State v. Jeroid J. Price ( 2023 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
State of South Carolina, Petitioner,
v.
Jeroid J. Price, Defendant.
Appellate Case No. 2023-000629
ON WRIT OF CERTIORARI TO THE COURT OF GENERAL SESSIONS
Appeal from Richland County
L. Casey Manning, Circuit Court Judge
Opinion No. 28177
Heard April 26, 2023 – Filed September 6, 2023
ORDER VACATED
Attorney General Alan McCrory Wilson, Chief Deputy
Attorney General W. Jeffrey Young, Solicitor General
Robert D. Cook, Deputy Attorney General Donald J.
Zelenka, Senior Assistant Deputy Attorney General
Heather Savitz Weiss, all of Columbia, for Petitioner.
James Todd Rutherford, of The Rutherford Law Firm,
LLC, of Columbia, for Defendant.
JUSTICE FEW: We issued a common-law writ of certiorari to review a "sealed"
order of the circuit court reducing the prison sentence of Jeroid John Price and
releasing him from prison after he served only nineteen years of his thirty-five-year
sentence on his conviction for murder. We previously issued an order unsealing all
documents in the case. We now vacate the order for two reasons: (1) the circuit
court did not have the authority to reduce the sentence because the solicitor and the
circuit court did not comply with any of the requirements set forth in the applicable
statute, and (2) the circuit court did not have the authority to close the proceedings
to the public or seal the order. We remand the defendant to the custody of the South
Carolina Department of Corrections.
I. Background
Price was convicted of murder in 2003 and sentenced to thirty-five years in prison.
The facts of the murder and the procedural history of that case are set forth in our
opinion affirming his conviction on direct appeal. State v. Price, 368 S.C. 494, 496-
97, 629 S.E.2d 363, 364-65 (2006). The parties inform us Price began serving his
sentence on December 23, 2003, and remained in prison until March 15, 2023. On
that date, the Department of Corrections released Price pursuant to an order signed
by now-retired circuit court judge L. Casey Manning on December 30, 2022.
There is no official record of the events that led to Judge Manning signing the order
releasing Price from prison. It appears, however, that in February 2022, attorney J.
Todd Rutherford—counsel for Price—contacted Solicitor Byron E. Gipson of the
Fifth Judicial Circuit about reducing Price's sentence pursuant to section 17-25-65
of the South Carolina Code (2014). In mid-December 2022, Rutherford and
Solicitor Gipson began exchanging emails with drafts of an order. According to
Rutherford, he and Solicitor Gipson met privately with Judge Manning in late
December in the judge's chambers. The Richland County "Case Management
System Public Index" does not reflect that this meeting occurred, and there is no
indication the meeting was recorded or transcribed. The victim's family was not
notified of any of these events.
On December 30, Judge Manning signed two documents. The first document,
entitled "ORDER REDUCING SENTENCE," provides,
This Matter comes before this Court by Defendant,
through his undersigned attorney, J. Todd Rutherford, who
petitions this Court to Reduce the Defendant's Sentence:
The Court finds the following facts to exist in this case:
1. That the Defendant was convicted of Murder . . .
on December 19, 2003 and came to the South
Carolina Department of Corrections on
December 23, 2003.
2. That the Defendant was sentenced to a sentence
of thirty-five years in prison by The Honorable
Reginald I. Lloyd and has served approximately
nineteen years to date.
3. Upon motion of the Solicitor in accordance with
S.C. Code Ann. § 17-25-65.
4. An account of Defendant's cooperation is
contained in an addendum attached to this Order.
THEREFORE, IT IS ORDERED that the sentence be
reduced from thirty-five years to nineteen years.
The second document states only, "Order sealed this 30th day of December of 2022,"
without identifying the "Order" being sealed.
It appears Judge Manning placed both documents in a sealed envelope, signed his
name across the seal, and wrote the date "12-30-22" on the exterior of the envelope.
At an unknown point in time, the envelope was delivered to the clerk. The envelope
bears no indication it contained an order or that the contents of the envelope related
to any particular case. Neither the envelope nor the documents inside it have ever
been file-stamped nor bear any other indication either of them were filed with the
clerk of court. As of April 19, 2023, the public index contained no entry for any
order subsequent to the clerk of court receiving this Court's remittitur from our
decision in Price's direct appeal on May 9, 2006.
It is not known how the Department of Corrections obtained the order, 1 but the
Department released Price from prison on March 15, 2023. Before March 15, as far
as we can tell, the order was known to exist only by Rutherford, Solicitor Gipson,
Judge Manning, and the circuit judge referenced in notes 1 and 3. Press accounts of
Price's release began surfacing on April 17. On April 18, the Attorney General filed
a motion in circuit court asking the order be unsealed for the preliminary purpose of
allowing his office to review it. On April 19, Solicitor Gipson wrote the Chief
Justice of this Court—with Rutherford's written consent—asking that the Court
"release and unseal the Order." Also on April 19, Solicitor Gipson issued a press
release in which he conceded, "An official Motion to Reduce the Sentence, pursuant
1
At oral argument, Rutherford stated he believed another circuit judge sent the order
to the Department of Corrections. We cannot verify this, as the event is not recorded
in the public index. However, the events described in note 3—also not recorded in
the public index—appear to support Rutherford's belief.
to 17-25-65, was never filed . . . ." In the same press release, Solicitor Gipson
requested "that this matter be reopened by the Court in order to ensure that all
statutory rights and procedures are followed correctly."
On April 20—acting on our own initiative—this Court issued a common-law writ of
certiorari. See S.C. Const. art. V, § 5 ("The Supreme Court shall have power to issue
writs or orders of injunction, mandamus, quo warranto, prohibition, certiorari,
habeas corpus, and other original and remedial writs."); S.C. Code Ann. § 14-3-310(2017) (same). 2 Initially, in a written order entered on April 20, we "direct[ed] the
Clerk of Court for Richland County to unseal the records relating to indictment
number 2003-GS-40-2295, and make all such records public." Apparently upon
receiving our April 20 order, the clerk's office opened the sealed envelope,
determined for the first time it contained what appeared to be a circuit court order
reducing Price's sentence,3 and entered the order in the public index, backdating the
entry to December 30, 2022. The "Order sealed" document—the second document
Judge Manning signed—has never been entered in the public index.
2
The term "writ of certiorari" is commonly used in American law to describe "an
extraordinary writ issued by an appellate court, at its discretion, directing a lower
court to deliver the record in the case for review." Certiorari, BLACK'S LAW
DICTIONARY (11th ed. 2019). "Certiorari" is a Latin term that means "to be more
fully informed." Id. A "writ" of certiorari is an order issued by an appellate court
that has the effect of giving the appellate court the power to review—and if necessary
reverse or vacate—the action of a lower court. This Court uses a writ of certiorari
in its ordinary course to exercise its power of discretionary review of the decisions
of the court of appeals and post-conviction relief courts. See Rule 242(a), SCACR
("The Supreme Court, or any two (2) justices thereof, may in its discretion, on
motion of any party to the case or on its own motion, issue a writ of certiorari to
review a final decision of the Court of Appeals."); Rule 243(a), SCACR ("A final
decision entered under the Post-Conviction Relief Act shall be reviewed by the
Supreme Court upon petition of either party for a writ of certiorari . . . ."). We
discuss the common-law version of a writ of certiorari in more detail in section III
of this opinion.
3
The exterior of the envelope and the "Order sealed" document bear handwritten
notations indicating another circuit judge opened the envelope on March 9 and
"resealed" it on March 29. These events were not entered in the public index,
however, and there is no indication the clerk's office was aware they occurred or
otherwise learned of the contents of the envelope before April 20.
Later on April 20, the Attorney General filed a petition with this Court on behalf of
the State asking for an "extraordinary writ" and a declaration that the order releasing
Price is void. As our April 20 writ of certiorari was still in effect when the State
filed its petition, we proceeded to consider the merits of the State's petition without
the necessity of issuing a separate writ. We held oral argument on the State's petition
on April 26. Later that day, the Court granted the relief the State sought. We
ordered,
The circuit court's order of December 30, 2022, is hereby
vacated, and the defendant Jeroid John Price is remanded
to the custody of the Department of Corrections. See S.C.
Code Ann. § 17-25-65 (2014); S.C. Const. art. I, § 9; S.C.
Code Ann. § 14-5-10 (2017). Law enforcement
authorities are directed to immediately take custody of the
defendant and return him to the Department of Corrections
to serve the remainder of his sentence. This Court will file
a formal opinion explaining the basis for its decision.
Chief Justice Beatty and Justice James dissented.
This opinion—as promised—explains the basis for our decision.
II. Issues Before the Court
The unusual urgency with which the State's petition was presented to and heard by
the Court warrants us clarifying the issues we find have been presented to the Court
and which we have considered in resolving the petition. In doing so, we are mindful
that neither the public nor the Attorney General had knowledge of the December 30
order or Price's release from prison until April 17, 2023. The Attorney General filed
his petition on April 18, we held oral argument eight days later on April 26, and we
signed the order granting relief in summary fashion also on April 26.
The threshold issue is whether the State presented any question upon which the
Court may grant the relief the State requests on this common-law writ of certiorari.
As we will explain in section III of this opinion, we find the State presented four
questions that are properly before this Court pursuant to this Court's constitutional
and statutory authority to issue a writ of certiorari.
Exercising this authority, we address the following questions in section IV of the
opinion:
A. Did the circuit court have the authority under section 17-
25-65 to reduce Price's prison sentence when the solicitor
never filed a written motion seeking that reduction and
neither the solicitor nor the circuit court otherwise
complied with the requirements of the section?
B. Did the circuit court have the authority under law to close
the proceedings to the public or seal the "ORDER
REDUCING SENTENCE?"
C. Do the State's and the circuit court's violations of the
Victims' Bill of Rights and the Victims' Rights Act warrant
vacating the order?
D. Did the circuit court have the authority under section 17-
25-65 to reduce Price's sentence below the legislatively-
mandated minimum sentence?
We grant the State relief based on our "No" answers to questions A and B. We
address the violations of the Victims' Bill of Rights and the Victims' Rights Act, but
decline to grant the State relief on that basis. We address question D but do not
answer the question.
III. This Court's Authority to Act
Article V, section 5 of the South Carolina Constitution and section 14-3-310 of the
South Carolina Code provide, "The Supreme Court shall have power to issue writs
or orders of . . . certiorari . . . ." Pursuant to this authority, we may use a common-
law writ of certiorari to correct errors of law, particularly where a trial court
exceeded its authority. See City of Columbia v. S.C. Pub. Serv. Comm'n, 242 S.C.
528, 532, 131 S.E.2d 705, 707 (1963) ("A writ of certiorari is used to keep an inferior
tribunal within the scope of its powers." (citing Ex parte Schmidt, 24 S.C. 363, 364
(1886); State ex rel. Martin v. Moore, 54 S.C. 556, 560, 32 S.E. 700, 701 (1899)));
State v. Ansel, 76 S.C. 395, 412, 57 S.E. 185, 191 (1907) ("The writ of certiorari is
issued by a superior Court to an inferior judicial or quasi-judicial tribunal or officer
to certify the record of trial to the superior Court for its review to ascertain whether
the inferior tribunal . . . exceeded its powers, or committed substantial errors of law,
but not to review the facts." (citing Ex parte Riggs, 52 S.C. 298, 302, 29 S.E. 645,
646 (1898))).4 In fact, this Court has previously used a common-law writ of
certiorari to review a circuit court's unlawful post-final-judgment reduction of a
criminal sentence. See State ex rel. McLeod v. Cnty. Ct. of Richland Cnty., 261 S.C.
478, 481, 200 S.E.2d 843, 844 (1973) ("The matters involved in this opinion are
before the Court as a result of writs of certiorari, issued by the Chief Justice,
ordering the Richland County Court to certify and return to this Court true copies of
all records in any way affecting and relating to its orders amending the original
sentences of the four individual respondents . . . ."). In McLeod, which we will
discuss in more detail in section V, we declared "void" the order reducing the
sentences of three defendants. 261 S.C. at 485-86, 200 S.E.2d at 846. We will not,
however, use a common-law writ of certiorari as a substitute for a party's right of
appeal. Ex parte Gregory, 58 S.C. 114, 115-16, 36 S.E. 433, 434 (1900). Rather, as
we said in Moore, "The writ of certiorari . . . will be granted or denied, in the
discretion of the court, according to the circumstances of each particular case, as
justice may require." 54 S.C. at 562-63, 32 S.E. at 702 (citation omitted).5
4
In some of our older cases, we stated the Court may grant a common-law writ of
certiorari if the lower court acted "without jurisdiction." See, e.g., City of Columbia,
242 S.C. at 532, 131 S.E.2d at 707; Ansel, 76 S.C. at 412, 57 S.E. at 190; Ex parte
Childs, 12 S.C. 111, 114-15 (1879). None of these cases, however, restrict our
authority on a common-law writ of certiorari to only issues of jurisdiction. Any
statements we previously made suggesting our authority on a common-law writ of
certiorari is limited to issues of jurisdiction were based on a view of the concept of
subject matter jurisdiction that has now been corrected. See Allen v. S.C. Dep't of
Corr., 439 S.C. 164, 167, 169, 886 S.E.2d 671, 672, 673 (2023) ("[W]e take this
opportunity to address the confusion that has arisen in past jurisprudence" regarding
"subject matter jurisdiction," and "The analysis of the issue in [an older case] as one
of 'subject matter jurisdiction,' which has been repeated in several cases, was
mistaken."); State v. Gentry, 363 S.C. 93, 99-101, 610 S.E.2d 494, 498-99 (2005)
(explaining the difference between subject matter jurisdiction and the power of the
court to act in a particular circumstance "[t]o end the confusion" "that has arisen in
past jurisprudence"); State v. Campbell, 376 S.C. 212, 216, 656 S.E.2d 371, 373
(2008) (addressing a circuit court's unlawful post-final-judgment reduction of an
inmate's sentence and stating, "When we used the 'lack of jurisdiction' language [in
prior cases], we meant that the trial court simply no longer has the power to act . . . .
However, framing the rule as a subject matter jurisdiction rule is incorrect.").
5
We recently stated we may issue a common-law writ of certiorari whenever we
find "exceptional circumstances exist" to warrant our doing so. Laffitte v.
Bridgestone Corp., 381 S.C. 460, 471, 674 S.E.2d 154, 160 (2009) (citing In re
Section 17-25-65 contemplates the "circuit solicitor in the county where the
defendant's case arose" will represent the State in a proceeding to reduce an inmate's
sentence. As we explain in subsection IV.A, Solicitor Gipson failed to carry out this
responsibility as required by the statute. The Attorney General stepped in pursuant
to his authority under article V, section 24 of the South Carolina Constitution, which
provides, "The Attorney General shall be the chief prosecuting officer of the State
with authority to supervise the prosecution of all criminal cases in courts of record."
The Attorney General's intervention is proper because—as we explain in subsections
A and B of section IV—the circuit court committed errors of law and exceeded its
authority. 6 In these two subsections, we explain the circuit court exceeded its
authority by violating two fundamental principles of law. First, all of our courts are
bound to follow clear and unambiguous statutory law. Second, our courts are
presumptively open and thus, no court proceedings may be closed and no court
records may be sealed from public view unless the closing or sealing is authorized
by a specific provision of law. Both of these errors warrant our issuing of the writ
of certiorari and vacating the December 30 order. See infra section V.
IV. Analysis of Issues
We begin with a short analysis of the history and purpose of section 17-25-65.
Historically, South Carolina trial courts had no authority to reduce a sentence after
it became final. McLeod, 261 S.C. at 484, 200 S.E.2d at 845; State v. Best, 257 S.C.
361, 372-73, 186 S.E.2d 272, 277 (1972); see State v. Davis, 375 S.C. 12, 16, 649
S.E.2d 178, 180 (Ct. App. 2007) (holding "once the Sentencing Judge's order became
final, . . . he . . . would [not] be permitted to alter the sentence" (citing Best, 257 S.C.
at 373-74, 186 S.E.2d at 277-78)). In 2010, our General Assembly enacted the
Breast Implant Prod. Liab. Litig., 331 S.C. 540, 543 n.2, 503 S.E.2d 445, 447 n.2
(1998)). In making this statement, we did not intend to create an additional standard
for the issuance of a common-law writ of certiorari. Rather, we simply recognized
the Court is not required to issue any writ, and doing so is in our discretion.
6
We respectfully disagree with the dissent's contention a section 17-25-65
proceeding is "not a criminal prosecution" and thus, the Attorney General's article
V, section 24 authority is not implicated. While such a proceeding is certainly an
unusual part of a criminal proceeding, a section 17-25-65 sentence reduction is no
less part of "the prosecution of [a] criminal case[]" than the initial sentencing hearing
and order.
Omnibus Crime Reduction and Sentencing Reform Act. Act No. 273, 2010 S.C.
Acts 1937, 1944. This comprehensive legislation—made up of 102 pages
comprising sixty-six sections—defined new crimes, redefined certain existing
crimes, increased sentences for many crimes, set some new mandatory minimum
sentences, and addressed post-sentencing issues such as parole, supervised release,
and sentence reductions. In section 13 of the Act—at the request of the Attorney
General and the circuit solicitors7—the General Assembly enacted section 17-25-
65. 2010 S.C. Acts at 1953-54. The State's purposes for requesting legislation
permitting reductions of final sentences included creating an incentive for inmates
to cooperate with law enforcement authorities and prosecutors to solve other crimes
and promote safety within the prisons.
Because the reduction of an inmate's sentence pursuant to the section has the effect
of undoing the final judgment of the sentencing court, however, our General
Assembly set out particular requirements that must be met before a circuit court may
even consider granting the State's request for a reduction. It is the joint responsibility
of the State, the circuit court, and if necessary this Court, to ensure strict compliance
with the requirements of section 17-25-65. As we will discuss below, these statutory
requirements include (1) the circuit solicitor must file a written motion with the clerk
of court, (2) the circuit solicitor must "send a copy" of the motion "to the chief judge
of the circuit within five days of filing," and (3) the chief judge or a judge "assigned
to that county" must conduct a hearing. § 17-25-65. In addition, based on
constitutional and other statutory provisions we discuss below, (4) the hearing must
be held in open court, and (5) the hearing must be on the record.
A. The Circuit Court's Authority under Section 17-25-65—The
Requirements of Written Motion, Hearing on the Record,
etc.
7
Section 17-25-65 was also enacted on the recommendation of the South Carolina
Sentencing Reform Commission, which was created by the General Assembly by
Joint Resolution in 2008. J. Res. No. 407, 2008 S.C. Acts 4199. "The primary duty
of the Sentencing Reform Commission [was] to prepare a comprehensive report
. . . " due "no later than June 1, 2009." 2008 S.C. Acts at 4200. In the report, the
Commission recommended: "Enact legislation . . . to allow for a reduction in
sentencing or downward departure for an offender who, after sentencing, provides
substantial assistance to a law enforcement agency, solicitors' office, or the
Department of Corrections." South Carolina Sentencing Reform Commission,
Report to the General Assembly 24 (2010).
The modern authority to reduce a final sentence derives exclusively from the General
Assembly's enactment of section 17-25-65 in 2010. Cf. Aiken v. Byars, 410 S.C.
534, 537, 765 S.E.2d 572, 573 (2014) (holding certain juveniles who received a
sentence of life without parole "are entitled to resentencing" on constitutional
grounds (emphasis added)).
Section 17-25-65 allows a circuit court to reduce an inmate's sentence under limited
circumstances. First, subsections (A) and (B) of the statute plainly require the State
file a motion before the circuit court has the authority to act. See § 17-25-65(A)
("Upon the state's motion . . . the court may reduce a sentence . . . ."); § 17-25-65(B)
(same). Subsection (C) of the statute further provides, "A motion made pursuant to
this provision shall be filed by that circuit solicitor in the county where the
defendant's case arose." § 17-25-65(C) (emphasis added). Rule 4(a) of the South
Carolina Rules of Criminal Procedure requires, "An application to the court for an
order shall be by motion which, unless made during a hearing or trial in open court
with a court reporter present, shall be made in writing, shall state with particularity
the grounds therefor, and shall set forth the relief or order sought." It is clear,
therefore, that section 17-25-65 requires the circuit solicitor to file a written motion
before the circuit court is empowered to consider reducing an inmate's sentence.
Second, subsection 17-25-65(C) provides, "The State shall send a copy to the chief
judge of the circuit within five days of filing." 8 As this Court has held, "The term
'shall' in a statute means that the action is mandatory." Johnston v. S.C. Dep't of
Lab., Licensing, & Regul., S.C. Real Est. Appraisers Bd., 365 S.C. 293, 296-97, 617
S.E.2d 363, 364 (2005) (citing Wigfall v. Tideland Utils., Inc., 354 S.C. 100, 111,
580 S.E.2d 100, 105 (2003)).
Third, section 17-25-65 clearly requires a hearing conducted by the chief judge of
the circuit or another circuit judge assigned to the county by the Chief Justice. See
§ 17-25-65(C) ("The chief judge or a circuit court judge currently assigned to that
county shall have jurisdiction to hear and resolve the motion." (emphasis added)).
Fourth, as we will explain in subsection IV.B.1, article I, section 9 of the South
Carolina Constitution provides, "All courts shall be public." When a statute requires
a hearing—as here—the hearing is presumptively open to the public.
8
This provision further supports the requirement of a written motion filed with the
clerk of court, as there can be no "copy" of a non-written motion.
Fifth, as we also explain in the same subsection of our opinion, section 14-5-10 of
the South Carolina Code (2017) provides, "The circuit courts herein established shall
be courts of record . . . ." The circuit court's hearing on a section 17-25-65 sentence
reduction, therefore, must be recorded.
These statutory and constitutional requirements serve several important functions,
all of which are relevant to this case. First, the motion is a public document. When
filed with the clerk of court, it is available to any victims, the Attorney General, the
press, and the public as notice that the circuit solicitor seeks to have an inmate
released before the expiration of his sentence. See Thornton v. Atl. Coast Line R.
Co., 196 S.C. 316, 324, 13 S.E.2d 442, 446 (1941) (discussing the importance of
public filing of orders as "constructive notice" to the parties and stating,
"Constructive notice must be sustained by an available record to which a member of
the public could have access and could find in the Clerk's office, such as deeds,
mortgages, etc., which are indexed and entered of record."). 9 This, in turn, gives any
interested party—including law enforcement authorities—an opportunity to be
heard to support or protest the proposed release. In the case of the Attorney General,
knowledge the motion has been filed enables him to comply with his obligations
under subsection 16-3-1560(D) of the Victims' Rights Act. 10 Finally as to the written
motion, it provides all interested parties the factual and legal basis for the request.
The requirement of an open and officially recorded hearing protects against the
potential abuses we discuss in subsection IV.B.1.
By signing the "ORDER REDUCING SENTENCE" without Solicitor Gipson's
compliance with the section 17-25-65 requirement of filing a written motion seeking
the reduction of the inmate's sentence, without a copy of the motion having been
provided to the chief judge of the circuit, and without otherwise complying with the
statutory requirements, Judge Manning committed multiple errors of law and acted
outside his authority. We are greatly troubled by the fact that neither Solicitor
9
The referenced discussion and quoted language comes from the order of the circuit
court, which this Court "direct[ed] . . . be reported, and . . . adopted as a part of this
opinion." 196 S.C. at 331, 13 S.E.2d at 448.
10
Because no motion was filed in this case, and the Attorney General was not
otherwise notified of the proceeding, he was prevented from complying with this
requirement.
Gipson nor Judge Manning made any effort to comply with even one of the
requirements of section 17-25-65.
B. Exclusion of the Public from the Proceedings and Sealing of
the Order
The next question we address is whether the law permitted Judge Manning to
conduct a closed hearing or seal the "ORDER REDUCING SENTENCE." The short
answer is "No."
1. Constitutional and Statutory Requirements for
Open Courts
Article I, section 9 of the South Carolina Constitution provides, "All courts shall be
public . . . ." Section 14-5-10 provides, "The circuit courts herein established shall
be courts of record, and the books of record thereof shall, at all times, be subject to
the inspection of any person interested therein." The First Amendment—as
"recognized" by the Supreme Court of the United States—protects a public "right of
access to various aspects of a criminal prosecution." In re Hearst Newspapers,
L.L.C., 641 F.3d 168, 175 (5th Cir. 2011). The Fourth Circuit has held "the First
Amendment right of access extends to [sentencing] hearings." In re Washington
Post Co., 807 F.2d 383, 389 (4th Cir. 1986); see also Hearst Newspapers, 641 F.3d
at 176 (stating all federal circuit courts that have considered the question held "the
public and press have a First Amendment right of access to sentencing
proceedings"). This Court has stated, "Judicial proceedings and court records are
presumptively open to the public under the common law, the First Amendment of
the federal constitution, and [article I, section 9 of] the state constitution." Ex parte
Cap. U-Drive-It, Inc., 369 S.C. 1, 10, 630 S.E.2d 464, 469 (2006).
We have strictly applied this constitutional requirement that courts be open to the
public and the press. We held "the decision of a judge to close any proceeding must
be supported by findings which explain the balancing of interests and the need for
closure of the proceeding." Ex parte Columbia Newspapers, Inc., 286 S.C. 116, 119,
333 S.E.2d 337, 338 (1985). We also held,
[T]he courtroom may be closed only if specific findings
are made that (1) there is a substantial probability that the
defendant's right to a fair trial will be prejudiced by
publicity, (2) there is a substantial probability that closure
would prevent that prejudice, and (3) reasonable
alternatives to closure could not adequately protect the
defendant's rights.
Ex parte Hearst-Argyle Television, Inc., 369 S.C. 69, 74, 631 S.E.2d 86, 89 (2006);
see also In re Greenville News, 332 S.C. 394, 396-97, 505 S.E.2d 340, 341 (1998)
(reciting the same requirements).
If a section 17-25-65 sentence-reduction proceeding is any different from the
sentencing proceeding addressed in Washington Post and Hearst Newspapers, or the
proceedings we addressed in Columbia Newspapers, Greenville News, or Hearst-
Argyle Television, the reasons for public access to a section 17-25-65 proceeding are
even stronger.11
The following comments from the Supreme Court of the United States were made
in a different factual context, but they are no less relevant here:
11
The test for determining whether the First Amendment applies to a certain criminal
proceeding requires a court to consider two things: "whether the . . . proceeding at
issue has traditionally been . . . open," and "whether public access . . . would tend to
operate as a curb on prosecutorial or judicial misconduct and would further the
public's interest in understanding the criminal justice system." Washington Post,
807 F.2d at 389; see also Hearst Newspapers, 641 F.3d at 175 ("The Supreme Court
has developed a two-part test for determining whether there is a First Amendment
right of access to a particular criminal proceeding: (1) whether the proceeding has
historically been open to the public and press; and (2) 'whether public access plays
a significant positive role in the functioning of the particular process in question.'"
(quoting Press-Enter. Co. v. Superior Ct. of California for Riverside Cnty., 478 U.S.
1, 8, 106 S. Ct. 2735, 2740, 92 L. Ed. 2d 1, 10 (1986))); 641 F.3d at 175 ("This test
has been referred to as the 'experience' and 'logic' test."); see also Ex parte The Island
Packet, 308 S.C. 198, 201, 417 S.E.2d 575, 577 (1992) (reciting this test). While
our "experience" with section 17-25-65 is short, the statute itself requires a public
motion and a hearing, and we are not aware of any other instance in which a circuit
court has closed or sealed any portion of a section 17-25-65 proceeding. In addition,
the "logic" supporting a First Amendment right of access was conclusively
demonstrated by what happened in this particular case. See infra section V.
Experience and logic insist that when a court considers reducing a sentence that has
become the final judgment of the court, all aspects of the proceeding—from the
solicitor's motion required by the statute to the hearing and order—be open to the
public.
The knowledge that every criminal [proceeding] is subject
to contemporaneous review in the forum of public opinion
is an effective restraint on possible abuse of judicial
power.
In re Oliver, 333 U.S. 257, 270, 68 S. Ct. 499, 506, 92 L. Ed. 682, 692 (1948).
Then quoting Jeremy Bentham, the Oliver Court stated,
[S]uppose the proceedings to be completely secret, and the
court, on the occasion, to consist of no more than a single
judge,—that judge will be at once indolent and arbitrary:
how corrupt soever his inclination may be, it will find no
check, at any rate no tolerably efficient check, to oppose
it. Without publicity, all other checks are insufficient: in
comparison of publicity, all other checks are of small
account.
333 U.S. at 271, 68 S. Ct. at 506, 92 L. Ed. at 693 (quoting 1 Jeremy Bentham,
Rationale of Judicial Evidence 524 (London, Hunt & Clarke 1827)).
2. Law Authorizing Sealing Court Records
Pursuant to the First Amendment to the United States Constitution, article I, section
9 of the South Carolina Constitution, and section 14-5-10 of the South Carolina
Code, no South Carolina court—not this Court, the court of appeals, nor any trial
court—may seal any portion of a court record from public view unless there is a
specific provision of law permitting it. While we have recognized limited instances
in which a court may use its inherent power to restrict public access to sensitive
information "such as matters involving juveniles, legitimate trade secrets, or
information covered by a recognized privilege," Cap. U-Drive-It, 369 S.C. at 10,
630 S.E.2d at 469, we emphasize such inherent power is very narrow.
We have attempted on numerous occasions to make clear to the public, to the bench,
and to the bar that the sealing of any part of a court record is a serious matter
requiring lawful authority and specific findings of fact that justify the sealing. See,
e.g., Davis v. Jennings, 304 S.C. 502, 506, 405 S.E.2d 601, 604 (1991) (requiring
"when a protective order sealing the record is sought, the trial court shall make
specific factual findings, on the record"); Cap. U-Drive-It, 369 S.C. at 12, 630 S.E.2d
at 470 (same). In 2003, this Court adopted Rule 41.1 of the South Carolina Rules of
Civil Procedure. We explained in the "Purpose" section,
Because South Carolina has a long history of maintaining
open court proceedings and records, this Rule is intended
to establish guidelines for governing the filing under seal
of settlements and other documents. Article I, § 9, of the
South Carolina Constitution provides that all courts of this
state shall be public and this Rule is intended to ensure that
that Constitutional provision is fulfilled.
Rule 41.1(a), SCRCP.
Although Rule 41.1 is not directly applicable in criminal court, it illustrates the level
of detailed documentation the law requires of the party asking for sealing and of an
appellate, circuit, or family court considering granting the request.
3. Closed Proceeding and Sealing Order in this Case
Turning to the proceedings in this case, Judge Manning made no attempt to
determine whether the law permitted any portion of the proceedings to be closed to
the public. First, there is nothing in section 17-25-65 providing for closure of the
proceeding. Second, under general provisions applicable to all court proceedings,
"Judicial proceedings . . . are presumptively open to the public . . . ." Cap. U-Drive-
It, 369 S.C. at 10, 630 S.E.2d at 469. To overcome this presumption, the party
seeking to close any proceeding must present evidence supporting the closure, and
the court considering closure must make specific "findings which explain the
balancing of interests and the need for closure of the proceeding," Columbia
Newspapers, 286 S.C. at 119, 333 S.E.2d at 338, including the three specific findings
required by Hearst-Argyle Television, 369 S.C. at 74, 631 S.E.2d at 89.
In Columbia Newspapers, Greenville News, and Hearst-Argyle Television, this
Court addressed the closure of the proceeding and vacated or reversed the closure
order even though the issue had become moot. See Columbia Newspapers, 286 S.C.
at 118, 119, 333 S.E.2d at 338 (finding the issue moot yet vacating the closure order);
In re Greenville News, 332 S.C. at 397, 505 S.E.2d at 342 (vacating the order closing
a pre-trial hearing long after the trial was completed); Hearst-Argyle Television, 369
S.C. at 73, 80, 631 S.E.2d at 88, 92 (finding the issue moot, yet reversing the closure
order). Here, the issue is not moot. On the merits, therefore, Judge Manning did
nothing to determine whether the law permitted closure of the proceedings. His
hosting of a private meeting in his chambers instead of conducting an open hearing
is a clear violation of the First Amendment and article I, section 9 of the South
Carolina Constitution. Thus, the closure of the proceedings in this case was an error
of law beyond the authority of the circuit court.
As to Judge Manning's attempt to seal the "ORDER REDUCING SENTENCE," we
begin by making clear that even if there were lawful authority to seal a portion of
the record here, and even if there were a sufficient factual basis to support sealing a
portion of the record here,12 the order itself should never have been sealed. To
illustrate the importance of this point, the sealing of an order related to the conviction
or sentencing of a criminal defendant prevents the clerk of court from complying
with subsection 14-17-325(A) of the South Carolina Code (Supp. 2022), which
provides, "Every clerk of court shall report the disposition of each case in the Court
of General Sessions to the State Law Enforcement Division within five days of
disposition . . . ."
In an appropriate case, if there is legal authority and a sufficient factual basis, the
circuit court may issue an order sealing a portion of a court record. But the act
itself—the order of the court—must never be sealed unless specifically permitted by
statute. See, e.g., S.C. Code Ann. § 17-30-100(C) (2014) (mandating that orders
authorizing interception of electronic communications must be sealed); S.C. Code
Ann. § 63-7-2600 (2010) (requiring sealing of "all court records" related to
termination of parental rights). Without such specific statutory authority, an order
of the court "shall, at all times, be subject to the inspection of any person interested
therein." § 14-5-10.
Here, however, there is no authority to seal anything.13 Far from there being any
provision of law that permitted the sealing of this order, the sealing of the order is
12
Throughout this opinion we have made reference to sealing a "portion" of a court
record. The use of this language is intentional, as it is never permitted under law to
seal the entire file of a case, under any circumstance, except as specifically provided
by law. See, e.g., S.C. Code Ann. § 15-49-20(K) (Supp. 2022) ("Upon the
petitioner's request, after granting the name change, the court shall seal the file if the
court finds that the safety of the petitioner seeking the name change or the safety of
the petitioner's child or ward warrants sealing the file." (emphasis added)).
13
At oral argument, counsel for Price argued it was necessary to seal the information
underlying the decision to release Price from prison "to protect the identity of
someone that was still in the Department of Corrections in recognition that telling
contrary to subsection 14-17-325(A) which requires a clerk of court to report the
sentence reduction to SLED. Judge Manning did nothing to determine whether the
law permitted the sealing of any portion of the court record. Therefore, the law did
not permit Judge Manning to seal the "ORDER REDUCING SENTENCE." Judge
Manning acted outside his authority and committed an error of law.
C. Victims' Bill of Rights and Victims' Rights Act
The State contends we should vacate the order on the ground the solicitor and the
circuit court violated the Victims' Bill of Rights and the Victims' Rights Act. We
agree the solicitor and the circuit court violated both.
In February 1998, our General Assembly amended the Constitution of South
Carolina to add the Victims' Bill of Rights by ratifying the vote of the people of
South Carolina in the 1996 general election. S.C. Const. art. I, § 24; Act No. 259,
1998 S.C. Acts 1835, 1836-38. Among its many important provisions, the Victims'
Bill of Rights provides,
To preserve and protect victims' rights to justice and due
process . . . , victims of crime have the right to . . . be
informed of any proceeding when any post-conviction
action is being considered, and be present at any
post-conviction hearing involving a post-conviction
release decision.
the world—including the victims in this case—what happened and who was
involved, that it would put his life in jeopardy." While we are sensitive to these
concerns, the criminal justice system confronts situations on a regular basis in which
confidential informants, cooperating codefendants, and other witnesses provide
information that will put their lives or safety at risk when their cooperation is
discovered by those implicated. We are certain the General Assembly was aware of
this concern when it enacted section 17-25-65, yet the General Assembly chose not
to address the concern. We find Price's alleged cooperation with the State
documented in the materials submitted to Judge Manning does not differ in any
significant manner from the same type of cooperation that becomes public on a
regular basis in other cases. We are confident that to the extent any such concern
for the safety of a cooperating inmate arises in the future, the State, counsel for the
inmate, and the circuit court may effectively deal with that concern without sealing
any portion of the record.
S.C. Const. art. I, § 24(A)(10).
The General Assembly implemented the Victims' Bill of Rights by enacting the
Victims' Rights Act. See S.C. Code Ann. §§ 16-3-1505 to -1565 (2015 & Supp.
2022). Pursuant to the Victims' Rights Act, "The prosecuting agency[14] reasonably
must attempt to notify each victim of each hearing, trial, or other proceeding. This
notification must be made sufficiently in advance to allow the victim to exercise his
rights contained in this article." § 16-3-1545(I). The "rights contained in this article"
include the right to "attend" the proceeding. See Ex parte Littlefield, 343 S.C. 212,
218, 540 S.E.2d 81, 84 (2000) (stating "the rights granted to the victims by the
Victims' Bill of Rights . . . include[] the right to be informed of and attend any
criminal proceeding which is dispositive of the charges where the defendant has the
right to be present"). "A circuit . . . court judge, before proceeding with a trial, plea,
sentencing, or other dispositive hearing in a case involving a victim, must ask the
prosecuting agency to verify that a reasonable attempt was made to notify the victim
sufficiently in advance to attend." § 16-3-1550(D). The Attorney General has a
separate, mandatory obligation under subsection 16-3-1560(D) to "confer with
victims regarding the defendant's appeal and other post-conviction proceedings."
There can be no doubt that an attempt to reduce an inmate's sentence under section
17-25-65 is a "proceeding" governed by the Victims' Bill of Rights and the Victims'
Rights Act. 15 The solicitor's failure to notify the victim's family of the proceeding
14
The "prosecuting agency" is defined as "the solicitor, Attorney General, . . . or any
person or entity charged with the prosecution of a criminal case . . . ." § 16-3-
1510(5).
15
The General Assembly used "post-conviction proceedings" in the Victims' Rights
Act in a way that clearly includes more than just post-conviction relief proceedings
under the Uniform Post-Conviction Procedure Act in Chapter 27 of Title 17 of the
South Carolina Code. S.C. Code Ann. § 16-3-1560(A) (defining "proceedings
affecting the probation, parole, or release of the offender" and proceedings under the
sexually violent predator act as "post-conviction proceedings"); § 16-3-1560(F)
("The Attorney General reasonably must attempt to notify a victim of all post-
conviction proceedings" including proceedings under the sexually violent predator
act); see also State v. Barlow, 372 S.C. 534, 538, 643 S.E.2d 682, 684 (2007)
(applying right to attend post-conviction proceeding to probation revocation
hearing).
and the circuit court's failure to inquire whether the solicitor did so violated both the
Victims' Bill of Rights and the Victims' Rights Act.
However, both the Victims' Bill of Rights and the Victims' Rights Act contain
provisions indicating failure to comply should not be cause to invalidate or set aside
the orders of a court. See S.C. Const. art. I, § 24(C)(1) ("A victim's exercise of any
right granted by this section is not grounds for dismissing any criminal proceeding
or setting aside any conviction or sentence."); § 16-3-1565(B) ("A sentence must not
be invalidated because of failure to comply with the provisions of this article."). In
the past, our appellate courts have not used violations of the Victims' Bill of Rights
or Victims' Rights Act to overturn any action by a trial court. See Littlefield, 343
S.C. at 223, 540 S.E.2d at 87 (refusing "to re-open a case" based on violations of the
Victims' Rights Act). While we stress to all participants in the criminal justice
system the critical importance of compliance with the Victims' Bill of Rights and the
Victims' Rights Act, under article I, section 24(C)(1), subsection 16-3-1565(B), and
the reasoning of Littlefield, we decline to grant the State relief on the basis of these
violations.
D. The Circuit Court's Authority under Section 17-25-65—
Mandatory Minimum Sentences
The State contends a circuit court does not have the authority under section 17-25-
65 to reduce a murder sentence. In its April 20 petition, the State argued a person
convicted of murder "is not eligible for any credit that would reduce the sentence
below the mandatory minimum of 30 years." At oral argument, the State argued no
murder sentence may be reduced at all because of the specific language the General
Assembly included in subsection 16-3-20(A) of the South Carolina Code (2015).
That subsection provides,
No person sentenced to a mandatory minimum term of
imprisonment for thirty years to life pursuant to this
section is eligible for parole or any early release program,
nor is the person eligible to receive any work credits,
education credits, good conduct credits, or any other
credits that would reduce the mandatory minimum term of
imprisonment for thirty years to life required by this
section.
The State argues that because section 17-25-65 does not authorize a circuit court to
reduce a murder sentence of any length, the "ORDER REDUCING SENTENCE" is
void. We find it unnecessary to reach the merits of this argument.
V. Circumstances Warranting Vacating the December 30 Order
In this case, justice requires we exercise our discretion to vacate the "ORDER
REDUCING SENTENCE" pursuant to our April 20 writ of certiorari. We have
explained the two fundamental violations of law that led to this order: Solicitor
Gipson's failure to follow the law in making the request for a sentence reduction—
without satisfying any of the requirements set forth in the statute; and the closing of
the proceedings and the sealing the order in violation of federal and state
constitutional law and a long line of decisions of this Court. Both of these failures
were necessary to facilitate Solicitor Gipson's plan to keep the public from knowing
that Gipson agreed to have this convicted murderer released early. The plan worked,
until the press found out about Price's release, until this Court exercised its
constitutional authority to issue a writ of certiorari and unsealed all documents, until
the Attorney General stepped in to demand the law be followed. This case
demonstrates the wisdom of our General Assembly in including the specific
requirements of section 17-25-65 that must be satisfied before an inmate's sentence
may be reduced. This case reminds us of the critical importance of open courts and
the reasons court orders may not be sealed. This case validates the Attorney
General's supervisory authority over the circuit solicitors pursuant to article V,
section 24. With due respect for the dissent's position to the contrary, it is not despite
the fact Solicitor Gipson had the power to represent the State in seeking this sentence
reduction that we find it necessary to act. It is because Solicitor Gipson in doing
so—and Judge Manning in signing the order—fundamentally failed to follow the
law; it is for this reason that we exercise our authority to vacate the order pursuant
to a writ of certiorari under article V, section 5 and section 14-3-310. When
circumstances such as these arise, it is the constitutional and statutory duty of this
Court to act.
The dissent criticizes us for "undo[ing] the proceedings" by vacating the "ORDER
REDUCING SENTENCE" instead of simply standing on our April 20 order
unsealing it. We find ample support in our prior decisions to vacate the order. We
begin with State ex rel. McLeod v. County Court of Richland County. In that case,
four defendants were convicted of unrelated crimes in the former County Court of
Richland County between 1969 and 1972, sentenced to prison terms, and serving
their sentences. 261 S.C. at 482-85, 200 S.E.2d at 844-46. In each case, however—
six months or more after the original sentence was imposed—the sentencing judge
signed orders "purporting to amend the sentences originally imposed upon the
individual respondent." 261 S.C. at 485-86, 200 S.E.2d at 846. Reviewing those
four orders on a common-law writ of certiorari, we found the issues as to one
defendant moot, 261 S.C. at 485, 200 S.E.2d at 846, but held the other three orders
reducing the original sentences were "void" because the judge who signed them did
not have the authority to do so, 261 S.C. at 486, 200 S.E.2d at 846. We vacated the
orders and remanded the three defendants to the custody of the proper department to
serve the remainder of their sentences. Id.The dissent includes a lengthy discussion of the cases we rely on involving closed
proceedings and contends "those cases do not support [our] decision to vacate the
sentence-reduction order." In each of these cases, the dissent points out, the court
simply reversed the order closing the proceedings; it did not vacate the order entered
as a result of the proceedings. Each of those cases—though authoritative on when a
courtroom may be closed—is distinguishable from this case as to the appropriate
remedy because the issue there arose under circumstances different from the
compelling circumstances we face in this case. First, in each of the cases, the
existence of the case was publicly known, as opposed to this case in which the only
proceeding was closed to the public and every document was sealed from public
view. In fact, in each of the cases, it was the press's knowledge of the closing of the
proceedings that led to the filing of the action to open the proceedings. In this case,
on the contrary, neither the press, the public, the victims, law enforcement, nor the
Attorney General had any idea even of the existence of the case until months after
the final order was signed, and over a month after the order was acted upon to release
Price from prison.
Second, in each of the cases, the order we reversed was an interlocutory order
addressing one or more procedural issues in the case. None of the orders we reversed
in those cases was the final order in the case. In this case, the closed proceeding and
the sealed order that flowed from it involved the final order in the case, the one that
released Price from prison.
The dissent also accuses us of "rescu[ing] the State from a problem it created." We
prefer to view it as rescuing the rule of law by fulfilling our responsibility to ensure
that our government officials and courts act within their authority. In this regard,
there is no "follow[ing] the majority's approach to its logical extreme." We simply
decide this case on its unique and remarkably-egregious facts. We cannot imagine
that if the solicitor and the circuit court had followed the law the Attorney General
would even attempt to intervene, nor certainly that this Court would grant the relief
we find necessary here.
VI. Conclusion
This Court has the power under article V, section 5 of our constitution and section
14-3-310 of our code of laws to issue a writ of certiorari to address any act of a lower
court that is outside of that court's authority or otherwise contrary to law. Pursuant
to article V, section 5 and section 14-3-310, for the reasons explained above, we find
the "ORDER REDUCING SENTENCE" is both outside the circuit court's authority
and contrary to law. We vacate the order and remand Jeroid John Price to the
custody of the South Carolina Department of Corrections where he must serve the
remainder of his thirty-five-year sentence for murder.
ORDER VACATED.
KITTREDGE and HILL, JJ., concur. JAMES, J., dissenting in a separate
opinion in which BEATTY, C.J., concurs.
JUSTICE JAMES: A sentence reduction under section 17-25-65 is not
possible unless the State of South Carolina asks for the reduction. Here, if the
State had refused to ask for a sentence reduction for Price, that would have
been the end of it. However, the State sought and obtained the very sentence
reduction it now asks this Court to vacate. The State prepared the sentence-
reduction order and presented it to the circuit judge for his signature. In doing
so, the State created the unfortunate state of affairs the State now asks this
Court to untangle. I would be the first to say that Price deserved every day of
his 35-year sentence, but the Court should not be short-sighted and overlook
the impact of today's decision; the process matters. We should not permit the
State to resort to the judicial branch for relief from the State's own poor
choices, as embarrassing as they may be for the State. Therefore, I dissent.
The majority vacates the sentence-reduction order for the following reasons:
(1) because of certain procedural defects, the circuit court did not have
authority to sign the order; (2) a hearing was not held; and (3) the order was
improperly sealed. I believe the majority is wrong on each point. I agree with
the majority's rejection of the State's contention that the order is void because
the victims were not notified of the proceedings. In light of its decision to
vacate the order, the majority does not reach the potential conflict between
South Carolina Code section 17-25-65 (2014) and subsection 16-3-20(A)
(2015). As I will discuss, the sentence-reduction provisions of section 17-25-
65 are not impacted by subsection 16-3-20(A).
During oral argument, the Attorney General, appearing for the State, conceded
the obvious when he said, "The State is the State is the State" and "the State
failed." As I will repeat perhaps too many times, this Court should not relieve
the State from an order the State procured.
I. Background
Price was convicted of murdering Carl Smalls in 2003 and was sentenced to
thirty-five years in prison. His conviction was affirmed by this Court in 2006.
While in prison, Price allegedly assisted the South Carolina Department of
Corrections (SCDC) in three particulars. The record shows the State relied
upon all three in requesting the circuit court to reduce Price's sentence from
thirty-five to nineteen years. First, according to an unsigned addendum
attached to the circuit court's order, Price alerted SCDC at some point that a
fellow inmate had escaped from prison and been on the run for three days.
Second, an SCDC inmate swore by affidavit that he saw Price rescue a
correctional officer from serious injury or death after the officer was attacked
by several other inmates. There is no affidavit from the officer who was
attacked. Third, a former correctional officer swore by affidavit that another
correctional officer told her Price had rescued the other officer from harm after
being attacked by an inmate. This affidavit is rank hearsay, and there is no
affidavit from the officer who was supposedly attacked. These three
accounts—an unsigned addendum, an affidavit from an inmate, and a hearsay
affidavit—convinced the State to request a sentence reduction. Perhaps the
State investigated the accounts to verify they were true. While the truth of
Price's alleged heroics is not before us, their suspect veracity is perhaps one
reason for the State's regret over choosing to ask for a reduction.
The Solicitor and J. Todd Rutherford, Price's attorney, were in contact about a
sentence reduction for Price as early as February 2022. Emails exchanged by
the Solicitor and Mr. Rutherford's office establish that Mr. Rutherford prepared
the first draft of a proposed sentence-reduction order and submitted the draft
to the Solicitor on December 15, 2022. There was evidently communication
between the two offices after December 15, because on December 28, Mr.
Rutherford's law clerk forwarded another draft of a proposed order in the
following email to the Solicitor and one of his deputies: "This draft should be
void of any problem language contained in its original version. Could one of
you double-check that we made the appropriate corrections?" The next day,
December 29, the Solicitor sent an email to Mr. Rutherford's law clerk, asking
her to "consult with Mr. Rutherford regarding the need for language in this
proposed order that specifically references the assistance Mr. Price provided
to law enforcement and the benefit [law enforcement] derived from it." In an
email later that day, Mr. Rutherford's law clerk sent the Solicitor another draft,
which included the addendum detailing Price's alert to SCDC that another
inmate had escaped and been on the loose for three days. 16
16
The escaped inmate was Jimmy Causey. He escaped in July 2017 and was
eventually apprehended in Texas. SCDC's Incarcerated Inmate Search reflects
Causey is a two-time escapee, having first escaped in 2005. Inmate Search Detail
Report for Jimmy Causey, S.C. Dep't of Corr., https://public.doc.state.sc.us/scdc-
The final email in the record is important. In that email—dated December
30—the Solicitor stated to Mr. Rutherford's law clerk, "Attached is the final
revision that will be submitted to Judge Manning for his signature." Judge
Manning signed the order that day. There is no letter or other communication
in the record from the Solicitor to either Mr. Rutherford or Judge Manning
requesting the order be held pending a filed motion, formal hearing, or notice
to the victims. The order clearly states it was submitted "[u]pon motion of the
Solicitor in accordance with S.C. Code Ann. § 17-25-65," and it reduced
Price's sentence to the nineteen years he had already served.
When the State presented the final version of the sentence-reduction order to
Judge Manning on December 30, the State knew at least six things: (1) in 2003,
Price was convicted of murder and sentenced to thirty-five years in prison; (2)
beginning in 1995, subsection 16-3-20 provided the mandatory minimum
sentence for murder was thirty years and the maximum sentence was life
without parole; (3) in the event of a "numerical" sentence, subsection 16-3-
20(A) requires a murder defendant to serve the time day-for-day; (4) Mr.
Smalls' parents and other family members deemed "victims" were entitled to
notice of certain proceedings; (5) section 17-25-65 was enacted in 2010 and
sets forth various procedures to be followed when a sentence reduction is
contemplated; and (6) there is an interpretive tension between the mandatory
minimum provision of subsection 16-3-20(A) and the subsequently enacted
section 17-25-65.
The State requests this Court issue a writ of prohibition declaring the
sentence-reduction order void, which I will address in section III. The majority
evidently agrees such a writ does not lie to correct procedural irregularities in
this case because the majority does not discuss that issue. The majority writes
extensively about the history of this Court's authority to issue a common law
writ of certiorari. That history is irrelevant, as we unanimously voted to issue
a common law writ of certiorari to review the case. The mere issuance of the
writ does not automatically afford relief to a party. To be sure, we have
authority to issue a common law writ of certiorari to address the State's
public/ (search First Name field for "Jimmy" and Last Name field for "Causey," then
click on "Causey, Jimmy").
contentions; however, the writ should be dismissed as improvidently granted
if the facts and the law demand. This case is such a case.
II. Attorney General's Authority
One reason the writ should be dismissed outright is that the Attorney General
does not have authority to ask for or obtain relief in this case. The majority
concludes "[t]his case validates the Attorney General's supervisory authority
over the circuit solicitors pursuant to article V, section 24." The majority gives
the Attorney General authority he does not have. Article V, section 24
provides, "The Attorney General shall be the chief prosecuting officer of the
State with authority to supervise the prosecution of all criminal cases in courts
of record." S.C. Const. art. V, § 24. A sentence-reduction proceeding is not a
criminal prosecution. The criminal prosecution of Price ended in 2006 when
his conviction was affirmed by this Court and a remittitur was returned, over
sixteen years before the State initiated Price's sentence-reduction proceeding.
Article V, section 24 does not extend the Attorney General's supervisory
authority to "supervise" a sentence-reduction proceeding. But assume for the
moment that article V, section 24 does extend the Attorney General's
supervisory authority to sentence-reduction proceedings. Channeling the
Attorney General's concession that "the State is the State is the State," it is
patently improper for the Attorney General to obtain relief from a reduction
order the State, by and through the Solicitor, sought and obtained.
Allowing the Attorney General to appear at this stage not only ignores the fact
that a sentence-reduction proceeding is not a criminal prosecution, but it also
diminishes the "strong measure of independence" enjoyed by elected solicitors.
In State ex rel. McLeod v. Snipes, we said:
We take judicial notice of the fact that there are now, in addition
to the staff of the Attorney General, sixteen solicitors and as many
or more assistant solicitors.
Although the Attorney General is designated the chief prosecuting
officer and has 'authority to supervise the prosecution of all
criminal cases in courts of record', the fact remains that the
solicitors are elected in this State by the people and maintain a
strong measure of independence.
266 S.C. 415, 420, 223 S.E.2d 853, 855 (1976) (emphasis added). If we follow
the majority's approach to its logical extreme, the Attorney General can
"intervene"—the majority's characterization, not mine—in every sentence-
reduction decision made by a solicitor. The Solicitor welcomes the Attorney
General coming to his rescue in this case, but the precedent this case sets does
violence to the strong measure of independence enjoyed by solicitors.
When it enacted section 17-25-65, the General Assembly surely considered the
"strong measure of independence" enjoyed by solicitors. Indeed, section 17-
25-65 explicitly requires the State to act through "the circuit solicitor in the
county where the defendant's case arose." (emphasis added).
III. State's Subject Matter Jurisdiction Argument
The State's primary argument is that the sentence-reduction order it procured
is void for lack of subject matter jurisdiction. The majority correctly notes
some of our caselaw misstates the concept of subject matter jurisdiction. To
ensure completeness, I will briefly address the State's meritless subject matter
jurisdiction argument.
"Subject matter jurisdiction is the power of a court to hear and determine cases
of the general class to which the proceedings in question belong." Pierce v.
State, 338 S.C. 139, 150, 526 S.E.2d 222, 227 (2000) (citing Dove v. Gold Kist,
Inc, 314 S.C. 235, 442 S.E.2d 598 (1994)). Under section 17-25-65, the circuit
court undoubtedly has subject matter jurisdiction to consider the reduction of
a prison sentence when an inmate has rendered "substantial assistance" to the
State. Subsection 17-25-65(C) sets forth procedural steps in the process. A
motion for sentence reduction is to be made by the "circuit solicitor in the
county where the defendant's case arose." S.C. Code Ann. § 17-25-65(C). The
solicitor must "send a copy to the chief judge of the circuit within five days of
filing." Id.The motion may be heard by either the "chief judge" (presumably the chief
administrative judge for general sessions in that circuit) or "a circuit court
judge currently assigned to that county . . . ." Id. Judge Manning, the judge
who considered the State's request and ultimately signed the sentence-
reduction order, was a resident judge of the Fifth Judicial Circuit. His
chambers were in the Richland County Judicial Center. According to the South
Carolina Judicial Branch website, Judge Manning's assignment from Monday,
December 26 to Friday, December 30, 2022, was "In Chambers." 17
The State contends two procedural defects in the circuit court proceedings
deprived the circuit court of subject matter jurisdiction. The majority cites
these deficiencies in holding the circuit court did not have "authority" to sign
the order. I will discuss these deficiencies in detail in Part IV below, but none
deprived the circuit court of subject matter jurisdiction.
The matter came before us on the State's petition for a writ of prohibition, about
which this Court has observed:
[I]t has been settled in this state from an early period that . . . if the
inferior court or tribunal has jurisdiction of the person and subject-
matter of the controversy, the writ [of prohibition] will not lie to
correct errors and irregularities in procedure, or to prevent an
erroneous decision.
State v. Isaac, 405 S.C. 177, 185 n.6, 747 S.E.2d 677, 681 n.6 (2013) (quoting
New S. Life Ins. Co. v. Lindsay, 258 S.C. 198, 199-200, 187 S.E.2d 794, 796
(1972) (second alteration in original)).
As a resident circuit judge of the Fifth Judicial Circuit assigned to his Richland
County chambers on December 30, 2022, Judge Manning had the power to
hear and decide the question of whether Price would receive a sentence
reduction. A writ of prohibition will not lie to correct the procedural
irregularities in this case, nor will such a writ lie to prevent an erroneous result
or, better put here, a result that saves the State from itself.
IV. Procedural Defects
A. The circuit court's purported "lack of authority"
17
Assignment of Judges to Terms of Circuit Court December 2022, S.C. Jud. Branch,
https://www.sccourts.org/calendar/dspCCJudgeAsgPrint.cfm (change month to
"December," change year to "2022," choose "Go To Date, " and scroll to "Manning,
L. Casey").
The majority concludes the circuit court lacked "authority" to consider a
sentence reduction for Price because of certain procedural defects. I disagree.
Three procedural requirements recited by the majority are set forth in section
17-25-65 and have been addressed by the parties: (1) the circuit solicitor shall
file a motion with the Clerk of Court in the county in which the defendant's
case arose; (2) the circuit solicitor shall send a copy of the motion to the chief
administrative judge of the circuit within five days of filing; and (3) the chief
administrative judge or a judge "assigned to that county" has the authority "to
hear and resolve the motion." S.C. Code Ann. § 17-25-65(C). The majority
concludes the statute implicitly requires a hearing to be held in open court and
that the hearing must be on the record.
The majority contends that a written motion, when filed with the clerk of court,
"is available to any victims, the Attorney General, the press, and the public as
notice" that a solicitor seeks a sentence reduction for an inmate. The majority
also writes that the filing of a motion would give "any interested party[,]"
including law enforcement, the opportunity to be heard. I first note that the
mere filing of a motion does not put anyone on notice of anything. It is the
service of a filing that places persons on notice of proceedings in general and
of the specifics contained in the filing. Section 17-25-65 does not require any
filing to be served on the Attorney General, law enforcement agencies, or the
public. Certainly, the mere filing of a motion does not put the Attorney General
on notice of a solicitor's request for sentence reduction. Because both the
Attorney General and the solicitors are "the State," the Attorney General has
notice of every proceeding in which a solicitor participates.
The State either caused or acquiesced in each procedural shortcoming in this
case. We should not grant the State relief from the sentence-reduction order
just because the State regrets the result it sought and obtained in the circuit
court.
B. Lack of a hearing and the sealing of the order
While I disagree with the majority's premise that a sentence-reduction
proceeding is a "sentencing proceeding," I do not dispute the obvious.
"Judicial proceedings and court records are presumptively open to the public
under the common law, the First Amendment of the federal constitution, and
the state constitution." Ex parte Cap. U-Drive-It, Inc., 369 S.C. 1, 10, 630
S.E.2d 464, 469 (2006); see S.C. Const. art. I, § 9 ("All courts shall be
public[.]"); Davis v. Jennings, 304 S.C. 502, 505-06, 405 S.E.2d 601, 603
(1991).
There is certainly unanimity in this Court that any court should exercise great
care and discretion before closing proceedings or sealing any portion of a court
record. Justice Burnett put it best when writing for the Court in U-Drive-It:
Public access to courts and their records serves several
fundamental interests which are crucial to the proper functioning
of judicial and government systems. Public access discourages
perjury and encourages bringing the truth to light because
participants are less likely to testify falsely in a sunlit courtroom
before their neighbors than in a private room before court officials.
Public access promotes free discussion of governmental affairs by
imparting a more complete understanding to the public of the
judicial system and issues resolved by that system. Public access
serves as a check on inappropriate or corrupt practices by exposing
the judicial process to public scrutiny. Lawyers, witnesses, and
judges may perform their duties in a more conscientious manner,
knowing their conduct will be subject to public scrutiny either at
the time of the proceeding or later through disclosure of court
records.
369 S.C. at 10-11, 630 S.E.2d at 469-70.
I agree with Justice Burnett. However, a key question with respect to U-Drive-
It, Davis, and other cases cited by the majority is what remedy is appropriate
if the proceedings were wrongly closed or a portion of the record was
improperly sealed? In such cases, the appropriate remedy is to vacate both the
order closing the proceedings and the order sealing documents, not to undo the
proceedings. In our April 20, 2023 order, we granted the appropriate remedy
by directing the Richland County Clerk of Court to unseal the sentence-
reduction order.
Obviously, there are due process considerations if a hearing is improperly
closed to a party or if a party is improperly precluded from reviewing all or
part of a court record. That is not the issue we have here. Here, over the course
of ten months, the State communicated with Price's attorney about a sentence
reduction for Price. The December 2022 emails prove at least three things
about the two weeks leading up to the day the order was signed: the State and
Price's attorney communicated about the specific content of the sentence-
reduction order, the State prepared the final version of the order, and the State
presented the order to the circuit court. The majority concludes, in part, that
the order must be vacated because, the proceedings were improperly closed to
the public and the order was improperly sealed.
The cases cited by the majority support the majority's conclusion (with which
I agree) that proceedings should not be improperly closed to the public.
However, those cases do not support the majority's decision to vacate the
sentence-reduction order.
First, the majority cites Ex parte Columbia Newspapers, Inc., 286 S.C. 116,
333 S.E.2d 337 (1985). In that case, the family court issued an order closing
the trial of two juveniles accused of murdering their mother. We held that even
though South Carolina Code section 20-7-755 (1976) validly contemplated
closing a family court juvenile trial, the order closing the trial to the public
violated article I, section 9 of the South Carolina Constitution. We held that
when a family court's decision to close a juvenile hearing is challenged by the
public or the media, the family court must make specific findings that the
closure of the hearing was necessary to protect the rights of the juveniles
involved. Crucially, in holding the family court did not make the appropriate
findings, we did not vacate the entire proceedings before the family court. We
vacated only the order closing the trial.
The majority also cites In re Greenville News, 332 S.C. 394, 505 S.E.2d 340(1998). Greenville News stemmed from a death penalty case in which the
circuit court issued an order closing a pretrial suppression hearing. The
Greenville News challenged the order, claiming it violated the rule against
closure of pretrial hearings. This Court agreed. The remedy granted by this
Court? Vacating the circuit court's order closing the hearing, not vacating the
order ruling on the merits of the suppression issues. Id. at 397, 505 S.E.2d at
342.
The majority also cites Ex parte Hearst-Argyle Television, Inc., 369 S.C. 69,
631 S.E.2d 86 (2006). In Hearst-Argyle Television, the circuit court conducted
a suppression hearing in a death penalty case after ordering the hearing closed
to the media. The hearing moved forward without media present. Two media
outlets appealed. We agreed with the media outlets that the proceedings were
improperly closed. However, the remedy again imposed by this Court was to
vacate the closure order, not to vacate the rulings made by the circuit court in
the suppression hearing. Id. at 77, 631 S.E.2d at 90.
The majority also cites In re Washington Post Co., 807 F.2d 383 (4th Cir.
1986), and In re Hearst Newspapers, L.L.C., 641 F.3d 168 (5th Cir. 2011). In
Washington Post, the trial court closed a plea hearing and sentencing hearing
in an espionage case. 807 F.2d at 385. Noting the plea and sentencing hearings
had already been conducted, the Fourth Circuit determined the proper remedy
was to "simply vacate the orders" closing the hearings. Id. at 393. The Fourth
Circuit did not vacate the results of the hearings. In Hearst Newspapers, the
district court issued an order closing the sentencing proceeding of a drug cartel
leader. A reporter employed by Hearst Newspapers attempted to enter the
courtroom but was not allowed in. The district court, aware Hearst
Newspapers was finalizing a motion to be allowed in the courtroom, proceeded
with the sentencing hearing in a closed courtroom. After the hearing, the
district court denied as moot Hearst Newspapers' motion to open the
proceedings to the public. Hearst Newspapers appealed. The Fifth Circuit did
not determine whether the closure order "was substantively wrong," but it held
the district court did not follow proper procedures in closing the proceeding.
641 F.3d at 187. Noting the sentencing proceeding had already occurred, the
Fifth Circuit vacated the order closing the proceeding but did not vacate the
sentencing order. See id. at 186-87.
The cases cited by the majority involve non-party media entities that were
improperly excluded from proceedings. Here, the State was a party to the
sentence-reduction proceeding. As one Justice aptly observed during oral
argument in this case, "The publicly-elected Solicitor drove this [case] into the
dark." I repeat the common thread in this dissent. By vacating the sentence-
reduction order, the majority rescues the State from a problem the State
created. We should not vacate the sentence-reduction order. The proper
remedy is to (1) vacate the circuit court's decision not to hold a public hearing
and (2) vacate the order sealing the sentence-reduction order. We have already
unanimously voted to do both.
C. Victims' Bill of Rights and Victims' Rights Act
I agree with the majority's conclusions on this point. It is difficult to dispose
of this issue so summarily, as Price's release from custody undoubtedly
reopened many wounds and sufferings of the victim's family. The State should
have notified the family of the State's request that the circuit court reduce
Price's sentence; however, the State's failure to do so, while an extreme
oversight, is not a ground for vacating the sentence-reduction order.
D. Does subsection 16-3-20(A) restrict the circuit court's authority to
reduce Price's sentence under section 17-25-65?
The majority does not reach this issue, as it concludes its analyses of the
previously discussed issues are dispositive. Because I disagree with the
majority on those issues, I will address the interplay between subsection 16-3-
20(A) and section 17-25-65.
Enacted in 2010, section 17-25-65 allows the circuit court to reduce a
defendant's sentence when the defendant provides certain substantial
assistance to the State. The State argues subsection 16-3-20(A) prohibits the
reduction of a murder sentence. I disagree with the State.
Since 1995, subsection 16-3-20(A) has set a thirty-year mandatory minimum
sentence for murder. The State suggests a sentence reduction under section
17-25-65 is a prohibited "early release program" or "credit." These two terms
are noted in the following language from subsection 16-3-20(A):
No person sentenced to a mandatory minimum term of
imprisonment for thirty years to life pursuant to this section
is eligible for parole or any early release program, nor is the
person eligible to receive any work credits, education
credits, good conduct credits, or any other credits that would
reduce the mandatory minimum term of imprisonment for
thirty years to life required by this section.18
The reduction of a sentence contemplated in section 17-25-65 is not an "early
release program" as contemplated in section 24-13-150. The word "program"
18
The 1995 amendment added the words "to life" in the last sentence of this portion
of subsection 16-3-20(A). The addition of those two words is irrelevant to the
question before us.
contemplates a structured system involving supervision of a released prisoner
and monitoring his compliance with the program. Indeed, the General
Assembly has created several true early release programs, all of which require
supervision of the released prisoner by the South Carolina Department of
Probation, Parole, and Pardon Services. See, e.g., S.C. Code Ann. § 24-21-560(2007 & Supp. 2022) (community supervision); S.C. Code Ann. § 24-21-610to -715 (2007 & Supp. 2022) (parole); S.C. Code Ann. § 24-13-710 to -720
(2007 & Supp. 2022) (supervised furlough); S.C. Code Ann. § 24-13-1310 to
-1330 (2007 & Supp. 2022) (shock incarceration). Nor does Price's release fall
within the scope of a work, good time, education, or other credit. Those credits
are set forth in South Carolina Code sections 24-13-210 through -230 (2007 &
Supp. 2022), and they involve SCDC calculating the credits to which an inmate
is entitled. Section 17-25-65 does not.
When the General Assembly enacted section 17-25-65 in 2010, it was
presumed to have knowledge of the thirty-year mandatory minimum sentence
that had been in effect for fifteen years. "A basic presumption exists that the
legislature has knowledge of previous legislation when later statutes are passed
on a related subject." Berkebile v. Outen, 311 S.C. 50, 53, 426 S.E.2d 760, 762
(1993). Section 17-25-65 identifies the specific instances in which a court may
reduce a defendant's prison sentence, and there is no exception for prisoners
convicted of murder. The General Assembly could have easily inserted an
exception for murder when it enacted section 17-25-65 in 2010. It did not do
so.
V.
The majority references "Solicitor Gipson's plan to keep the public from
knowing that Gipson agreed to have this convicted murderer released early."
The majority concludes "[t]he plan worked" until the press got wind of Price's
release, until this Court ordered the unsealing of the sentence-reduction order,
and "until the Attorney General stepped in to demand the law be followed."
The majority suggests Solicitor Gipson executed—with Judge Manning's
help—a secret plan to have Price released early. Even if Solicitor Gipson did
have a secret plan, Solicitor Gipson and the Attorney General play for the same
team. Thus, Solicitor Gipson's secret plan was the Attorney General's secret
plan. This Court should not relieve the State from its obviously poor choice to
concoct a secret plan to seek a reduction for Price.
Finally, the majority contends its decision to vacate the sentence-reduction
order "find[s] ample support in our prior decisions," but it cites only one
decision, State ex rel. McLeod v. County Court of Richland County, 261 S.C.
478, 481-85, 200 S.E.2d 843, 844-46 (1973). The majority accurately
summarizes the basic facts of McLeod, so I will not rehash them here. While
I do not think McLeod is on all fours with this case, I note that in McLeod, we
relied upon our statement of the general rule in State v. Best:
When a trial judge adjourns his court [s]ine die, he loses
jurisdiction of a case finally determined during that term, except
under special circumstances, as where either by consent or
acquiescence of counsel for both sides, or postponing
determination of motions duly entered during the sitting of the
court, or in some cases where supplemental orders germane to and
carrying out the order duly made, and not inconsistent therewith,
may be passed.
257 S.C. 361, 369–70, 186 S.E.2d 272, 276 (1972) (emphasis added) (quoting
Shillito v. City of Spartanburg, 215 S.C. 83, 88, 54 S.E.2d 521, 522 (1949)).
To the extent McLeod does apply in this case, common sense dictates that the
State cannot complain about relief granted by a judge when, as here, the State
sought and obtained that very relief. There is no question the State consented
to and acquiesced in every step of Price's sentence-reduction proceeding. We
should not grant the State relief under these circumstances.
VI. Conclusion
The Attorney General's authority over circuit solicitors extends only to the
supervision of criminal prosecutions. Price's prosecution ended in 2006, and
the Attorney General's supervisory authority ended with it. Even if the
Attorney General has authority to appear in this case, the law simply does not
allow this Court to rescue the State from its own failures. Various procedural
deficiencies, the lack of a hearing, and the circuit court's improper sealing of
the order do not render the order a nullity.
The majority contends "it is the constitutional and statutory duty of this Court
to act." I respectfully disagree. The Court's constitutional and statutory duty
in this case is to exercise restraint and resist the temptation to relieve the State
from the consequences of its own actions.
BEATTY, C.J., concurs.