State v. Collins

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Respondent,
v.
Kenneth Strother Collins, Appellant.
Appellate Case No. 2017-002282
Appeal From Oconee County
R. Scott Sprouse, Circuit Court Judge
Unpublished Opinion No. 2020-UP-012
Submitted October 1, 2019 – Filed January 15, 2020
VACATED
Appellate Defender David Alexander, of Columbia, for
Appellant.
Attorney General Alan McCrory Wilson, Deputy
Attorney General Donald J. Zelenka, and Senior
Assistant Deputy Attorney General Melody Jane Brown,
all of Columbia; and Solicitor David Rhys Wagner, Jr.,
of Anderson, all for Respondent.
PER CURIAM: Kenneth Strother Collins appeals his convictions and sentences
of thirty years' imprisonment for murder, a consecutive twenty years' imprisonment
for kidnapping, and a concurrent five years' imprisonment for possession of a
weapon during the commission of a violent crime. On appeal, Collins argues the
trial court erred by improperly sentencing him on his kidnapping conviction
because it also sentenced him for the murder of the same victim. The State argues
this issue is not preserved for this court's review and should be raised in an
application for post-conviction relief. However, because the State concedes the
kidnapping sentence is improper, we find an exceptional circumstance exists
allowing this court to consider the improper sentence, and we vacate the improper
twenty year kidnapping sentence that was imposed consecutively pursuant to Rule
220(b), SCACR, and the following authorities: State v. Vick, 384 S.C. 189, 197,
682 S.E.2d 275, 279 (Ct. App. 2009) ("In criminal cases, an appellate court sits to
review errors of law only. [This court is] bound by the trial court's factual findings
unless they are clearly erroneous." (quoting State v. Wilson, 345 S.C. 1, 5-6, 545
S.E.2d 827, 829 (2001))); S.C. Code Ann. § 16-3-910 (2015) (providing a person
convicted of kidnapping "must be imprisoned for a period not to exceed thirty
years unless sentenced for murder as provided in [s]ection 16-3-20 [of the South
Carolina Code (2015)]." (emphasis added)); State v. Johnston, 333 S.C. 459, 462,
510 S.E.2d 423, 425 (1999) ("[A] challenge to sentencing must be raised at trial, or
the issue will not be preserved for appellate review."); Vick, 384 S.C. at 201, 682
S.E.2d at 281 ("Our courts have long held, where an appellant has been sentenced
for murder of a victim, [section 16-3-910] precludes a sentence for kidnapping of
that victim, and any such sentence should be vacated."); State v. Bonner, 400 S.C.
561, 564, 735 S.E.2d 525, 526 (Ct. App. 2012) ("[A]n exception to the general rule
of issue preservation exists authorizing the appellate court to consider an
unpreserved issue in the interest of judicial economy under appropriate
circumstances."); Vick, 384 S.C. at 203, 682 S.E.2d at 282 ("[B]ecause the State
concedes the kidnapping sentence was erroneously imposed, and in light of the fact
our courts recognize there may be exceptional circumstances allowing the
appellate court to consider an improper sentence even though no challenge was
made to the sentence at trial and have further summarily vacated in matters such as
the one at hand, in the interest of judicial economy we vacate the clearly erroneous
kidnapping sentence."); Bonner, 400 S.C. at 567, 735 S.E.2d at 528 (holding an
exceptional circumstance existed "because the State concede[d] in its brief that the
trial court committed error by imposing an improper sentence").1
1
We find the State's request to vacate and remand the entire sentence for
resentencing is improper because neither party raised any issues relating to
Collins's sentence for murder or his sentence for possession of a weapon during the
commission of a violent crime or argued the sentences were improper. Therefore,
VACATED.2
LOCKEMY, C.J., and KONDUROS and HILL, JJ., concur.
Collins's thirty year sentence for murder and concurrent five year sentence for
possession of a weapon during the commission of a violent crime stand.
2
We decide this case without oral argument pursuant to Rule 215, SCACR.