Harres v. Leeke

Lewis, Chief Justice:

Respondents William Thomas Harres, Harry Moses, and Roger E. Lanford pled guilty to exhibiting obscene films and were sentenced. They were subsequently granted post-conviction relief, and the State appeals. We reverse.

Respondents, represented by counsel retained for them by their employer, appeared during the second week of General Sessions Court in Spartanburg, presided over by Judge Tim-merman, and pled guilty to several counts of exhibiting obscene films. The prior week of court was presided over by Judge Moss (former Chief Justice of this Court) who was referred to by counsel as the “hanging Judge”. It is clear that respondents, cognizant of the certainty of having to face sentence and as a calculated trial strategy, entered their pleas during the second week before Judge Timmerman in order to avoid going before Judge Moss during the first week of court. All testified that they thought Judge Timmerman would suspend any sentence imposed and place them on probation. Judge Timmerman surprised respondents and sentenced them to prison terms. They now seek to have their pleas of guilty set aside because, they say, the pleas were not voluntarily and knowingly entered.

The lower court proposes to allow respondents another chance to again go “judge shopping” to obtain probationary sentences, upon the grounds that (1) the guilty pleas were not voluntarily and knowingly entered; (2) respondents were allegedly prosecuted and sentenced under Sections 16-15-160 and 16-15-220, when these sections had been repealed by Act No. 495 of the 1978 Acts of the General Assembly (now appearing as Section 16-15-310, et seq; Supplement to the Code), and (3) respondents received ineffective assistance of counsel.

The record shows conclusively that the pleas were voluntarily and knowingly entered. There is undisputed evidence that each respondent knew what the charges were, acknowledged at trial and in the post-conviction proceedings that they were guilty, and knew that they could have had a trial as to their guilt if they desired it. These respondents recognized, as their trial counsel indicated, that they had no defense and their only course was to find the most lenient judge available.

The trial judge apparently considered that he was bound by the extent of the inquiries made by the judge at the time of the pleas. He was in error. Writing in Lambert v. State, 260 S. C. 617, 198 S. E. (2d) 118 (1973), Justice (now Chief Justice) Littlejohn stated the applicable rule:

Under Vickery v. State, 258 S. C. 33, 186 S. E. (2d) 827 (1972), the voluntariness of a guilty pleas is not determined by an examination of the specific inquiry made by the sentencing judge alone, but is determined from both the record made at the time of the entry of the guilty plea and the record of the post-conviction hearing.

The trial judge elected to disregard the testimony of all three respondents, at the post-conviction hearing, to the effect that their guilty pleas were voluntary. Respondent Lan-ford even concluded his testimony with the statement that he, in any event, would have pled guilty. In Whetsell v. State, 276 S. C. 295, 277 S. E. (2d) 891 (1981), we denied post-conviction relief in part because the respondents at hearing “stated they would plead guilty again if granted a new trial.”

The post-conviction hearing shows conclusively that the pleas were knowingly and voluntarily entered.

The contentions relative to the statutes under which respondents were tried are without merit. The actual indictments are framed in correct and current statutory language, and none of the respondents alleged excessive sentences in their Applications for Post-Conviction relief.

Respondents’ claim of ineffective assistance of counsel is difficult to understand in view of the stipulationfor the record that this is not an issue in the case.

The judgment is accordingly reversed and the sentences of respondents reinstated.

Littlejohn and Gregory, JJ, concur.