State v. Morris ( 2004 )

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 Court of Appeals

The State, Respondent,

v.

Bruce S. Morris, Appellant.

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Appeal From Spartanburg County
Larry R. Patterson Circuit Court Judge

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Unpublished Opinion No. 2004-UP-318
Submitted March 19, 2004 – Filed May 13, 2004   

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AFFIRMED

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Assistant Appellate Defender Aileen P. Clare, Office of Appellate Defense, of Columbia, for Appellant.

Legal Counsel J. Benjamin Aplin, South Carolina Department of Probation, Parole and Pardon Services, of Columbia, for Respondent.

PER CURIAM:  Bruce S. Morris appeals, contending the sentencing court relied on invalid considerations in revoking his probation for breach of the conditions of probation.  We affirm.¹

BACKGROUND

Following Morris’ pleas on February 28, 2002, to two separate indictments for financial identity fraud, the Honorable Gary E. Clary sentenced Morris to two concurrent ten-year terms of imprisonment, suspended the sentences, and placed him on probation for five years.  Several months later, in October 2002, Morris appeared before the Honorable John Few, charged with violating the terms of his probation.  Judge Few found him in violation of several conditions and special conditions, but continued Morris’ probation as long as he either maintained full-time employment or was a full-time college student.

On May 30, 2003, Morris appeared before the Honorable Larry R. Patterson, again charged with violating the conditions of his probation. More specifically, the probation citations charged him with (1) failing to report as instructed; (2) failing to pay supervision fees arrearage; (3) failing to pay court-ordered costs and assessments arrearage; (4) failing to pay restitution arrearage; and (5) failing to follow the advice and instruction of the supervising agent.  Judge Patterson revoked Morris’ probation and reinstated the original ten-year sentences.  He later denied Morris’ motion to reconsider the revocation.

FACTS

At the revocation hearing, the probation officer listed the conditions of Morris’ probation that he allegedly violated. Among other things, he reported that Morris had paid “nine hundred dollars on restitution to date, leaving him with [an] arrearage of $465.00, and a balance of $6,680.97.”  Afterward, Jack Millwood, the victim of one of Morris’ financial identity fraud transactions for which Morris was convicted, addressed Judge Patterson and expressed dissatisfaction with the criminal justice system and the manner in which it had handled the case.  The victim in the other case, Joseph A. Nyitray, did not attend the hearing. 

For his part, Morris’ attorney related Morris had a full-time job and had recently paid $1,500 in college tuition. 

At the end of the hearing, Judge Patterson said, “[Morris] should of [sic] paid this man his money that he stole from him rather than paying the college tuition.  I’m revoking it in full.” Morris thereafter moved Judge Patterson to reconsider his action, claiming “significant factual and legal matters” either not considered or not fully considered by him warranted the revocation order being vacated or modified.

A subsequent hearing on the motion to reconsider left the revocation intact.  Judge Patterson said he had based the order of revocation on Morris’ failure to report and his choice to pay college tuition rather than satisfy his restitution obligation.2

LAW/ANALYSIS

The decision to revoke probation is addressed to the sound discretion of the sentencing judge.  State v. Hamilton, 333 S.C. 642, 511 S.E.2d 94 (Ct. App. 1999). 

We cannot say, based on the record before us, that the sentencing judge abused his discretion in this instance.  Morris’ basic complaint on appeal is that he “owed nothing to . . . Millwood at the time of his revocation hearing.” Nothing in the record, however, supports this assertion other than defense counsel’s own statement, which he made in argument at the sentence reconsideration hearing, that “the court may have based its decision, in whole or in part, on a mistaken belief that [Millwood] . . . was, in fact, the victim who was aggrieved by the alleged failure to pay restitution as ordered.”  Certainly, no evidence supports it.  Cf. McManus v. Bank of Greenwood, 171 S.C. 84, 171 S.E. 473 (1933) (stating a court cannot consider statements of fact appearing only in argument of counsel).

Moreover, the sentencing judge’s statement that “[Morris] should have paid this man his money that he stole from him rather than paying the college tuition” did not identify Millwood as the victim aggrieved by Morris’ failure to pay restitution and could just as well have referred to Nyitray.  As we read the sentencing judge’s remarks, he simply expressed concern that Morris chose to pay his college tuition rather than pay toward the amount he owed in restitution, a sum that totaled $6,680.97 on the date of the probation revocation hearing and of which sum he owed $465.00 in arrears.

We do not reach the issue of whether the sentencing judge’s finding that Morris had failed to report as instructed, a finding Morris does not challenge on appeal, alone would support the sentencing judge’s decision to revoke Morris’ probation.         

AFFIRMED.

GOOLSBY, HOWARD, and BEATTY, JJ., concur.

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¹ Because oral argument would not aid the court in resolving the issues on appeal, we decide this case without oral argument pursuant to Rules 215 and 220(b)(2), SCACR.

2 The sentencing judge stated at the hearing on the motion to reconsider, “I . . . found [a] failure to pay his restitution . . .  and he failed to report.”