'N (Nov. 20,
2018),
https://www.americanbar.org/groups/public_education/publications/teaching-legal-
docs/what-is-an-allocution-statement-/.
a much broader factual presentation before sentencing. In his limited allocution,
Respondent agreed to the following:
Rick Quinn agrees that in 2015, while a member of the House of
Representatives, he failed to report to House Ethics Committee the
name of USC, which he knew was a lobbyist principal and which in the
previous calendar year leased office space for less than $30,000 total
from Capitol Investments II, LLC, a business with which Rick was
associated as a compensated agent by receiving a benefit from Capitol
Investments II by being relieved from the payments on the mortgage
note on the property as a guarantor and also by helping negotiate the
mortgage note.
Although the State was provided with Respondent's limited allocution in writing
prior to the plea hearing, it lacked information regarding the basis of his statement—
that he had received an economic benefit from USC which he failed to report as a
lobbyist's principal. During the hearing, the State presented a PowerPoint detailing
the Quinn family businesses and alleging that Quinn's misconduct in office consisted
of several acts occurring between April 1, 2010 and April 15, 2017, for which the
State charged him with one count of a "continuing offense." Specifically, the State
claimed that through his family businesses, Respondent knowingly received an
improper economic benefit by virtue of his positions as House Majority Leader and
leader of the House Republican Caucus. In its presentation, the State explained
Respondent failed to disclose over $4 million received from lobbyist's principals,
such as SCANA, AT&T, Palmetto Health, and USC, and voted as sponsor on
legislation concerning those companies. The State showed the court documents
indicating Respondent held himself out as an RQ&A employee despite his denial
that he was associated with his father's business. The State also claimed Respondent
funneled money from the House Republican Caucus's operating account to his
family's businesses while he was House Majority Leader.
Respondent entered a guilty plea pursuant to the plea agreement, and the court
accepted the plea, finding a substantial factual basis existed and that Respondent's
decision to plead guilty was reasonably and intelligently given. There was no
objection to the plea by either party during the proceeding. At the end of the hearing,
due to the lateness of the hour, the court decided to defer sentencing for two months.
While awaiting that hearing, both parties filed sentencing memoranda.
Respondent asked the court for probation rather than a prison sentence, arguing his
conduct did not warrant imprisonment when compared to the misconduct of other
public officials. In contrast, the State, after reviewing the plea hearing transcript,
raised issues for the first time regarding the plea's validity and requested the plea be
cured prior to sentencing or that it be vacated entirely. The State's concern stemmed
from its inability to locate any payments made by the University of South Carolina
to Capitol Investments II, LLC, in 2015; accordingly, it believed that Respondent's
limited allocution did not satisfy the elements of statutory misconduct in office under
section 8-1-80, but rather constituted only an unintentional failure to file under
section 8-13-1130. Therefore, the State specifically requested the court, prior to
sentencing, to clarify whether Respondent intentionally failed to report to ensure the
elements of statutory misconduct in office were satisfied and the plea was sufficient.
The State also asked the court to consider the State's factual presentation in
determining Respondent's sentence and to sentence Respondent to the maximum
one-year imprisonment.4
On February 12, 2018, the trial court held a sentencing hearing for Respondent
and First Impressions, Inc. In response to the State's request, the court conducted a
second colloquy with Respondent in which it confirmed he was guilty of statutory
misconduct in office for intentionally failing to report income from USC, a lobbyist's
principal. In announcing the sentence, the court seemed to apply the presumption of
innocence with regard to any other misconduct the State presented and to which
Respondent did not admit in his limited allocution. The court then sentenced
Respondent to the maximum possible punishment for statutory misconduct in
office—one-year imprisonment suspended to two years' probation and a $1,000.00
fine—as well as an additional 500 hours of public service. Both before and after
sentencing, the State attempted to object to the plea, but the court indicated appeal
was the State's only avenue of relief. At the end of the hearing, the State requested
the court to recuse itself from the proceedings, which the court refused to do.
Following the sentencing hearing, the court reporter published a comment on The
State newspaper's website through Facebook, stating "[w]hen a solicitor passes up a
4
The State further elaborated its concerns regarding the plea in a letter to the court
dated January 25, 2018, and requested the court cure any defects in the plea at the
sentencing hearing. In the letter, the State explained that additional documents
Respondent provided assuaged its concerns regarding payments by USC to Capitol
Investments II, LLC.
golden opportunity to go to trial, but won't take responsibility for agreeing to a plea
= classic cop out. Don't blame it on the judge."5
Thereafter, the State filed a motion to reconsider the sentence, or in the
alternative, vacate the plea, and again requested the court to consider its factual
presentation in sentencing Respondent. The court denied the motion, finding a
substantial basis existed to accept the plea, reaffirming its consideration of the State's
facts in sentencing, and refusing to recuse itself. The State appealed the court's
denial of its motion to reconsider to the court of appeals. Respondent moved to
dismiss the State's appeal, which the court of appeals denied, permitting the parties
to fully brief the appealability issue along with the merits. Respondent requested
this Court to certify the case for immediate review pursuant to Rule 204(b), SCACR,
which this Court granted.
Following oral argument in this case, this Court requested additional briefing
from the State, Respondent, and the Attorney General regarding the execution of
certain corporate integrity agreements stemming from the public corruption
probe. While we originally scheduled oral argument on this issue, it was cancelled
due to the interruption in court operations caused by Covid-19. We will now address
this issue as well as the continued authority of Solicitor Pascoe during oral
arguments in State v. Harrison, Appellate Case No. 2018-002128.
ISSUES PRESENTED
1. Can the State appeal a guilty plea, which was entered and agreed to by the
parties based on a plea agreement, and that the trial court accepted without
objection?
2. Did the trial court err in sentencing Respondent based solely on his limited
allocution and cloaking Respondent with the presumption of innocence
regarding other misconduct described in the State's factual presentation, when
Respondent pleaded guilty to an indictment for a continuing offense?
5
Glenn Smith, Court reporter removed from Statehouse misconduct case after
criticizing prosecutor online, POST & COURIER (Feb. 27, 2018),
http://www.postandcourier.com/news/court-reporter-removed-from-statehouse-
misconduct-case-after-criticizing-prosecutor/article_a63c7afe-1bda-11e8-8874-
07ffa47106ae.html.
3. Did the trial judge's conduct throughout Respondent's guilty plea and
sentencing, including her solicitation of ex parte communications, provide
sufficient evidence of judicial bias to merit her recusal on appeal?
STANDARD OF REVIEW
In criminal cases, this Court reviews only errors of law. State v. Anderson,
415 S.C. 441, 446, 783 S.E.2d 51, 54 (2016). Thus, the trial court's factual findings
are binding on the Court unless unsupported by the evidence, clearly erroneous, or
controlled by an error of law. State v. Winkler, 388 S.C. 574, 582, 698 S.E.2d 596,
600 (2010). On appeal, the reviewing court does not reevaluate the facts based on
its own view of the preponderance of the evidence but simply determines whether
the trial judge's ruling is supported by any evidence. State v. Parker, 391 S.C. 606,
611-12, 707 S.E.2d 799, 801 (2011). Absent evidence to the contrary, this Court
presumes the regularity and legality of criminal proceedings. Weathers v. State, 319
S.C. 59, 62, 459 S.E.2d 838, 839 (1995).
LAW/ANALYSIS
I. GUILTY PLEA
We begin by addressing the threshold question of whether the State may
appeal a guilty plea of its own design and agreement, which was accepted by the
trial court. Respondent contends the Double Jeopardy Clauses of the United States
and South Carolina Constitutions prohibit the State from attempting to invalidate the
guilty plea on appeal. Because jeopardy has attached, Respondent requests the Court
dismiss this appeal. In addition, Respondent argues the State is not an aggrieved
party pursuant to Rule 201(b), SCACR, because it prevailed by securing a guilty
verdict through plea agreement. Respondent claims that the State cannot appeal
when it loses at trial and the jury acquits, and that it likewise should not be able to
appeal from a guilty plea. Even if the Court disagrees, Respondent asserts the issue
is not preserved for appellate review because the State did not make a
contemporaneous objection to the plea at the hearing.
We believe, under the specific facts of this case, the State cannot appeal the
guilty plea accepted by the trial court. The State is not an "aggrieved party"
permitted to appeal under Rule 201(b), SCACR, because it successfully secured a
guilty verdict against Respondent through plea agreement. State v. Cantrell, 250
S.C. 376, 379, 158 S.E.2d 189, 191 (1967) (noting a guilty plea has the same effect
in law as a verdict of guilty and authorizes the imposition of the punishment
prescribed by law); State v. Cox, 328 S.C. 371, 373, 492 S.E.2d 399, 400 (Ct. App.
1997) ("[A]n aggrieved party is one who is injured in a legal sense or has suffered
an injury to person or property."). Because we hold the State may not appeal under
the context presented here, we need not address whether this issue is unpreserved
because the State made no contemporaneous objection at the plea hearing, nor
whether double jeopardy is implicated. Futch v. McAllister Towing of Georgetown,
Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (noting an appellate court need
not address remaining issues when disposition of a prior issue is dispositive). For
these reasons, we dismiss the State's appeal of the guilty plea.6
II. SENTENCE
We now turn to whether the trial court abused its discretion in sentencing
Respondent. The State contends the trial court erred in failing to consider its
presentation of facts in sentencing Respondent and instead determining that
Respondent was entitled to a presumption of innocence as to those facts. First, the
State argues the terms of the plea agreement allowing Respondent to admit guilt to
a limited set of facts did not establish a limited indictment. By considering only
Respondent's limited allocution in sentencing, the court sentenced Respondent to the
offense as admitted rather than as indicted. Second, the State claims the court
committed an error of law by cloaking Respondent with a presumption of innocence
as to those facts Respondent did not admit. In its ruling from the bench, the court
seemed to indicate it was constitutionally prohibited from considering the State's
allegations because they had not been proven beyond a reasonable doubt. The State
believes this constituted reversible legal error. We disagree.
Rick Quinn, Jr. was duly convicted of statutory misconduct in office under
section 8-1-80, pleading guilty to the indicted offense. Boykin v. Alabama, 395 U.S.
238, 242 (1969) ("[A] plea of guilty is more than an admission of conduct; it is a
conviction."). See also Woodard v. State, 171 So.2d. 462, 469 (Ala. Ct. App. 1965)
("A plea of guilty is more than a voluntary confession made in open court. It also
6
The State also argues the trial court erred in finding a substantial factual basis
existed to accept Respondent's guilty plea to statutory misconduct in office when
Respondent's limited allocution described only a single ethics violation. Because
we find, under these facts, the State cannot appeal the guilty plea, we need not
address this issue. Futch, 335 S.C. at 613, 518 S.E.2d at 598.
serves as a stipulation that no proof by the prosecution need by [sic] advanced,
except as expressly provided by statute . . . . It supplies both evidence and verdict,
ending controversy.").
Generally, a sentencing judge has great discretion in the kind of evidence she
may use to assist her in determining the punishment to be imposed. Cantrell, 250
S.C. at 379, 158 S.E.2d at 191. Indeed, she is obligated to consider information
material to punishment and may "exercise a wide discretion in the sources and types
of evidence used to assist [her] in determining the kind and extent of punishment to
be imposed within limits fixed by law." Id. State v. Sullivan, 267 S.C. 610, 618, 230
S.E.2d 621, 625 (1976). See also Wasman v. United States, 468 U.S. 559 (1984 ("The
sentencing court . . . must be permitted to consider any and all information that
reasonably might bear on the proper sentence for a particular defendant . . . .").
Moreover, while the rules of evidence do not apply in sentencing proceedings, the
Constitution "require[s] the evidence to be relevant, reliable and trustworthy." State
v. Gulledge, 326 S.C. 220, 229, 487 S.E.2d. 590, 594 (1997) ("A court may consider
any relevant information without regard to its admissibility under the rules of
evidence applicable at trial, provided the information has sufficient indicia of
reliability to support its probable accuracy.").
Here, the court considered the information provided by the State and
Respondent during the December 13, 2017 hearing and sentenced Respondent
according to the evidence the court found reliable and relevant.7 The court acted
within its discretion in its consideration of the entire record and its determination of
Respondent's sentence. Moreover, the court sentenced Respondent to the maximum
punishment allowed by law—one-year imprisonment and a $1,000.00 fine. It was
also within the court's power to suspend Respondent's sentence to two years'
probation. S.C. CODE ANN. § 24-21-410 (2007); State v. Thomas, 372 S.C. 466, 468,
7
Her written order stated: "The Court considered the information provided by the
State and the Defendants during the December 13, 2017 hearing and sentenced the
Defendants according to the evidence the Court found reliable and relevant." Thus,
regardless of whether the court appeared to apply a presumption of innocence in its
ruling from the bench, it did not do so in the order—which is controlling. Cole Vision
Corp. v. Hobbs, 394 S.C. 144, 149, 714 S.E.2d 537, 540 (2011) ("It is well settled
that when there is a discrepancy between an oral ruling of the court and its written
order, the written order controls.").
642 S.E.2d 724, 745 (2007) (holding that unless the criminal statute specifically
provides that no part of the sentence can be suspended, the power of the sentencing
judge to suspend sentence is unlimited). Therefore, the trial court did not abuse its
discretion in sentencing Respondent to the maximum permitted by law.8
8
We disagree with the concurrence that the trial court was required, as a matter of
law, to refuse to sentence Respondent based on all of the evidence presented at the
hearing. The State's arguments claiming the trial court committed an error of law
stem from the court's oral ruling from the bench, rather than its written order, and
seem to have misguided the concurrence's analysis. Instead, viewing the trial court's
written order as controlling—as we must do—it is apparent the court, in its
discretion, considered the information the State presented at the hearing. See Hobbs,
394 S.C. at 149, 714 S.E.2d at 540. As to this finding, the concurrence appears to
agree the trial court properly exercised its discretion. It is also clear Respondent
pleaded guilty to and was duly convicted of one count of a "continuing offense" of
statutory misconduct in office, and the trial court properly considered the evidence
which served as the basis for the guilty plea in sentencing Respondent to the
maximum allowable punishment. Indeed, at the hearing, the court conducted the
plea colloquy as follows:
THE COURT: And Mr. Quinn, do you wish to plead guilty or not guilty
to this charge of misdemeanor failure to register – excuse me, I
apologize – misdemeanor statutory misconduct in office, sir?
MR. RICK QUINN, Jr.: Guilty.
THE COURT: All right. Sir, are you pleading guilty because you are in
fact guilty?
MR. RICK QUINN, Jr.: Yes, ma'am.
At oral argument, upon questioning by several of the justices, counsel confirmed
Respondent did in fact plead guilty to statutory misconduct in office. Accordingly,
the trial court correctly convicted and sentenced Respondent based on his confession
of guilt. See S.C. Code Ann. § 17-23-80 (2014) ("No person indicted for an offense
shall be convicted thereof unless by confession of guilt in open court, by admitting
the truth of the charge against him by his plea or demurrer, by the verdict of a jury
accepted and recorded by the court or as provided in Section 17-23-40." (emphasis
III. RECUSAL
Lastly, we consider whether the trial judge's conduct throughout Respondent's
guilty plea and sentencing provides sufficient evidence of judicial bias or prejudice
to merit her recusal. The State believes the totality of the trial judge's conduct
demonstrates bias such that she should be recused and removed from further
involvement in Respondent's case and any other case stemming from the State grand
jury investigation. Specifically, the State contends the court improperly severed the
trials of Respondent and his father, conducted ex parte communications without the
State's consent, failed to inform it of the substance of those communications, and
imposed a lighter sentence than requested after improperly applying a presumption
of innocence to the State's evidence. Further, the State believes that comments made
on Facebook by the court reporter provide evidence of the judge's partiality,
speculating the comments must have resulted from conversations in chambers. We
disagree.
When the moving party has failed to demonstrate some evidence of judicial
bias or prejudice, an appellate court will not reverse a judge’s decision not to recuse.
Davis v. Parkview Apartments, 409 S.C. 266, 284, 762 S.E.2d 535, 545 (2014).
Here, the State's claim for the court's recusal is specious and wholly without merit,
as it has failed to show any evidence of judicial bias or prejudice. Roche v. Young
Bros. of Florence, 332 S.C. 75, 84-85, 504 S.E.2d 311, 316 (1998) (noting a judge
should recuse himself when his impartiality "might reasonably be questioned").
There is absolutely no evidence in the record to support the State's claim that ex
parte communications took place between the court and Respondent's counsel
without its consent. Further, the State's claims involving the court reporter and the
court's alleged use of the presumption of innocence fail to prove the judge was
partial, biased, or prejudiced against the State in any way. Therefore, the court's
decision not to recuse is affirmed.
CONCLUSION
For the foregoing reasons, we conclude that under these facts, the State cannot
appeal the guilty plea, the trial court did not abuse its discretion in sentencing Rick
Quinn, Jr., and there is no evidence of judicial bias or prejudice requiring the court
added)). Moreover, we decline to address the issue of the State's corporate integrity
agreements, as it has no bearing on the resolution of this case, and we express no
opinion as to the propriety of these agreements at this time.
to recuse itself. Therefore, we DISMISS the State's appeal of the guilty plea and
AFFIRM the trial court's order as to the sentence and recusal issues.
BEATTY, C.J., KITTREDGE and JAMES, JJ., concur. FEW, J. concurring
in a separate opinion.
JUSTICE FEW: I agree with the majority to dismiss the State's appeal of
Quinn's guilty plea, affirm his sentence, and affirm the trial court's refusal to
recuse herself. I write separately primarily to address the actions of the State's
representative.
I first address a relatively minor point of disagreement with the majority. The
State accused Rick Quinn of extremely serious political corruption. Among
many charges, the State accused Quinn of selling his vote on important issues
before the House of Representatives in exchange for over $4 million in bribes
to Quinn's affiliated companies. In his guilty plea, however, Quinn admitted
only that he did not report on his ethics disclosure form that the University of
South Carolina (USC) paid one of Quinn's companies $30,000 in rent. The
State is not complaining that the trial court failed to consider all of the
information the State presented at the sentencing hearing, including the
allegations of accepting bribes. If that were the State's complaint, I would
eagerly join the majority in finding the trial court properly exercised its
discretion. The State contends, rather, the trial court committed an error of
law.9 The State contends, "Even though [Quinn's criminal] conduct spanned a
number of years and violated numerous statutory provisions, the State made a
prosecutive[10] decision that this conduct was committed for the singular
9
The State argues "the [trial] court held it could not consider those acts because
[Quinn] was innocent until proven guilty, which is clearly an error of law."
Appellant Br. 25. "This Court should hold"—the State continues—"[Quinn's] guilty
plea encompassed all conduct that forms the basis of the indictment, and that the
plea court committed an error of law." Id.; see also id. at 29 ("The [trial] court
committed an error of law . . . ."); id. at 32 ("By determining that [Quinn] was
'innocent until and unless he is proven guilty' . . . , the [trial] court committed a
reversible error of law.").
10
In this context, the State used "prosecutive" to mean "strategic." In other contexts,
"prosecutive" means whether or not to prosecute. See, e.g., Pascoe v. Wilson, 416
S.C. 628, 632, 788 S.E.2d 686, 688 (2016) ("McIntosh wrote a letter to the Chief of
the South Carolina Law Enforcement Division . . . asking he forward the SLED
report resulting from the investigation into the redacted legislators to Pascoe 'for a
prosecutive decision.'").
purpose of using [his] position as a member of the House of Representatives
for the financial benefit of himself and his family." Appellant Br. 26. That is
a valid point in relation to framing an indictment. However, the State's
contention—that because both accepting bribes and failing to report may be
labelled as misconduct in office they must be treated as one crime for purposes
of sentencing—is a ruse. The trial court was legally correct not to fall for it. I
would hold—as a matter of law—the trial court properly refused to sentence
Quinn for committing the crime of accepting bribes because the only crime
Quinn admitted committing was not reporting rental income.
Turning to my primary reason for writing separately, I believe the root of the
State's arguments on appeal—the trial court erred in accepting the plea, erred
in refusing to sentence Quinn as the State wished, and erred in refusing to
recuse herself when the State did not get its way—is that the trial court treated
the State unfairly. While I completely agree with the majority's rejection of
these arguments, the "unfairness" aspect—in my judgment—warrants further
discussion.
The State complains of unfair treatment in numerous respects. As an example,
it complains the trial court treated the State unfairly regarding a joint trial,
stating, "Proceeding without any motion or without any severance hearing, the
court scheduled only [Quinn's] trial for February 26, 2018, granting a non-
existent motion to sever without affording the State an opportunity to argue
against the severance." Appellant Br. 10. In a footnote to this text, the State
complains,
While the court indicated she would allow [the State] to make a
record opposing the severance, the court never actually stopped to
permit counsel a chance to respond. Indeed, the State contends
that the grounds offered by the court for severing the cases was
improper but did not have the chance to make the argument.
Id. at 10 n.2.
The State also complains it was treated unfairly because it did not have an
adequate opportunity to challenge the limited set of facts Quinn was willing to
admit. The State noted in its brief that the trial court "incredibly never allowed
the State an opportunity to place its objections or concerns on the record" and
"the State was not permitted to object to the validity of the guilty plea during
the sentencing hearing." Appellant Br. 7-8. Thus, the State complains, the trial
court "denied the State its due process right to be heard."11 Finally, the
prosecutor complained to the trial court it was unfairly prohibited from taking
Quinn to trial because of a lack of funding, stating, "I have not gotten a dime
of money from the State for this case."
To understand the significance of the "unfairness" argument to this appeal,
some history of this investigation is useful. As this Court explained in Pascoe
v. Wilson, 416 S.C. 628, 788 S.E.2d 686 (2016), the Attorney General in 2014
appointed David M. Pascoe Jr.—the elected Solicitor of the First Judicial
Circuit, comprising Calhoun, Dorchester, and Orangeburg Counties—as a
"designated prosecutor" to investigate Bobby Harrell, former Speaker of the
House of Representatives. 416 S.C. at 631, 788 S.E.2d at 688. As Pascoe
described the investigation in his brief in this case, "In the course of
investigating Mr. Harrell's conduct, SLED uncovered potentially criminal
conduct by . . . other state legislators," including Quinn. Appellant Br. 9.
These "other state legislators" are the "redacted legislators" this Court referred
to in Pascoe v. Wilson. See 416 S.C. at 631, 788 S.E.2d at 688 ("A SLED
report generated during the Harrell investigation contained the redacted names
of certain legislators (the 'redacted legislators'), who were allegedly implicated
in unethical and illegal conduct.").
Pascoe explained how the investigation developed,
11
I agree the State should be given an opportunity to be heard. However, the State
is not protected by the Due Process Clause. "The word 'person' in the context of the
Due Process Clause of the Fifth Amendment cannot, by any reasonable mode of
interpretation, be expanded to encompass the States of the Union, and to our
knowledge this has never been done by any court." South Carolina v. Katzenbach,
383 U.S. 301, 323-24, 86 S. Ct. 803, 816, 15 L. Ed. 2d 769, 784 (1966). If the Fifth
Amendment does not protect the State from the federal government, the Fourteenth
Amendment certainly does not protect one arm of the State (prosecutors) from
another arm (courts).
This investigation initially focused on [Quinn's] practice of using
his office as House Majority Leader and leader of the House
Republican Caucus to channel caucus mailing and political
services to a network of Quinn family businesses, thus using his
official position to gain an economic advantage. However, as the
investigation examined the Quinn businesses more closely, a
complex scheme of cash-for-influence political "consulting" was
revealed . . . . Investigation of the Quinns' businesses involved
analysis of voluminous bank records, emails, and witness
testimony, culminating in the indictment of [Quinn] and his father.
Appellant Br. 9.
Based on this investigation, Pascoe brought the criminal charges in this case.
He made a strategic decision to frame the indictment against Quinn as one
count instead of listing the separate criminal acts as individual counts. At the
December 13, 2017 sentencing hearing, Pascoe described the theory behind his
strategy. He began by generally describing how bad things are "up there in
Columbia." He then told the judge, "There's been no one more corrupt than
Rick Quinn in Columbia, South Carolina, and no entity more corrupt than
Richard Quinn & Associates."
The trial court pushed back. Puzzled that Pascoe would dismiss the most
serious charges against someone so "corrupt" as Quinn, and permit him to
plead guilty to a relatively minor charge, the judge pressed Pascoe for an
explanation.
I need you to explain to me . . . why are you, if the evidence is as
damning, in your words, and extensive against Rick Quinn and
Richard Quinn, . . . why are you allowing them to plead guilty to -
- ; Richard Quinn pleading guilty, and not even he's pleading
guilty, the corporation is pleading guilty. There's no personal
liability as to Richard Quinn. As to Rick Quinn, one count, the
misdemeanor misconduct in office. I mean, why have you
dismissed all the charges after four years?
Pascoe's explanation included the excuse that as Solicitor of the First Circuit
he did not have funds in his budget to pay for what he said could be a ten-week
trial. Pascoe stated to the trial court,
I never let money -- I try never to let money get in the way of an
investigation. Our office has already spent hundreds of thousands
of dollars. . . . I don't know if you know this. I have not gotten a
dime of money from the State for this case.
And my office has a budget of three million dollars. Can you
imagine what $500,000 would do? So that's a sixth of my budget.
Those were factors as to why we considered this plea.
This Court pushed back on that. At oral argument before us on October 15,
2019, a Justice pressed Pascoe for an explanation.
You want to go back and try this case, right, even though you said
on the record to Judge Mullen in response to her question to you
. . . at the end of your PowerPoint, "Why, . . . if you have all this
damning evidence, why aren't you going forward . . . ?"
What you relied on . . . was how expensive this trial would
be. How it would exceed your budget, but you're not worried
about that now?
Pascoe responded,
I have money now. As you, your Honor knows, from the -- it's
sitting in escrow. So cost is not a problem. My office isn't going
to go bankrupt if I have more cases to try.
No, actually, we did not know. At the time of oral argument, there was nothing
in this record that indicated Pascoe now somehow has money to prosecute this
and other cases. Subsequently, however, we learned Pascoe obtained $352,000
by entering into what he calls a "corporate integrity agreement" with at least
five different corporate and governmental entities.
Having learned that—on March 12, 2020—this Court unanimously ordered
that the case be reargued. In the order, we stated,
In light of new information discovered at oral argument regarding
the State's corporate integrity agreements providing funding for
prosecutions stemming from the public corruption probe, we now
order the appeal to be reargued on April 8 . . . to address the
propriety of these agreements.
Accordingly, leave shall be granted to the parties to supplement
the record. . . . [T]he State shall file with the Clerk of this Court a
memorandum addressing the following:
1. What is the nature of the "corporate integrity agreements"
referenced at oral argument?
2. What is the authority under South Carolina law of any
representative of the State, including Solicitor Pascoe, to
enter into a "corporate integrity agreement" in either a
criminal or civil proceeding in exchange for a promise not to
sue, and to demand or accept the payment of funds from a
corporate or governmental entity or from an individual
during the course of a criminal investigation?
3. Does Solicitor Pascoe have the authority to "direct" the
expenditure of funds received pursuant to a "corporate
integrity agreement" to the First Circuit Solicitor's Office, or
must the funds be deposited in the State's general fund? The
State shall specifically address S.C. Code Ann. § 1-7-150(B)
(2005); S.C. Code Ann. § 1-7-360 (2005); and S.C. Code
Ann. § 39-3-180 (1976). Immediately upon the filing of its
memorandum, the State shall serve a copy upon opposing
counsel and upon the Attorney General (or his designee).
Within ten days of the filing of the State's memorandum,
Respondent and the Attorney General (or his designee) may
file a responsive memorandum.
Pascoe and the Attorney General filed their memoranda as directed, but the
Court has now determined that because of the current pandemic we will go
ahead and resolve this appeal without rearguing the case. Despite our receipt
of the memoranda, however, we still do not know what is a "corporate integrity
agreement," nor what authority exists under South Carolina law to enter into
such an agreement. The term has never been used by any appellate court in
this State, and the term is not used in any South Carolina statute.12 The only
legal authority Pascoe cites in his memorandum is his "unfettered discretion"
as a prosecutor. Appellant's Mem. in Resp. to Ct.'s Inquiry 3. The Attorney
General contends there is no authority, citing several reasons. The Attorney
General wrote,
The "corporate integrity agreements" are unprecedented and
without parallel in South Carolina. Not only were these
agreements, executed by the special prosecutor, far in excess of the
jurisdiction given him by this Court in Pascoe v. Wilson, but the
agreements were not authorized by South Carolina law – either
12
The term has been used under federal law to describe a completely different
thing—a settlement agreement arising out of civil litigation through which health
care providers pay no money, but agree to take certain steps within their organization
to ensure future compliance with the law, in exchange for which the Office of
Inspector General for the United States Department of Health and Human Services
agrees not to seek their exclusion from participation in Medicare, Medicaid, or other
Federal health care programs. See OFFICE OF INSPECTOR GEN., CORPORATE
INTEGRITY AGREEMENTS, https://oig.hhs.gov/compliance/corporate-integrity-
agreements/index.asp; see also Pub. Citizen v. United States Dep't of Health &
Human Servs., 66 F. Supp. 3d 196, 200 n.1 (D.D.C. 2014) ("[Corporate integrity
agreements] are part of settlement agreements . . . with companies seeking to resolve
civil and administrative health care fraud cases and avoid costly exclusion from
participation in Federal health care programs. In return for these benefits, . . . the
companies must agree to enhanced compliance measures, subject to auditing by an
outside independent party and monitoring by the [Office of Inspector General]."
(citations and internal quotations omitted)).
statute, rule of court, or judicial decision. Their existence is based
only upon "prosecutorial discretion" – which is not enough. The
rule of law must prevail.
Att'y General's Mem. in Resp. to Ct.'s Order 2-3.
Pascoe uses the term "corporate integrity agreement" to mean the payment of
money to Pascoe's First Circuit Solicitor's Office by entities he has under
investigation in exchange for a promise by Pascoe not to prosecute the entity,
so Pascoe then has funds to prosecute entities or persons who either were not
invited to pay or refused to pay. Pascoe entered these "agreements" with
SCANA, Palmetto Health, AT&T, USC, and the South Carolina Association
for Justice, each of which was under investigation by the State Grand Jury.
According to the grand jury's report, at the time Pascoe entered into each
agreement, the grand jury already determined probable cause existed that each
entity willfully violated subsection 2-17-25(A) of the Lobbyists and Lobbying
Act (2005). See Report of the 28th State Grand Jury (June 21, 2018) at 19, 22,
24, 27, 29.
In my dissenting opinion in Pascoe v. Wilson, I argued article V, section 24 of
our state constitution provided the Attorney General with the authority to
remove an appointed prosecutor from a case, "even one to whom he had
previously given complete discretion for the prosecution," 416 S.C. at 648, 788
S.E.2d at 697 (Few, J., dissenting), unless the presiding judge finds "an actual
conflict of interest on the part of the Attorney General," 416 S.C. at 647, 788
S.E.2d at 697 (Few, J., dissenting). It is clear that the result of the majority's
decision in Pascoe v. Wilson led us directly to the problems we now face in
this case.13 Pascoe's prosecution of Quinn, Richard Quinn Sr., the other
"redacted legislators," and we do not know whom else, is no longer subject to
any supervision. The Attorney General has been removed from his
constitutional role, and the First Circuit voters—who elected Pascoe as
13
I also wrote, "In all likelihood, the result" of disqualifying the Attorney General
"would be the same" even under my proposal. 416 S.C. at 648, 788 S.E.2d at 697
(Few, J., dissenting). However, following the procedure I argued was required by
law would have left the presiding judge of the State Grand Jury with at least some
responsibility or supervision.
Solicitor—are not likely to be concerned with actions he takes outside the
circuit with money he did not get from taxes they paid.
As an unsupervised prosecutor, free from any oversight or control by the
Attorney General or the First Circuit voters, Pascoe has created a "prosecutive"
mess. On one hand, by his own description, Pascoe allowed the most corrupt
politician in Columbia (Quinn) and the most corrupt entity in politics (Richard
Quinn & Associates) to go essentially scot free. On the other hand, Pascoe
accepted hundreds of thousands of dollars from major South Carolina
corporations on the promise not to prosecute them for conduct the State Grand
Jury found probable cause to believe is criminal. These and other concerns
demonstrate the risks and dangers article V, section 24 was designed to protect
against.
While the propriety of allowing Quinn to plead guilty and avoid the most
significant charges against him is beyond the review of this Court, the
"corporate integrity agreements" are not. As the majority in this case indicates,
this Court now plans to address the propriety, legality, and validity of the
agreements in our upcoming oral arguments in State v. Harrison.