Petition for Writ of Certiorari — South Carolina v. Griffin

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

STATE OF SOUTH CAROLINA,

Petitioner

versus

ROGER D. GRIFFIN,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

SOUTH CAROLINA SUPREME COURT

PETITION FOR WRIT OF CERTIORARI

T. TRAVIS MEDLOCK

Attorney General

JAMES. PATRICK HUDSON

Chief Deputy Attorney General

Counsel of Record

CARL W. STENT

Staff Attorney

Post Office Box 11549

Columbia, SC 29211

(803) 734-3645

CARL N. LUNDBERG

SOUTH CAROLINA DEPARTMENT OF

PROBATION, PAROLE AND PARDON

SERVICES

ATTORNEYS FOR PETITIONER

QUESTION PRESENTED FOR REVIEW

IS THE 1986 STATUTORY AMENDMENT TO THE SOUTH

CAROLINA CODE, WHICH INCREASES THE TIME

BETWEEN PAROLE RECONSIDERATION HEARINGS FROM

ONE YEAR TO TWO YEARS FOR OFFENDEk‘ CONVICT-

ED OF VIOLENT CRIME, A CHANGE VIOLATIVE OF

THE EX POST FACTO CLAUSES?

ee

TABLE OF CONTENTS

~ Page

QUESTION PRESENTED FOR REVIEW ..... i

TABLE OF AUTHORITIES ........, iii

OPINIONS DELIVERED IN THE

CASE BY OTHER COURTS Sr cae |

STATEMENT OF THE GROUNDS ON WHICh THE

JURISDICTION OF THE UNITED STATES

SUPREME COURT IS INVOKED ....... 1

CONSTITUTIONAL PROVISIONS AND

STATE STATUTES INVOLVED IN THE CASE . . 3

STATEMENT OF THE CASE ......... 5

ARGUMENT FOR ALLOWANCE OF THE WRIT .. 10

D~~~~—~—~~Lch 76) 6 «6 « «© ¢ 6 © ¢ 6 « « «- a

i aoe s « os « « ««¢ 6 « « £2

ii

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TABLE OF AUTHORITIES

Cases Page

Akins v. Snow, 922 F.2d 1558

fabem Gars B9PT) « 2 we ce ow ew oh we CG

Beazell v. Ohio, 269 U.S. 167,

Rrk €89a9) «© «© © © we oe @ «© 6 ew) «6B U9

Calder v. Buli, 3 Dall. 386 (1798- .. 14

Collins v. Youngblood, 497 U.S. 37, 110

B-Ce 2745, atam (1986) . « « « BS, 23

Dobbert v. Florida, 432 U.S. 282,

\ |) BO) oy s ee ee ee er ee ee

Greenholtz v. Inmates of Nebraska

Penal and Correctional Complex,

$42 U.8. 32 (A979) «© sev wo oe sns

Hopt v. Utah, 110 U.S. 574,

590 (1904) ..«. +6 2« «© © © © «© © «© «© AG

Malloy v. South Carolina, 237 U.S.

| Pe | ae: tS ee ee ee ee ee ee ee

Miller v. Florida, 482 U.S. 423

Fawere «0 6 ee ee 6 st el ew we ss 8 UR

Portley v. Grossman, 444 U.S. 131l,

ko Oe! | eee ee ee ee ee

Roller v. Cavanaugh, 984 F.2d 120

[Gum Geeks Aeeee « 6 8 8 ee 5

U.S. v. Munsingqwear, Inc., 340 U.S. 36

(39ee) « 6 « 2 se 46 0 0 ee ee lh }lhlhCU

iii

OPINIONS DELIVERED IN THE

CASE BY OTHER COURTS

Final Decree of the South Carolina

Supreme Court denying the State's

Petition for Rehearing, dated

August 17, 1993.

Opinion of the South Carolina

Supreme Court (No. 23909)

affirming the PCR court's order

granting Griffin's application for

post-conviction relief, filed July

19, 1993.

Opinion of the Sixteenth Judicial

Circuit of South Carolina

April 0, 1992.

iv

STATEMENT OF THE GROUNDS ON WHICH THE

JURISDICTION OF THE UNITED STATES

SUPREME COURT IS INVOKED

Pursuant to the requirements set forth

in Supreme Court Rule 14.1(e), Petitioner,

the State of South Carolina, shows the

following:

(i)

(ii)

The date of entry of the judgment

of the South Carolina Supreme

court for which the Petitioner

seeks review is July 19, 1993. It

affirms the Post-Conviction Relief

court's order granting Respon-

dent's application for relief.

The date of the South Carolina Supreme

court's order denying Petitioner's

petition for a rehearing of the case is

August 17, 1993.

(iii)Not applicable.

(iv)

Jurisdiction is conferred on the United

States Supreme Court by virtue of 28

U.S.C. §1257(a). This statute allows

this Court to review, upon petition for

writ of certiorari, final judgments

rendered by the highest court of a

state in which a decision could be had,

where the validity of a state statute

is being drawn in question on the

ground of its being repugné it to the

Constitution. In this matter, South

Carolina Code §§16-1-60 and 24-21-645,

are being drawn in question on the

ground that their application to Re-

spondent Griffin violates the Ex Post

Facto Clauses.

CONSTITUTIONAL PROVISIONS AND

STATE STATUTES INVOLVED IN THE CASE

U.S. Const. art. I, $9, cl. 3:

No. . .ex post facto law shall be

——

passed.

U.S. Const. art. me wae, Cl. is

No state shall. .. pass any

ex post facto law.

S.C. Code Ann. §16-1-60 (1986):

For purposes of definition under

South Carolina law a violent crime

includes. .. voluntary mans laugh-

ter.

S.C. Code Ann. §24-21-610 (1981), see Appen-

dix F.

S.C. Code Ann. §24-21-620 (1981), see Appen-

dix G.

S.C. Code Ann. §24-21-645 (1986):

[U]pon a negative determination of

parole, prisoners in confinement for a

violent crime as defined in Section 16-

1-60 must have their cases reviewed

every two years for the pu: ose of a

determination of parole.

S.C. Code Ann. §24-21-650 (1986):

[U]pon a negative determination of

parole, prisoners in confinement for a

violent crime as defined in Section 16-

1-60 must have their cases reviewed

every two years for the purpose of a

determination of parole.

Sections 8, 266, and 269 of South Carolina

Act No. 184 of 1993, see Appendix K.

STATEMENT OF THE CASE

This case raises the same ex post facto

question as was presented in Roller v.

Cavanaugh, 984 F.2d 120 (4th Cir. 1993),

cert granted May 25, 1993, No. 92-1510, and

argued before this Court on Ncvember 8,

1993. The question there, as here, asks

this: Is the 1986 statutory amendment to

the South Carolina Code, which increases the

time between parole reconsideration hearings

from one to two years for offenders convict-

ed of a violent crime, a violation of the

constitutional prohibition against ex post

facto laws? In South Carolina parole is not

a matter of right, but a matter of the

discretion of the State Board of Probation,

Parole and Pardon Services.

In this case, the Respondent, Griffin,

was indicted for murder in April 1984. On

May 21, 1984, Griffin appeared before the

court of general sessions and entered a plea

of guilty to voluntary manslaughter. After

making a thorough inquiry into the voluntar-

iness of Griffin's plea, the court accepted

it and sentenced Griffin to thirty years.

Griffin did not appeal his guilty plea or

sentence.

On July 1, 1991, Griffin filed an

application for Post-Conviction Relief

(PCR), pursuant to S.C. Code Ann. §17-27-10

et seq. In his application, Griffin al-

leged, among other things, that the State

had, in violation of the Ex Post Facto

Clauses, applied to him the 1986 law that

increased the period between parole hearings

from one to two years. The PCR judge found

that Griffin relied upon the then-existing

annual parole review when he decided to

plead guilty, and that the application of

the challenged statute to him violated the

constitutional prohibition against ex post

facto laws. The State then appealed to the

South Carolina Supreme Court from the order

ae

granting Griffin's application for post-

conviction relief.

On appeal, the South Carolina Supreme

Court ruled in Griffin's favor on the ex

post facto questions. The Court's decision

was based on the Fourth Circuit's ‘Olding in

Roller _v. Cavanaugh, supra, and overruled

its own well-established precedent, State v.

Gunter, 298 S.C. 113, 378 S.E.2d 443 (1989).

The court did not take notice of the fact

that the State's petition for a writ of

certiorari in the Roller case had been

granted. The South Carolina Supreme Court

appears to have overlooked the fact that the

last word on Roller has yet to be spoken.

On this basis, the State petitioned for a

re-hearing of the matter. This petition,

however, was summarily denied on August 17,

1993. From that final decision of the South

Carolina Supreme Court, the State now peti-

tions for a writ of certiorari to have the

case reviewed.

A word more on the facts of this case

is necessary to set them properly in the

context of the ex post facto question pre-

sented here. When Griffin committed his

crime, the state procedural law governing

the rescheduling of parole hearin_.s follow-

ing a rejection fixed the waiting period at

one year. S.C. Code Ann. $24-21-645. In

1986, S.C. Code Ann. §16-1-60 was enacted.

This section enumerated those crimes deemed

to be violent and included in that enumera-

tion the crime of voluntary manslaughter,

the crime to which Griffin pled guilty. In

1986 §24-21-645 was amended increasing the

period before Griffin could be again recon-

Sidered for parole from one year to two

years. The two-year wait for parole recon-

Sideration following a rejection was thus

applied to Griffin. That, however, was all

that changed Griffin's circumstances in any

manner. The punishment for voluntary man-

Slaughter remained exactly what it had been

when Griffin committed that crime. On

January 1, 1994, two changes in the law

concerning parole go into effect. These

changes are the result of the passage of

S.C. Act No. 184 of 1993. Section 8 of Act

No. 184 amends S.C. Code Ann. § §-1-60 by

creating a subsection (8B). It specifies

that for a person to be considered guilty of

a violent crime, the offense must be defined

as a violent crime pursuant to subsection

(A) at the time of the commission of the

crime.

Section 266 of Act 184 specifies that

"[t]he provisions of subsection 16-1-60(B)

apply retroactively to all persons convicted

under the laws of the State." (Emphasis

added).

ARGUMENT FOR ALLOWANCE OF THE WRIT

THE 1986 STATUTORY AMENDMENT TO THE SOUTH

CAROLINA CODE, WHICH INCREASES THE TIME

BETWEEN PAROLE RECONSIDERATION HEARINGS FROM

ONE YEAR TO TWO YEARS FOR OFFENDER ‘ CONVICT-

ED OF VIOLENT CRIME, DOES NOT VIOLATE THE EX

POST FACTO CLAUSES.

The ex post facto question is not as

Simple as the lower court has made it out to

be. Relying entirely and, we think, wrong-

ly, on the Fourth Circuit's decision in

Roller _v. Cavanaugh, 984 F.2d 120 (1993),

the Supreme Court of South Carolina wrongly

equates parole eligibility in South Carolina

with parole reconsideration. Once this

equation is made, it is but a short step to

the conclusion that the statutory change in

question violates the ex post facto prohibi-

tion. It is a short step because the equa-

tion, albeit an erroneous one, puts the

question squarely under the well-established

10

rule that parole eligibility is a substan-

tive matter and attaches to the punishment.

Change parole eligibility retroactively and

to the prisoner's disadvantage, and the

prohibition against ex post facto laws is

implicated.

However, the point is wholly irrelevant

to the question here. In South Carolina, a

prisoner becomes eligible for parole on his

sentence only once and remains eligible

thereafter absent some intervening occur-

rence not relevant to this case. There-

after, violent offenders are considered for

parole every two years. Griffin's date of

eligibility for parole has not changed; that

date was fixed from the start. See S.C.

Code Ann. §24-21-610. What has changed is

the procedure governing the interval between

parole hearings after a rejection. For

Griffin that interval used to be one year;

now it is two years. This is all that has

been changed. No punishment has been added

11

to Griffin's original sentence after the

fact. His sentence has not been lengthened.

His parole eligibility has not been revoked

‘

Or altered in any way. No "gain time"

credits have been lost retroactively. As

the Supreme Court of South Carolin- correct-

ly found in Gunter v. State, 298 S.C. 113,

378 S.E.2d 443 (1989), “the standards gov-

erning petitioner's parole eligibility have

not been changed. Instead, only the fre-

quency with which petitioner can be recon-

sidered for parole has been altered." The

only change in Griffin's situation is just

this and nothing more -- a procedural change

determining how frequently he will be recon-

sidered for parole. Gunter, though correct-

ly decided, was overruled by the court in

the decision Petitioner is seeking here to

have reviewed, Griffin v. State, Op. No.

23909.

Though this change lengthens the period

for reconsideration after denial of parole,

12

it does not offend the Ex Post Facto Claus-

es. Not all retroactive changes offend, a

point well-established in the precedent of

this Court:

[T]he prohibition of ex post

facto laws does not extend to

every change of law that "may

work to the disadvantage of a

defendant." It is intended

to secure “substantial per-

sonal rights" from retroac-

tive deprivation and does not

“limit the legislative con-

trol of remedies and modes of

procedure which do not affect

matters of substance."

Portley v. Grossman, 444 U.S. 1311, 1312

(1980), quoting Dobbert v. Florida, 432 U.S.

282, 293 (1977). See also, Miller v. Flori-

da, 482 U.S. 423 (1987); Beazell v. Ohio,

269 U.S. 167, 171 (1925); Hopt v. Utah, 110

U.S. 574, 590 (1884).

This Court reminds us in Collins v.

Youngblood, 497 U.S. 37, 110 S.Ct 2715

(1990), that we must go back to the begin-

nings of ex post facto analysis, to clear

the books of much of the confusion that has

arisen in recent years. In Beazell v. Ohio,

13

269 U.S. 167 (1925), this Court confidently

summarized the general rule of ex post facto

analysis, which had its beginning in Calder

v. Bull, 3 Dall. 386 (1798):

It is settled, by decisions

of this Court so well known

that their citation m-, be

dispensed with, that any sta-

tute which punishes as a

crime an act previously com-

mitted, which was innocent

when done; which makes more

burdensome the punishment for

a crime, after its commis-

Sion, or which deprives one

charged with crime of any

defense available according

to law at the time when the

act was committed, is prohib-

ited as ex post facto [cita-

tions omitted].

Collins, which goes back to Calder via

Beazell, reminds us of the Court's own

original understanding of the Ex Post Facto

Clause. That original understanding rejects

the notion -- now increasingly current in

some circuits, and among them, the Fourth

Circuit, -- that any change which alters the

Situation of a party to his disadvantage

violates the Ex Post Facto Clauses. Collins

14

emphasizes, in both its majority and concur-

ring opinions, that "the Ex Post Facto

Clause ‘was intended to secure substantial

personal rights against arbitrary and op-

pressive legislation.'" 497 U.S. at ’

110 S.Ct. at 2721, quoting Mallo. v. South

Carolina, 237 U.S. 180, 183 (1915). See

also 497 U.S. at 4 £40 §.Ct. at 2727.

Just what alterations of procedure will be

held to be of sufficient moment to trans-

gress the constitutional prohibition "cannot

be embraced within a formula or stated in a

general proposition. The distinction is one

of degree." Collins, 497 U.S. at __, 110

S.Ct. at 2727, quoting Beazell.

The South Carolina Supreme Court's

reasoning leaves no room for case-by-case

analysis of ex post facto problems. The

state court's analysis reduces a}l levels of

factual complexity to the lowest common

denominator of simplicity: all changes in

the law which operate retroactively to the

15

disadvantage of the convicted criminal, no

matter how slight, violate the prohibition

against ex post facto laws. The lower court

has created a simplistic "bright line" rule

for analysis of complex constitutional

issues. This is the inescapable ii plication

of the court's reasoning when it refuses to

recognize the distinction between the facts

presented here and the facts presented in

Akins v. Snow, 922 F.2d 1558 (llth Cir.

1991), a case upon which the court, in its

reliance on the Fourth Circuit's decision in

Roller, seems to place great weight.

This case is distinct from Akins, and

the distinction is based on an important

matter of substance and degree, one which

this Court should recognize under Collins v.

Youngblood. As a matter of law and fact,

the situation presented in Akins is vastly

different from the situation here. In

Akins, the interval between parole reconsid-

eration hearings after a denial was in-

16

creased from one year to eight years. This

was even longer than it took to become

eligible for parole in the first instance,

which was seven years in Akins' case. The

Eleventh Circuit equated the period between

parole hearings with parole e igibility

itself. It did so on the basis of its

finding that the Georgia legislature "con-

Siders a parole reconsideration hearing an

essential and important part of parole

eligibility." 922 F.2d at 1562. (At this

point, it is important to emphasize, once

again, that in South Carolina parole eligi-

bility and parole reconsideration are statu-

torily two different things, separate and

distinct.) It was thus easy for the Akins

court to conclude that the change increased

the punishment retroactively and therefore

violated the prohibition against ex post

facto laws.

South Carolina has more freedom than

Georgia to experiment with changes in parole

17

reconsideration, because South Carolina's

parole laws do not make parole reconsidera-

tion an integral or essential part of parole

eligibility, as do Georgia's parole laws.

South Carolina should not lose its legiti-

mate freedom to experiment with .¢s parole

System in the way that it has distinguished

between parole reconsideration hearings for

violent and non-violent offenders. South

Carolina will lose a large part of that

legitimate freedom to experiment if it is

not given the chance to Challenge the Fourth

Circuit's opinion. This Court has well

recognized that the several states should be

encouraged to develop their own parole

Systems and be allowed to experiment with

ways of improving those parole systems.

Greenholtz v. Inmates of Nebraska Penal and

Correctional Complex, 442 U.S. 1 (1979).

The Fourth Circuit's approach to ex post

facto analysis, as evinced here, undermines

this Court's wise concern for the right of

18

every state to fashion its own parole sys-

tem, leaving to each state as much freedom

as possible-under the federal constitution.

Important issues of federalism are implicat-

ed by reading the Ex Post Facto Clauses to

shackle the State to the past and , Tevent it

from making changes necessary to meet new

challenges. The Court should grant South

Carolina's petition and examine the lower

court's ex post facto analysis in this case.

We think that the Court will find that on

this question the lower court is indeed very

far out of line with the pronouncements of

this Court. Even if Griffin were successful

in having yearly parole reconsideration

hearings, any real benefit to him is specu-

lative. Merely granting hearings more

frequently is no assurance that Griffin will

be released from confinement any earlier

than he would otherwise have been released.

Indeed this Court is powerless to redress

Griffin's true grievance which is his con-

19

-

finement. Issues of standing exist which

this Court should examine in this factual

context.

Before concluding, a brief word on

mootness. Though counsel for the State

during the oral argument before -4is Court

on Roller represented that the effect of

these changes may be to require yearly

parole reconsideration hearings for those,

like Respondent Griffin, convicted of vio-

lent crimes, no official interpretation of

these provisions has been promulgated ~-or

applied, nor, of course, has any court,

trial or appellate, reviewed or decided on

Respondent's entitlement to yearly parole

reconsideration hearings. In light of

uncertainty as to the effect of these recent

amendments, and the fact that they are

voluntary amendments of the State legisla-

ture, amendments that they are free to

rescind or change again, this case is not

thereby rendered moot. However, should this

20

OO

ee a

Court rule that the instant case is moot,

this Court's reasoning in U.S. v. Munsingwe-

ar, Inc., 340 U.S. 36 (1950) urges vacation

of the lower court opinion.

CONCLUSION

If allowed to stand, the low-r court's

opinion will force South Carolina to re-

structure the entire process for scheduling

and hearing parole reconsiderations on all

of its most serious, violent offenders who

are in a position similar to that of Roger

D. Griffin.

The lower court's opinion has another

bad effect. It discourages states from

engaging in fair and wise experimentation

with their parole procedures for fear of

violating the Ex Post Facto Clauses. South

Carolina has had its parole rescheduling

procedure in place since 1986, and it has

worked well over the years proving itself to

be fair and efficient. Non-violent offend-

ers, because they are less dangerous and may

21

7

j

g

i

86 ish eine he

have shorter sentences, come up for parole

reconsideration every year; violent offend-

ers, because they are more dangerous and

usually have longer sentences, are reconsid-

ered every two years. This is a process

based on good sense, fairness, and wide

experience with both success and failure.

South Carolina asks to be heard.

T. TRAVIS MEDLOCK

Attorney General

JAMES PATRICK HUDSON

Chief Deputy Attorney General

Counsel of Record

CARL W. STENT

Staff Attorney

CARL N. LUNDBERG

Chief Legal Counsel

SOUTH CAROLINA DEPARTMENT OF

PROBATION, PAROLE AND PARDON

SERVICES

/

BY: '.-/Zere., Vs OE aa

ATTORNEYS FOR PETITIONER

22

APPENDIX

; Opinion of the South Carolina

3 Supreme Court (No. 23909) affirm-

ing the PCR court's order granting

: Griffin's application for post-

conviction relief, filed July 19,

1993 ee ae ee er App. A

Opinion of the Sixteenth Judicial

Circuit of South Carolina dated

MG) Bey 2500 & s&s + ee oO ©

Final Decree of the South Carolina

Supreme Court denying the State's

Petition for Rehearing, dated

magaese 17, 1995 «© « 6 tl elt CUR. CC

Opinion of the Fourth Circuit

Court of Appeals in Roller v.

Cavanaugh, 984 F.2d 120 (1993),

cert. granted May 25, 1993 .. App. D

Opinion of the South Carolina

Supreme Court in Gunter v. State,

296 8§.C. 113, 378 3.8.4a0 443

(1989), filed March 6, 1989 . App. E

Parole eligibility statute in

1982. Codified as §.C. Code Ann.

See es ese theses) + tw lle se FP

Parole rescheduling statute in

1982. Codified as §.C. Code Ann.

$24-21-620 (1981) ...... App. G

Parole rescheduling statute in

1986. Codified as S.C. Code Ann.

§24-21-645 (1986) ...... App. H

23

iii

ei ede

let

OETA DEE 26 5. vee olen A oe tle eb ee aischicahdl ens

SE eS A OP) Ara) tls de

Parole rescheduling statute in

1986. Codified as S.C. Code Ann.

$24-21-650 (1966) ..... . App.

Violent crime classification stat-

ute in 1986. Codified as S.C.

Code Ann. §16-1-60 (1986) .. App.

Violent crime classification stat-

ute in 1993, effective 1994.

Sections 8, 266, and 269 of ‘outh

Carolina Act No. 184 of 1993.

Codified in part as S.C. Code Ann.

We S) 5 lg tw tl ltl App.

24

SF ne ee ee ee ee

THE STATE OF SOUTH CAROLINA

In the Supreme Court

Roger D. Griffin, Respondent,

Ve

State of South Carolina, Petitioner.

Se Ry

Appeal From York County

John C. Hayes, III, Judge

Opinion No. 23909

Submitted April 20, 1993 -

/ Filed July 19, 1993

AFFIRMED

Attorney General T. Travis Medlock, Chief !

~ + cabot Aaa eid tat ciate

Deputy Attorney General Joseph D. Shine and

Assistant Attorneys General Delbert H.

Singleton, Jr. and Lisa Godwin Jefferson,

all of Columbia, for Petitioner.

Assistant Appellate Defender Robert M.

Pachak, of SC Office of Appellate Defense,

of Columbia, for Respondent.

EE an en [. ie

APPENDIX A - 1

TOAL, A.J.: The State appeals from an

order granting Respondent's application for

post-conviction relief. We AFFIRM.

Facts

The Respondent, Griffin, wa: indicted

for murder in April 1984. On May 21, 1984,

Griffin appeared before the court and en-

tered a plea of guilty to voluntary man-

Slaughter. Prior to the acceptance of the

plea, the trial judge conducted a lengthy

colloquy to determine the voluntariness of

the plea. At the conclusion of the judge's

questioning, the plea was accepted and

Griffin was sentenced to thirty years im-

prisonment. Griffin did not appeal his

guilty plea or sentence.

On July 1, 1991, Griffin filed an

Application for Post-Conviction Relief. In

his application, Griffin alleged, inter

alia, that the State's application of the

Omnibus Crime Bill, specifically the change

APPENDIX A - 2

from an annual review for parole eligibility

to a biannual review, violated the ex post

facto clause of the South Carolina and

United States Constitutions. The PCR judge

found that Griffin relied upon the annual

review for parole eligibility in his deci-

sion to plead guilty, and that Griffin's

constitutional rights under the ex post

facto clause were violated. We granted the

State's petition for certiorari to review

the PCR court's order.

Law/Analysis

The State raises two issues on appeal.

The first and pivotal issue is whether the

PCR judge erred in ruling that Griffin

suffered a violation of the ex post facto

clause. The second issue is whether the PCR

judge erred in finding that Griffin's plea

of guilty to voluntary manslaughter was not

knowingly, voluntarily, and intelligently

entered.

APPENDIX A - 3

- eA hho © oP mpl: Ae Ra,

We addressed this first issue in Gunter

v. State, 298 S.C. 113, 378 S.E.2d 443

(1989). In Gunter, the applicant for post-

conviction relief raised an ex post facto

challenge to the change in parole eligibili-

ty review. Id. After examining *he ques -

tion, we held that:

the standards governing peti-

tioner's parole eligibility have

not. . . changed. Instead, only

the frequency with which petition-

er can be reconsidered for parole

has been altered. We find no ex

post facto violation in the appli-

cation of the questioned statute

to petitioner.

Id. at 115-16, 378 S.E.2d at 444.

The PCR court distinguished Gunter on

the grounds that Griffin had pled guilty and

that Gunter was convicted at trial. This is

not completely correct. While it is true

Gunter was tried, convicted, and sentenced

to thirty years for voluntary manslaughter,

we reversed the conviction in State v.

Gunter, 286 S.C. 556, 335 S.E.2d 445 (1985).

On remand, Gunter pled guilty to voluntary

APPENDIX A - 4

manslaughter and received a thirteen-year

sentence. Our PCR holding in Gunter v.

State, 298 S.C. 113, 378 S.E.2d 443 (1989),

was rendered while Gunter was serving the

thirteen year sentence as a result of his

plea of guilty.

Since Gunter, we have held that "[t]he

ex post facto clause protects against retro-

active legislative provisions which are

disadvantageous to the offender. A mere

procedural change in law, not increasing

punishment or changing elements of the

offense, does not result in an ex post facto

violation." Elmore v. State, 305 s.C. 456,

459, 409 S.E.2d 397, 399 (1991); see also

Miller v. Florida, 482 U.S. 423, 107 S.Ct.

2446, 96 L.Ed.2d 351 (1987).

Respondent cites the recent Fourth

Circuit decision in Roller v. Cavanaugh, 984

F.2d 120 (1993). In Roller, the Fourth

Circuit Court of Appeals disregarded our

decision in Gunter, and held that the statu-

APPENDIX A - 5

tory amendment for review of parole eligi-

bility was a violation of the ex post facto

Clause. The Fourth Circuit relied on Akins

v. Snow, 922 F.2d 1558 (llth Cir. 1991),

which found an ex post facto violation ina

Georgia statute that decreased the frequency

of parole hearings from once a year to once

every eight years. Obviously the Georgia

Statute was an example of how a procedural

change could be expanded to have a substan-

tive effect.

The Fourth Circuit's analysis is com-

pelling. It is difficult to determine where

the difference lies between a review once

every two years and once every eight years.

This gray area tortures the ex post facto

analysis between a change in the standards

for review and a procedural change in tim-

ing. The Akins court was faced with a

statute that provided for a procedural

change which effectively changed the stan-

dards for parole. We must now acknowledge

APPENDIX A - 6

that where a procedural rule is so overly

intrusive that it substantively effects the

review standard, it then becomes an ex post

facto violation. In adopting the Fourth

Circuit's holding in Roller, we overrule our

holding in Gunter, 298 S.C. 113, ‘78 S.E.2d

443 (1989).

In light of our holding today, we need

not reach the second issue. Accordingly,

for the reasons stated, the decision of the

PCR court is AFFIRMED.

HARWELL, C.J., CHANDLER, FINNEY AND

MOORE, JJ., concur.

APPENDIX A - 7

STATE OF SOUTH CAROLINA )

) IN THE COURT OF

COUNTY OF YORK ) COMMON PLEAS

Roger D. Griffin, 122723,)

Applicant, ;

“7a ORDER

State of South Carolina, ‘

Respondent, )

This is a post conviction matter. The

Applicant is presently confined in the Perry

Correctional Institution of the South Caro-

lina Department of Corrections pursuant to

orders of commitment from the Clerk of Court

for York County. The Applicant was indicted

at the April, 1984, term of York County

General Sessions Court and charged with

murder. He was represented by Wade Weather-

ford, Esquire. On May 21, 1984, Applicant

plead guilty to voluntary manslaughter, and

was sentenced by the Honorable Robert L.

McFadden to a thirty year sentence. Appli-

APPENDIX B - 1

cant did not appeai his guilty plea or sentence.

Applicant has filed for post-conviction

relief by his application dated June 20,

1991. The State has made a Return dated

October 4, 1991. A hearing on these plead-

ings was held before me on No. 2mber 22,

1991. At this hearing, Applicant was repre-

sented by Charles B. Burnette III of the

York County Bar. The Respondent was repre-

sented by Lisa Jefferson, Esquire, of the

Office of the Attorney General.

At the hearing, Applicant testified

that he was advised by his trial attorney,

Mr. Weatherford, that he would be eligible

for parole on an annual basis. Trial attor-

ney, Mr. Weatherford, also testified at the

hearing. He testified that he did advise

Applicant that he would be eligible for

parole every year. Applicant testified that

he relied, as part of the plea bargaining in

this case, on the representation that he

would be considered annually for parole

APPENDIX B - 2

after eligibility. Mr. Weatherford testi-

fied, relevant to this, that it was impor-

tant to Applicant that he would be eligible

for parole eligibility on an annual basis in

considering whether to plead guilty.

In Gunter v. State, 298 S.C. 113, 378

S.E. 2d 443 (1989), the South Carolina

Supreme Court ruled that the ex post facts

Clauses of the United States and South

Carolina Constitutions were not violated

where only the frequency with which the

inmate can be considered for parole has been

altered. However, it would appear that

Jimmy Lee Gunter was convicted and did not

plead guilty to the offense.

Here, the undisputed evidence is the

Applicant was told by his attorney that he

would be considered for parole annually, and

that he relied upon this representation in

deciding whether to plead guilty. Further-

more, counsel advised the Applicant that he

would be so considered, and that the Appli-

APPENDIX B - 3

cant relied upon this advise in reaching his

decision to plead guilty.

Notwithstanding the distinguishing

facts in the present case compared to the

facts in Gunter, I find that there is sub-

stantial federal authority that th frequen-

cy of parole consideration is, both in law

and in practice, an important component of a

prisoner's parole eligibility. A change in

its frequency is a substantial one that

effectively disadvantages an inmate. See

Watson v. Estelle, 859 F.2d 105 (Sth Cir.

1988), Aikens v. Snow, 922 F.2d 1558 (11th

Cir. 1991), Fender v. Thompson, 883 F.2d 303

(1989) and Schwartz v. Muncey, 834 F.2d 396

(4th Cir. 1987).

Defendant deciding to plead guilty must

have a full understanding of what the plea

connotes and the consequences of the plea.

Boykin v. Alabama, 395 U.S. 238, 89 S.Ct.

1709, 23 L.Ed 2d 274 (1969). Our Supreme

Court has held that when a trial judge

APPENDIX B - 4

\

:

j

$

misinforms a defendant that he is eligible

for parole when in fact he is ineligible for

parole, his plea does not represent "a

voluntary and intelligent choice among

alternative courses of action" available to

him, citing, State of North Ca-olina v.

Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed

2d 162 (1970). Brown v. State, S.C.

—___» 412 S.E.2d 399 (1991). Unlike the

Situation in Gunter, then, the Court does

not confront a situation where the law on

parole eligibility was simply changed after

a prisoner was convicted upon a plea of not

guilty. Rather, on the facts here, the

annual parole eligibility extant at the time

of the plea formed an integral part of the

applicant's decision to plead guilty, as his

attorney testified.

Under these circumstances, the Court is

constrained to find that Applicant relied

upon the law in existence at the time in

deciding to plead guilty. It would not be

APPENDIX B - 5

fair under the peculiar fact in this record

to permit the statutory change to apply to

him. Therefore, it is ordered that the

Parole Board consider him for parole every

year; or in the alternative, that Applicant

be allowed to withdraw his ples. C.F.

Santobello v. New York, 404 U.S. 257, 92

S.Ct. 495, 30 L.Ed 2d 427 (1971), (Where

guilty plea is induced by prosecutorial

promises, those promises must be fulfilled.)

IT IS SO ORDERED.

s/

JOHN C. HAYES, III, JUDGE

Sixteenth Judicial Circuit

York, South Carolina

April 20, 1992.

APPENDIX B - 6

(SEAL)

The Supreme Court of South Carolina

CLYDE N. DAVIS, JR. P.O. BOX 11330

CLERK COLUMBIA, S.C. 29211

BRENDA F. SHEALY PHONE NO. 734-1080

DEPUTY CLERK

August 17, 1993

The Honorable T. Travis Medlock

The Honorable Joseph D. Shine

The Honorable Delbert H. Singleton, Jr.

Office of the Attorney General

P.O. BOX 11549

Columbia, S.C. 29211

Re: Roger D. Griffin v. State of South

Carolina

Gentlemen:

The Court has refused your Petition for

Rehearing in the above case in the following

order:

"Petition for Rehearing denied.

s/David W. Harwell C.J.

s/A. Lee Chandler A.J.

s/Ernest A. Finney, Jr. A.J.

s/Jean H. Toal A.J.

s/James E. Moore A.J.

August 17, 1993."

APPENDIX C - 1

The remittitur in this matter is today

being forwarded to the Clerk of Court for

York County.

Very truly yours,

/s/ Brenda F. Shealy

DEPUTY CLERK

=e

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 91-6688

Gary Lee Roller,

Plaintiff-Appellant

)

)

)

Vv. )

)

Michael J. Cavanaugh, )

Executive Director of )

the South Carolina De- )

partment of Probation, )

Parole, and Pardon )

Services; South Caro- )

lina Department of )

Probation, Parole, )

and Pardon Services, )

Defendants-Appellees )

Appeal from the United States District Court

for the District of South Carolina, at

Columbia; Henry Michael Herlong, Jr., Dis-

trict Judge

(CA-90-3054-3-20-J)

Argued: December 3, 1992

Decided: January 15, 1993

Before RUSSELL and HALL, Circuit

Judges, and MORGAN, United States District

Judge for the Eastern District of Virginia,

sitting by designation.

APPENDIX D - l

Reversed and remanded by published opinion.

Judge Hall wrote the opinion, in which Judge

Russell and Judge Morgan joined.

APPENDIX D- 2?

ae

OR AOE Le FEB 6 es BE AP, OS ae, IONE OW SE

ey

eS

COUNSEL

ARGUED: W. Gaston Fairey, FAIREY & PARISE,

P.A., Columbia, South Carolina, for Appel-

lant. Carl Norman Lundberg, Chief Legal

Counsel, SOUTH CAROLINA DEPARTMEN. OF PROBA-

TION, PAROLE, AND PARDON SERVICES, Columbia,

South Carolina, for Appellees. ON BRIEF:

Edwin E. Evans, Chief Deputy Attorney Gener-

al, Columbia, South Carolina, for Appellees.

OPINION

HALL, Circuit Judge:

Gary Lee Roller appeals an order of the

district court granting summary judgment for

the defendants in Roller's 42 U.S.C. §1983

suit challenging the frequency of his parole

reconsideration hearings. We must decide

whether a statutory amendment increasing the

length of time between parole reconsidera-

tions from every year to every two years is

an unconstitutional ex post facto law if

applied to prisoners whose crimes were

APPENDIX D - 3

committed before the amendment. Concluding

that it is, we reverse.

ie

In early 1983, Gary Roller was convicted

of voluntary manslaughter and grand larceny

in South Carolina state court. Both of

these crimes occurred on December i3, 1962.

On March 25, 1983, he was sentenced to

consecutive terms of imprisonment of thirty

and five years. At that time, a South Caro-

lina statute provided that, within ninety

days of the prisoner's becoming eligible for

parole, the Parole Board would review the

case and determine whether to grant parole.

If the Board decided not to grant parole,

"the prisoner's case shall be reviewed every

twelve months thereafter for the purpose of

such determination.' Former S.C. Code 24-

21-620 (1976 & Supp. 1981). In 1986, this

statute was amended to make reconsideration

of parole for violent offenders less fre-

quent -- every two years. S.C. Code §24-21-

APPENDIX D - 4

ae

645 (1989 « Supp.1991). The date at which a

prisoner initially becomes eligible for

parole, however, was not changed. 2

In 1990, Roller became eligible for pa-

role. On October 31, 1990, the Board re-

jected parole, and advised Rolle: that his

next hearing would be held October 31,

1992.’

On December 28, 1990, Roller filed this

Suit under 42 U.S.C. §1983 against the

members of the Parole Board in their offi-

cial and personal Capacities. He sought

monetary, declaratory, and injunctive re-

lief. The gravamen of his claim was that

application of the less-frequent parole

review to him violated the federal constitu-

tion's prohibition of ex post facto laws.

The defendants moved for Summary judgment.

The magistrate recommended that the motion

* We were advised at oral argument that

this hearing was held, and parole was de-

nied.

APPENDIX D - 5

be granted. Over Roller's objections, the

district court adopted the magistrate's

recommendation.

Roller appeals.

af.

A.

The district court held that Roller's

official-capacity claims for damages were

not cognizable under §1983, see Will v.

Michigan Dept. of State Police, 491 U.S. 58

(1989), and that the defendants had not

overstepped their qualified immunity’ so as

to subject themselves to personal liability.

see Harlow v. Fitzgerald, 457 U.S. 800

(1982). On appeal, Roller does not challenge

these rulings. Because, however, prospective

relief to stop unconstitutional practices by

* Because qualified immunity suffices to

shield the defendants from personal liabili-

ty, we need not decide whether the schedul-

ing of parole reconsiderations is perfor-

mance of a quasi-judicial function, for

which the defendants would have absolute

immunity. See generally, Forrester v.

White, 484 U.S. 219, 225-229 (1988); Pope v.

Chew, 521 F.2d 400, 405 (4th Cir. 1975).

APPENDIX D - 6

states is available in federal courts, Ex

parte Young, 209 U.S. 123 (1908), Roller's

Claims for declaratory and injunctive relief

are not affected by the defendants’ immuni-

ties. Pulliam v. Allen, 466 U.S. 522 (1984).

B.

In 1973, in the midst of an unprecedented

influx of civil rights suits by prisoners,

the Supreme Court held that

when a state prisoner is Challeng-

ing the very fact or duration of

his physical imprisonment, and the

relief he seeks is a determination

that he is entitled to immediate

release or a speedier release from

that imprisonment, his sole feder-

al remedy is a writ Of habeas

corpus.

Preiser vy. Rodriguez, 411 U.S. 475, 509

(1973). The defendants here argue that

Roller is attacking a part of his sentence -

APPENDIX D - 7

~ parole eligibility -- and §1983 does not

provide relief. The Preiser distinction is

important here because Roller has not ex-

hausted his state remedies on his ex post

facto claim -- a general prerequisite to

federal habeas corpus relief, bur not to a

$1983 suit.

In Strader v. Troy, 571 F.2d 1263 (4th

Cir. 1978), we held that §1983 was the

proper vehicle for a defendant who sought to

preclude a state parole board from consider-

ing allegedly invalid prior convictions.

Because the petitioner did not assert that

he was entitled to parole, "now or ever," no

exhaustion of the state habeas remedy was

required. Like the inmate in Strader, Roller

does not say he is entitled to parole. We

follow Strader and find that Roller has

stated a cognizable §1983 claim.

APPENDIX D - 8

III.

A.

The Constitution prohibits both the feder-

al and state legislatures from passing ex

post facto laws. U.S. Const. art I, §9, cl.

3 and §10 cl. 1. Neither Congres: nor the

states may "enact any law ‘which imposes a

punishment for an act which was not punish-

able at the time it was committed; or impos-

es additional punishment to that then de-

scribed.'" Weaver v. Graham, 450 U.S. 24, 28

(1981) (quoting Cummings v. Missouri, 4

Wall. 277, 325-26 (1867). Though there is

no constitutional requirement that a state

permit parole or early release from confine-

ment, Greenholtz v. Inmates of Nebraska

Penal & Correctional Complex, 442 U.S. 1

(1979), statutes providing for parole are

“part of the law annexed to the crime at the

time of the person's offense." Schwartz v.

Muncy, 834 F.2d 396, 398 n.8 (4th Cir.

APPENDIX D - 9

1987) (quoted in Fender v. Thompson, 883

F.2d 303, 305 (4th Cir. 1989).

The ex post facto clauses are a restric-

tion on the power of government and operate

without regard to the affirmative "rights"

of the individual. Consequent.», it is

immaterial to an ex post facto challenge to

computation of a release or parole eligibil-

ity date that the prisoner does not have a

“vested” liberty or property right in pa-

role, “good time," or the like. Weaver, 450

U.S. at 29-30 (criticizing state court for

rejecting ex post facto claim by finding no

“vested right" to good time credits).

The South Carolina Supreme Court has

rejected a challenge identical to Roller's.

Gunter v. State, 298 S.C. 113, 378 S.E.2d

443 (1989).

B.

Four of our sister courts of appeals have

directly addressed whether a retroactive

reduction in the frequency of parole consid-

APPENDIX D - 10

eration violates the ex post facto clause.

Three have held that it does, though the

Ninth Circuit's opinion was vacated on other

grounds and is thus a nullity. Rodriquez v.

United States Parole Comm'n, 594 F.2d 170

(7th Cir. 1979) (parole recon- ideration

changed from one-third point in sentence to

every eighteen months; ex post facto clause

violated as to a prisoner serving only a

two-year sentence); Watson v. Estelle, 859

F.2d 105 (9th Cir. 1988), vacated, 886 F.2d

1093 (1989); Akins v. Snow, 922 F.2d 1558

(lith Cir.), cert. denied, 111 S.Ct. 2915

(1991); but see Bailey v. Gardebring, 940

F.2d 1150 (8th Cir. 1991), cert. denied, 112

S.Ct. 1516 (1992) (lead judge held that

administrative rule was not a "law" subject

to ex post facto clause; one judge concurred

only in the result; the third dissented).

In Akins, the Eleventh Circuit considered a

Georgia statute that decreased the frequency

of parole hearings from once a year to once

APPENDIX D - ll

every eight years. The court held that this

change affected the substantive rights of

persons who committed crimes before its

enactment, and was not simply a "procedural

change." The court reasoned:

Since the [paroie board] ir re-

quired to hold some type of parole

reconsideration hearing before

granting parole, an inmate is

effectively ineligible for parole

between two reconsideration hear-

ings. Because an inmate is not

paroled without a parole reconsid-

eration hearing, the hearing must

be considered an essential part of

parole eligibility. 922 F.2d at

1562 (boldface in original).

The appellees cannot convincingly distin-

guish Akins. They concede that a seven-year

increase in a prisoner's wait between recon-

siderations is so long that it is substan-

tive, but assert, "[ajs if you could kill

APPENDIX D - 12

time without injuring eternity,"’ that a

one-year wait is procedural" and presents no

ex post facto difficulty. See Dobbert v.

Florida, 432 U.S. 282 (1977) (ex post facto

Clause does not “limit the legislative

control of remedies and modes of procedure

which do not affect matters of substance") .‘

We are not willing to disparage the "sub-

stance" of a year, especially a year in

prison.

Defendants also point out that Roller

becomes and remains "eligible" for parole

just as he would have under the law in

Thoreau, Walden; or, Life in the

Woods, "Economy," reprinted in Walden and

Other Writings by Henry David Thoreau 111

(Bantam Classic ed. 1981).

* Cf. cases in which changes in the

manner of reimposing sentence after the

Original sentence is set aside have been

held to present no ex post facto problem.

Collins v. Youngblood, U.S. 37 (1990)

(Texas statute allowing appellate court to

reform ill@gal sentence); Evans vv. Thomp

son,. 881 F.2d 117 (4th Cir, 1989), cert,

denied, 1130 §8.Ct. 3255 (1990) (Virginia

Statute providing that capital defendants

whose sentences are vacated may be re

sentenced pefore 4 new jury).

APPENDIX D ~ 13

effect when he committed his crimes. The

defendants do not, however, identify any

benefit flowing from the status of "eligi-

bility" ocher than the right to be heard and

considered for parole. Eligibility without

consideration is a cold comfort.

This circuit has no case so directly on

point as Akins; however, two cases provide

us considerable guidance. In Schwartz v.

Muncy, 834 F.2d 396 (4th Cir. 1987), the

court reviewed a Virginia statute that

increased the time before an inmate would

become eligible for parole on existing

sentences if the inmate committed a third

offense after the statute's effective date.

The court held that the statute increased

the punishment for a crime completed before

its enactment, and thus the statute violated

the ex post facto clause,

In Fender v. Thompson, 883 F.2d 303 (4th

Cir. 1989), a atate inmate was serving a

life sentence, Under the state law in

APPENDIX D - 14

effect at the time of the crime, the inmate

was eligible for parole after fifteen years.

The state legislature later passed a law

revoking the parole eligibility of inmates

who escaped while serving life sentences.

The inmate escaped after passage f the new

law, and his eligibility for parole was

revoked. We held that, though the state

could punish escape in almost any manner it

pleased, it could not do so by increasing

the punishment for crimes committed before

the new escape statute was enacted. We

stated this general rule:

[S]tatutes enacted or amended

after a prisoner was sentenced

cannot be applied to alter the

conditions of or revoke his or her

preexisting parole eligi-

bility

883 F.2d at 306. South Carolina has undoubt-

edly applied its new statute to "alter the

conditions of . . . [Roller's] preexisting

APPENDIX D - 15

parole eligibility." Indeed, it has effec-

tively "revoked" eligibility for an extra

year following a denial.

The judgment is reversed, and the case is

remanded with instructions to grant declara-

tory, and, if necessary, injunctiv>,’ relief

in favor of Roller. Our decision does not,

of course, require or even Suggest that

Roller be paroled. South Carolina need never

parole him, so long as it considers the

question every year.

REVERSED AND REMANDED

> See Steffel v. Thompson, 415 U.S. 452,

468-471 (1974) (district court may antici-

pate that state authorities will comply with

a declaratory judgment and thereby forego

issuing an injunction).

APPENDIX D - 16

THE STATE OF SOUTH CAROLINA

In the Supreme Court

‘Timmy Lee Gunter, Petitioner,

Vv.

State of South Carolina, Rc spondent.

ON WRIT OF CERTIORARI

Appeal from Richland County

George B. Timmerman, Jr.,

Special Circuit Judge

Opinion No. 22981

Submitted January 31, 1989 -

Filed March 6, 1989

AFFIRMED

Assistant Appellate Defender Joseph lL.

Savitz, III, of S.C. Office of Appellate

Defense, of Coluinbia, for petitioner.

APPENDIX E - 1

Attorney General T. Travis Medlock, Chief

Deputy Attorney General Donald J. Zelenka,

Assistant Attorney General Frank L. Valenta,

Jr., all of Columbia, for respondent.

PER CURIAM: Petitioner was sonvicted

of voluntary manslaughter and was sentenced

to imprisonment for thirteen (13) years. He

now seeks a writ of certidérari to review the

denial of his application for post-convic-

tion relief (PCR). We grant certiorari,

dispense with further briefing, and affirm.

Petitioner alleges that the application

of three statutes to him violates the ex

post facto clauses of the United States and

South Carolina Constitutions.’ First, peti-

tioner challenges S.C. Code Ann. §24-21-645

(Supp. 1987), which permits him to be recon-

Sidered for parole only on a biannual basis.

Under the Statutory scheme in effect when

‘See U.S. Const. art. I, $10; S.c.

Const. art. I, §4.

APPENDIX E - 2

: 7

Bt

ed —-

Sa ar ne: oe ee

Se iad —— .

4 Dhoni ae 7 : a

- os a es i =>: :

o ae ee © |

», ’ :

>> —_ _ 7 :

a Se aoe he

a =- 7 eee oa we

petitioner committed the crime, he was

eligible for reconsideration for parole

every twelve (12) months. See S.C. Code

Ann. §24-21-620 (Supp. 1987). In 1986, §24-

21-645 was amended to provide that persons

convicted of violent Crimes, defin-d in §16-

1-60 to include voluntary manslaughter, wiil

be reconsidered for parole every two years.

On this issue we find persuasive the

holding of the California Supreme Court in

In re Jackson, 39 Cal.3d 464, 703 P.2d 100,

216 Cal. Rptr. 760 (1985). There the Court

held that a statutory amendment prolonging

the time before reconsideration for parole

was a procedural change outside the purview

of the ex post facto clause. -Cf. Weaver v.

Graham, 450 U.S. 24, 101 S.Ct. 960, 67

L.Ed.2d 17 (1981) (generally ex post facto

Clause does not apply to procedural chang-

es). The Court reasoned that the amendment

did not alter the criteria by which parole

Suitability is determined, but rather

APPENDIX E - 3

Changed only the frequeney with whieh an

inmate was givéf to demonatrate parole

Suitability.

By the same token, the standards gov-

erning petitioner's parole eligibility have

not been changed. Instead, only the fre-

quency with which petitioner can be recon-

Sidered for parole has been altered. We

find no ex post facto violation in the

application of the questioned statute to

petitioner.

Second, petitioner challenges 8.C. Code

Ann. §24-13-650 (Supp, 19807), whien prohib

its any person cOnvicted of a violent of

fense from beind released under the work

release program in the community where the

crime was committed. It must be noted

initially that we have found nothing in the

statutes indicating that petitioner had a

pre-existing right to be considered for work

release in the cemmunity where the offense

was committed. THrerefore, it seems doubtful

APPENDIX E = 4

whether petitioner has made out a Legitimate

ex post facto claim,

Even assuming petitioner had previously

been eligible for work release in the commu =

nity where the offense was committed, we

find no ex post facto violation in ~etition-

er being denied this possibility under §24-

13-650. The Board of Corrections has dis-

cretion whether to allow an inmate even to

participate in a work release program. See

5.C. Code Ann, §24-<3+20 (1976). Therefore,

participation in a work release program 16 a

privilege, giving rise to no vested rights

- a te

People v, Miller, 79 A.D.2d 6607, 444 N.Y.S,

2d 36 (1980),

Further, in Morris v. Meacham, 718 P.2d

1354 (Okla. 1986), the Oklahoma Supreme

Court upheld the retroactive application of

a statutory amendment rendering the inmate

ineligible for assignment to a work release

program, The Court said that modes of

APPENDIX E = 5

procedure, such as a security classifica-

tion, do not affect matters of sufficient

substance to invoke the prohibition against

ex post facto laws. Cf. Mellinger v. Idaho

Dep't of Corrections, 114 Idaho 494, 757

P.2d 1213 (Ct. App. 1988) (uphold ng imple-

mentation of stricter conditions of re-

lease).

In the present case, §24-13-650 does

not deny petitioner consideration or even

require him to face tougher criteria for the

work release program. Rather, he is merely

foreclosed from being released into the

community in which he committed the crime.

We find no ex post facto violation in apply-

ing this statute to petitioner.

Petitioner's remaining argument con-

cerns supervised furloughs. As S.C. Code

Ann. §24-13-710 (Supp. 1987) read at the

time the offense was committed, petitioner

was at least theoretically capable of satis-

fying the criteria for obtaining a furlough.

APPENDIX E - 6

ee ree ere

However, since that time the Statute has

been amended to include, among other things,

requirements that the inmate be neither

sentenced to more than five years nor con-

victed of a violent offense. Because peti-

tioner received a sentence of thi.-teen (13)

years for a violent offense, he is now

foreclosed from being considered for a

furlough.

In Milhouse v. Levi, 548 F.2d 357 (D.C.

Cir. 1976), the court held that regulations

adversely affecting an inmate's eligibility

for furloughs are not subject to the consti-

tutional prohibition against ex post facto

laws. The Court distinguished furlough

programs from parole, describing furlough

programs as internal rehabilitation proce-

dures that are not an integral part of the

sentencing process.

We agree that the furlough program is

not part of the sentencing process. As

stated in Anders v. South Carolina Parole &

APPENDIX E - 7

Community Corrections Bd., 279 S.C. 206, 305

S.E.2d 229 (1983), the purpose behind the

enactment of §24-13-710 was to help allevi-

ate prison overcrowding. The purpose was

not to confer substantial rights upon cer-

tain members of the prison populc«*ion. We

therefore hold that the application of §24-

13-710, as amended, to petitioner does not

amount to an ex post facto violation.

For the foregoing reasons, the denial

of post-conviction relief is AFFIRMED.

S/George T. Gregory, Jr.

S/David W. Harwell

S/A. Lee Chandler

S/Ernest A. Finney, Jr.

S/Jean Hoefer Toal

APPENDIX E - 8

a

S.C. Code Ann. §24-21-610 enacted June 15,

1381 (parole eligibility)

"Section 24-21-610. In all cases

cognizable under this chapter the Board may,

upon ten days' written notice to the solici-

tor and judge who participated in the trial

of any prisoner, parole such prisoner con-

victed of a felony and imprisoned in the

state penitentiary, in any jail or upon the

public works of any county:

(1) Who, if sentenced for not more than

thirty years, shall have at least one third

of the term;

(2) Who, if sentenced to life imprison-

ment or imprisonment for any period in

excess of thirty years, shall have served at

least ten years;

(3) Who, if he is a first offender and

is sentenced for an indeterminate term shall

have served the minimum for which he was

sentenced.

APPENDIX F - 1

Provided, if after January 1, 1984, the

Board shall find that the statewide case

Classification system provided for in Chap-

ter 23 of this title has been implemented,

that an intensive supervision program for

parolees who require more tha: average

Supervision has been implemented, that a

System for the periodic review of all parole

cases in order to assess the adequacy of

Supervisory controls and of parolee partici-

pation in rehabilitative programs has been

implemented, and that a system of contracted

rehabilitative services for parolees is

being furnished by public and private agen-

cies, then in all cases cognizable under

this chapter the Board may, upon ten days'

written notice to the solicitor and judge

who participated in the trial of any prison-

er, to the victim or victims, if any, of

such felony, and to the sheriff of the

county where the prisoner resides or will

reside, parole such prisoner convicted of a

APPENDIX F - 2

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felony and iepcteoned in the state peniten-

tiary, in any jail or upon the public works

of any county:

(1) Who, if sentenced for the crime of

murder, armed robbery, Criminal sexual

assault, assault and battery with intent to

kill or kidnapping, shall have served at

least one third of the term; provided, that

for any other crime the prisoner shall have

served at least one fourth of the term;

(2) Who, if sentenced to life imprison-

ment or imprisonment for any period in

excess of forty years, shall have served at

least ten years;

(3) Who, if he is a first offender and

is sentenced for an indeterminate term shall

have served the minimum for which he was

sentenced.

Provided, further, that the provisions

of this section shall not affect the parole

ineligibility provisions for murder and

APPENDIX F - 3

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armed robbery as set forth respectively in

Section 16-3-20 and Section 16-11-330.

Provided, further, that in computing

parole eligibility, no deduction of time

shall be allowed in any case for good behav-

ior, but that after June 30, 15°11, there

shall be deductions of time in all cases for

earned work credits, notwithstanding the

provisions of Section 16-3-20, Section 16-

1%-330 and Section 24-13-230.

Notwithstanding the provisions of this

section, the Board may parole any prisoner

not sooner than one year prior to the pre-

scribed date of parole eligibility when,

based on medical information furnished to

it, the Board determines that the physical

condition of the prisoner concerned is so

serious that he would not be reasonably

expected to live for more than one year.

Notwithstanding any other provision of this

section or of law, no prisoner who has

served a total of ten consecutive years or

; APPENDIX F - 4

more in prison shall be paroled until the

Board has first received a report as to his

mental condition and his ability to adjust

to life outside the prison from a duly

qualified psychiatrist or psychologist."

APPENDIX F - 5

S.C. Code Ann. §24-21-620 enacted June 15,

1981 (parole hearing rescheduling)

"Section 24-21-6220. Within the ninety-

day period preceding a prisoner having

served one-fourth of his sentence, the

Board, either acting in a three-member panel

or meeting as a full Board, shall review the

case, regardless of whether or not any

application has been made therefor, for the

purpose of determining whether or not such

prisoner is entitled to any of the benefits

provided for in this chapter; provided, that

in cases of prisoners in confinement due to

convictions for nonviolent crimes, an admin-

istrative hearing officer may be appointed

by the Commissioner of Paroles and Pardons

to review the case who shall submit to the

full Board written findings of fact and

recommendations, which shall be the basis

for a determination by the Board. Upon an

affirmative determination, the prisoner

shall be granted a provisional parole. Upon

a negative determination, the prisoner's

APPENDIX G - l

case shall be reviewed every twelve months

thereafter for the purpose of such determi-

nation."

APPENDIX G - 2

S.C. Code Ann. §24-21-645 enacted June 3,

1986 (parole hearing rescheduling)

"Section 24-21-645. The Board may

issue an order authorizing the parole which

must be signed either by a majority of its

members or by all three members meeting as a

parole panel on the case, ninety days prior

to the effective date of the parole; provid-

ed that at least two-thirds of the members

of the Board must authorize and sign orders

authorizing parole for persons convicted of

a violent crime as defined in Section 16-1-

60. A provisional parole order shall in-

Clude the terms and conditions, if any, to

be met by the prisoner during the provision-

al period and terms and conditions, if any,

to be met upon parole. Upon satisfactory

completion of the Provisional period, the

Executive Director or one lawfully acting

for him, shall issue an order, which, if

accepted by the prisoner, shall provide for

his release from custody.

APPENDIX H - 1

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Provided, that upon a negative determi-

nation of parole, prisoners in confinement

for a violent crime as defined in Section

16-1-60 must have their cases reviewed every

two years for the purpose of a determination

of parole."

APPENDIX H - 2

Ce

S.C. Code Ann. §24-21-650 enacted June 3,

1986 (parole hearing rescheduling)

"Section 24-21-650. The Board shall

issue an order authorizing the parole which

must be signed by at least a majority of its

members, with terms and conditions, if any;

provided, that at least two-thirds of the

members of the Board must sign orders autho-

rizing parole for persons convicted of a

violent crime as defined in Section 16-1-60.

Thereupon the supervisor of parole, or one

lawfully acting for him, shall issue a

parole order, which, if accepted by the

prisoner, shall provide for his release from

custody.

Provided, that upon a negative determi-

nation of parole, prisoners in confinement

for a violent crime as defined in Section

16-1-60 must have their cases reviewed every

two years for the purpose of a determination

of parole."

APPENDIX I - l

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S.C. Code Ann. §16-1-60 (1976) enacted June

3, 1986 (violent crime classification)

"Section 16-1-60. For purposes of

definition under South Carolina law a vio-

lent crime includes the offenses of murder,

criminal sexual conduct in the first and

second degree, assault and battery with

intent to kill, kidnapping, voluntary man-

slaughter, armed robbery, drug trafficking

as defined in Section 44-53-370(e), arson

in the first degree, burglary in the first

degree, and burglary in the second degree

under Section 16-11-312(B)."

APPENDIX J - 1

Sections 8, 266, and 269 of South Carolina

Act No. 184 of 1993 (violent crime classifi-

cation)

SECTION 8. Section 16-1-60 of the

1976 Code is amended to read:

"Section 16-1-60. (A) For purposes of

definition under South Carolina law a

violent crime includes the offenses of

murder (Section 16-3-10); criminal

sexual conduct in the first and second

degree (Sections -16-3-652 and 16-3-

653); criminal sexual conduct with

minors (Section 16-3-655); assault with

intent to commit criminal sexual con-

duct (Section 16-3-656); assault and

battery with intent to kill (Section

16-3-620); kidnapping (Section 16-3-

910); voluntary manslaughter (Section

16-3-50); armed robbery (Section 16-11-

330); drug trafficking as defined in

Section 44-53-370(e}; arson in the

APPENDIX K - 1

first degree (Section 16-11-110 (A));

burglary in the first degree (Section

16-11-311); and burglary in the second

degree (Section 16-11-312(B)).

(B) For a person to be considered

guilty of a violent crime, t e offense

must be defined as a violent crime

pursuant to subsection (A) at the time

of the commission of the crime."

SECTION 266. All proceedings pending

and all rights and liabilities exist-

ing, acquired, or incurred at the time

this act takes effect are saved. The

provisions of this act other than Sec-

tion 16-1-60(B) apply prospectively to

crimes and offenses committed after the

effective date of the act. The provi-

sions of subsection 16-1-60(B) apply

APPENDIX K - 2

retroactively to all persons convicted

under the laws of this State. All

sentences pronounced on or after the

effective date of this act must comply

with the classification system, except

where a penalty greater than he one in

effect on the date the offense was

committed would be required.

SECTION 269. This act, other than

Sections 267 and 268, takes effect

January 1, 1994.

Approved the 21st day of June, 1993.

APPENDIX K - 3