Earley v. State of South Carolina ( 2008 )

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Supreme Court

Steven Roy Earley, Petitioner,

v.

State of South Carolina, Respondent.

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ON WRIT OF CERTIORARI

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Appeal From Lexington County
Mark H. Westbrook, Circuit Court Judge
Clyde N. Davis, Jr., Post-Conviction Relief Judge

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Memorandum Opinion No. 2008-MO-041
Submitted September 18, 2008 – Filed October 27, 2008

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AFFIRMED

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Appellate Defender Robert M. Pachak, South Carolina Commission on Indigent Defense, of Columbia, for Petitioner.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General Daniel E. Grigg, all of Columbia, for Respondent.

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PER CURIAM:  Steven Roy Earley pled guilty in 2003 to a charge of murder.  The plea judge sentenced Earley to thirty years in prison pursuant to a plea agreement.  Earley did not file a direct appeal.  He subsequently filed a PCR application alleging ineffective assistance of counsel.  Among other things, Earley asserted counsel failed to file an appeal.  The PCR judge denied the application, finding counsel was not ineffective.  This Court granted Earley’s petition for a writ of certiorari and granted him a belated appeal pursuant to White v. State, 263 S.C. 110, 208 S.E.2d 35 (1974). 

Earley has now filed a brief for his belated appeal in which he argues that his guilty plea was not knowingly and voluntarily entered as required by Boykin v. Alabama, 395 U.S. 238 (1969).  Specifically, Earley contends (1) he was not advised that if he were tried by a jury the verdict would have to be unanimous, and (2) the plea in this case was supported by only two pages of facts.

We affirm pursuant to Rule 220(b)(1), SCACR, and the following authorities:  State v. McKinney, 278 S.C. 107, 292 S.E.2d 598 (1982) (holding the unknowing and involuntary nature of a guilty plea cannot be attacked on direct appeal absent a timely objection on this basis at the plea proceeding); McCray v. State, 271 S.C. 185, 188, 246 S.E.2d 230, 231 (1978) (stating, in the context of a belated appeal under White, a “defendant can . . . raise and argue on the ‘belated appeal’ [only] those issues [that] could have been raised and argued on a timely direct appeal”); State v. Lambert, 266 S.C. 574, 579, 225 S.E.2d 340, 342 (1976) (holding a plea judge need not “direct the defendant’s attention to each and every constitutional right and obtain a separate waiver of each” and that “an enumeration of specific rights waived is not required where the record otherwise reveals affirmative awareness of the consequences of a guilty plea”).

AFFIRMED.

TOAL, C.J., WALLER, PLEICONES, BEATTY and KITTREDGE, JJ., concur.