State v. Follin , 352 S.C. 235 ( 2002 )

STILWELL, J.

(Concurring):

I concur in Judge Anderson’s opinion, but write separately to focus on what I consider to be an extremely difficult task faced by an appellate court in passing upon the acceptability of the sentence imposed in this case.

It is an undeniable fact that for generations trial courts have not only been allowed but actually encouraged to consider the entry of a guilty plea as an ameliorating factor in structuring an appropriate sentence. In stark contrast, it is now and has been for many years totally unacceptable to impose a harsher sentence because a defendant demands a jury trial rather than entering a guilty plea. These two concepts are almost irreconcilable.

Here, the sentencing judge made statements that clearly indicated his

motivation for imposing a somewhat harsher sentence upon this defendant than upon other defendants who entered guilty pleas was based upon acceptable considerations. At the same time, the sentencing judge made remarks that can be and have been interpreted as being violative of recent decisions of this court and the supreme court.

The question, then, is which of the two diametrically opposite statements are we to consider as controlling in judging his motivation? Are we to look exclusively at those statements that are unacceptable, disregarding the acceptable, or do we do just the opposite and disregard the unacceptable in favor of the acceptable?

Under the circumstances of this case, perhaps the best thing if not the only thing to do is to disregard the statements altogether or consider them neutral on the issue of his motivation, and determine whether, on the record, the sentence imposed is justified in comparison to the more lenient sentence imposed on other defendants. Using that as the criteria, this sentence is unquestionably justified.