           THE STATE OF SOUTH CAROLINA 

                In The Supreme Court 


   The State, Petitioner,

   v.

   Alonzo Hawes, Respondent.

   Appellate Case No. 2012-212978



ON WRIT OF CERTIORARI TO THE COURT OF APPEALS



               Appeal from Greenwood County 

            Frank R. Addy, Jr., Circuit Court Judge 



                     Opinion No. 27476 

         Heard June 11, 2014 – Filed January 7, 2015 



               VACATED AND REMANDED


   Attorney General Alan M. Wilson and Assistant Attorney
   General William M. Blitch, Jr., of Columbia, for
   Petitioner.

   E. Charles Grose, Jr., of Grose Law Firm, of Greenwood,
   and Donna Katherine Anderson, of Laurens, for
   Respondent.
JUSTICE KITTREDGE: With no provocation, Respondent Alonzo Hawes shot
and killed his estranged wife in the presence of their children. Following a guilty
plea to voluntary manslaughter, the trial court granted Hawes's section 16-25-90
motion for eligibility for early parole, which the court of appeals affirmed. State v.
Hawes, 399 S.C. 211, 730 S.E.2d 904 (Ct. App. 2012). We issued a writ of
certiorari to review the court of appeals' decision. Because the trial court failed to
exercise discretion, which was likely the result of its reliance on a prior version of
section 16-25-90, we vacate the court of appeals' opinion and remand for
reconsideration in light of the correct version of the statute.

                                          I.

In 2007, Hawes visited his estranged wife's home because he wished to take his
children to visit a relative. When his wife refused, Hawes shot and killed her,
without provocation, in front of the children and fled the scene of the crime.
Hawes was indicted for murder but pled guilty to voluntary manslaughter and was
sentenced to twenty-two years in prison.1

At the sentencing hearing, Hawes moved for early parole eligibility pursuant to
South Carolina Code section 16-25-90 (Supp. 2013), which provides that an inmate
who commits an offense against a household member "is eligible for parole after
serving one-fourth of his prison term when the inmate . . . present[s] credible
evidence of a history of criminal domestic violence . . . suffered at the hands of the
household member."2

The State presented evidence that Hawes and his estranged wife had a decade-long
tumultuous relationship, which included instances of mutual combat. The State

1
 Hawes also pled guilty to possession of a firearm during the commission of a
violent crime and was sentenced to five years in prison, with the sentences to run
concurrently.
2
 The legislative history of section 16-25-90 indicates that the statute was intended
to confer early parole eligibility only to long-term victims of repeated abuse at the
hands of a household member. See Act No. 7, 1995 S.C. Acts 58–59 (indicating
that section 16-25-90 was first enacted alongside the defense of battered spouse
syndrome).
also presented evidence that Hawes was the primary aggressor in the relationship.
Nevertheless, the trial court determined that Hawes was eligible for early parole
eligibility, erroneously applying a prior version of section 16-25-90, which
provided that a defendant "shall be eligible for parole" if he presents "credible
evidence of a history of criminal domestic violence . . . suffered at the hands of the
household member." S.C. Code Ann. § 16-25-90 (2003) (emphasis added). The
trial court concluded that it was "compelled" to grant Hawes early parole eligibility
in view of the "shall be" language. The court of appeals affirmed. Hawes, 399
S.C. at 215, 730 S.E.2d at 906.

                                           II.

"In criminal cases, the appellate court sits to review errors of law only and is bound
by factual findings of the trial court unless an abuse of discretion is shown." State
v. Blackwell-Selim, 392 S.C. 1, 3, 707 S.E.2d 426, 427 (2011) (per curiam) (citing
State v. Laney, 367 S.C. 639, 643, 627 S.E.2d 726, 729 (2006)). "An abuse of
discretion occurs when the trial court's ruling is based on an error of law or, when
grounded in factual conclusions, is without evidentiary support." State v. Black,
400 S.C. 10, 16, 732 S.E.2d 880, 884 (2012) (quoting State v. Jennings, 394 S.C.
473, 477–78, 716 S.E.2d 91, 93 (2011)). "A failure to exercise discretion amounts
to an abuse of that discretion." Samples v. Mitchell, 329 S.C. 105, 112, 495 S.E.2d
213, 216 (Ct. App. 1997) (citations omitted).

The State contends the court of appeals erred in affirming the trial court because
the trial court failed to exercise discretion. We agree, although we see no
meaningful difference in the legislature's use of the "shall be eligible" language in
the prior version of the statute and the "is eligible" language in the statute in effect
when Hawes killed his wife. Under either iteration of the statute, the trial court
must exercise discretion based on the evidence presented, consistent with the
legislature's intended reach of section 16-25-90. Here, it is apparent the trial court
believed its discretion was constrained by the "shall be" language. That perceived
limitation of discretion is reflected in the trial court's belief that it was "compelled"
to find in favor of Hawes. The trial court further stated that the "use of the word
'shall' in the statute notes mandatory, not precatory, language so that, if the court
were to find a credible history of domestic violence suffered at the hands of the
victim, the court is required to authorize application of the statute." The trial court
considered the history of violence between the parties and found Hawes "has
proven himself to be the recipient of a history of domestic violence by [the
victim]." That finding alone, according to the trial court, mandated early parole
eligibility for Hawes.

Under these circumstances, we find legal error in the trial court's reliance on the
incorrect version of section 16-25-90. The prejudice to the State is manifest in the
trial court's acknowledgement that "this is a close case." As a result, we vacate the
opinion of the court of appeals and remand to the trial court for reconsideration
under the proper version of section 16-25-90.3


VACATED AND REMANDED.

TOAL, C.J., and Acting Justice Dorothy Mobley Jones, concur.
PLEICONES, J., dissenting in a separate opinion in which BEATTY, J.,
concurs.




3
    In light of the remand, we do not reach the other challenges raised by the State.
JUSTICE PLEICONES: I respectfully dissent. I agree with the majority that
there is no meaningful difference between the two versions of S.C. Code Ann. §
16-25-90.4 I nonetheless disagree with the majority's interpretation of the trial
judge's use of the word "compelled." In my view, the trial judge's use of the word
reflects his determination that the evidence presented by Hawes, which included
reported instances of criminal domestic violence and a history of mutual physical
abuse, was credible. Thus, it is my view, the trial judge determined based upon the
weight of the credible evidence that he was compelled to find § 16-25-90 applied,
and that Hawes was eligible for early parole.5 To the extent the majority finds
legal error based on the trial judge's failure to exercise discretion, I disagree. The
trial judge, in granting Hawes early parole eligibility, noted "this is a close case"
and that "reasonable minds could certainly disagree with the court's finding." Such
language makes clear to me that the trial judge exercised his discretion in
determining that Hawes was entitled to early parole eligibility. Accordingly, I
would dismiss certiorari as improvidently granted.



BEATTY, J., concurs.




4
  Compare S.C. Code Ann. § 16-25-90 (2003) ("[A]n inmate who was convicted
of, or pled guilty or nolo contendere to, an offense against a household member
shall be eligible for parole after serving one-fourth of his prison term when the
inmate . . . present[s] credible evidence of a history of criminal domestic violence .
. . suffered at the hands of the household member."), with S.C. Code Ann. § 16-25-
90 (Supp. 2013) ("[A]n inmate . . . is eligible for parole . . . .").
5
 The trial judge's order states that he was "compelled to find that the Defendant
[Hawes] has met his burden."
