                      THE STATE OF SOUTH CAROLINA 

                           In The Supreme Court 


            Antonio D. Bordeaux, Respondent,

            v.

            State of South Carolina, Petitioner.

            Appellate Case No. 2012-212349


       ON WRIT OF CERTIORARI TO THE COURT OF APPEALS



                          Appeal from Beaufort County 

                      Michael G. Nettles, Circuit Court Judge 



                               Opinion No. 27457 

                 Heard September 23, 2014 – Filed October 29, 2014 



                  AFFIRMED IN PART, REVERSED IN PART


            Assistant Attorney General James Rutledge Johnson, of
            Columbia, for Petitioner.

            Appellate Defender Kathrine Haggard Hudgins, of
            Columbia, for Respondent.



JUSTICE PLEICONES: We granted certiorari in this post-conviction relief
(PCR) action to review the Court of Appeals' decision, which remanded for a
determination of the lawfulness of Antonio Bordeaux's sentence. Bordeaux v.
State, Op. No. 2012-UP-284 (S.C. Ct. App. filed May 9, 2012). The State argues
the Court of Appeals erred because the unambiguous plea colloquy and imposition
of sentence control over the ambiguous written sentence. We agree. It is clear
Bordeaux pleaded guilty to first degree burglary, was sentenced within the legal
limits for that crime, and in consonance with his negotiated plea agreement. We
therefore affirm in part and reverse in part.

                 FACTUAL/PROCEDURAL BACKGROUND
Bordeaux's plea agreement was capped at a sentence of twenty-five years. He pled
guilty to two counts of armed robbery and two counts of burglary. He was
sentenced to twenty-four years' imprisonment on the armed robbery charges, and to
twenty-five years' imprisonment, suspended upon the service of twenty years with
three years' probation on the burglary counts.

Bordeaux's plea proceeding was conducted simultaneously with that of his co-
defendant, Wesley Washington. Like Bordeaux, Washington had been indicted on
two counts of first degree burglary, but pleaded guilty to two counts of second
degree burglary. The transcript demonstrates that the plea colloquy with the trial
judge alternated between Bordeaux and Washington. During Bordeaux's plea
colloquy, he acknowledged on at least seven occasions that he was pleading guilty
to two counts of first degree burglary. At sentencing, Bordeaux was again
reminded, and acknowledged, that he was being sentenced pursuant to his plea
negotiations for two counts of first degree burglary, each of which carried a
minimum fifteen-year sentence, and a maximum of life imprisonment. The trial
judge announced Bordeaux's sentence for first degree burglary as:

      "a term of twenty-five years, provided that upon the service of twenty
      years the balance is suspended and you be placed on probation for a
      period of three years." (Emphasis added).

The sentencing sheets, however, indicated Bordeaux pleaded guilty to "Burglary
2nd Degree," included the CDR Code for second degree burglary, and referenced
S.C. Code Ann. § 16-11-312 (2014), the second degree burglary statute. Despite
these references, the sentencing sheets also indicated Bordeaux pleaded guilty "as
indicted," and that his sentence was in accord with the plea colloquy.

At the PCR hearing, Bordeaux claimed his twenty-five year sentence was illegal
because the sentencing sheets clearly indicated that he pleaded guilty to second
degree burglary, and because his twenty-five year sentence exceeded the maximum
for second degree burglary. See § 16-11-312(C)(2) (setting a fifteen-year
maximum term of imprisonment for defendants convicted of second degree
burglary pursuant to § 16-11-312(B)). In support of his contention, Bordeaux
offered into evidence the two sentencing sheets. Bordeaux further testified that
after the sentencing sheets were signed, someone scratched out "15" years, and
replaced it with "25" years.

The PCR judge granted Bordeaux a new trial as to the burglary charges because he
found Bordeaux was serving an illegal sentence for second degree burglary given
his sentence of twenty-five years. The PCR judge based his finding on his
conclusion that Bordeaux's sentencing sheets amounted to a "contract" between
Bordeaux and the State, and trumped the unequivocal plea transcript.

The State appealed. The Court of Appeals reversed and remanded for a
determination of the lawfulness of Bordeaux's sentence given the conflict between
his plea colloquy and the sentencing sheets. Bordeaux, Op. No. 2012-UP-284.
The court found the PCR judge committed an error of law in ruling the sentencing
sheets definitively took precedence over the unambiguous plea transcript and
directed the PCR judge, on remand, to give "appropriate weight to the plea
transcript." Id. The State sought certiorari on the remand issue. We granted the
petition.

                                      ISSUE
Did the Court of Appeals err in remanding for reconsideration of the legality of
Bordeaux's convictions and sentences for first degree burglary?

                             LAW/APPLICATION
Whether a sentencing transcript or sentencing sheet is ambiguous is a question of
law. See Tant v. S.C. Dep't of Corr., 408 S.C. 334, 346, 759 S.E.2d 398, 404
(2014). Likewise, whether a PCR applicant is serving an illegal sentence is a
question of law. See Talley v. State, 371 S.C. 535, 545, 640 S.E.2d 878, 883
(2007); see also United States v. Johnson, No. 13-3649, 2014 WL 4211065, at *7
(7th Cir. Aug. 27, 2014) (comparing the sentencing transcript with the written
judgment to determine whether an error occurred as a matter of law). We therefore
review de novo the lawfulness of a sentence. See Tant, 408 S.C. at 346, 759 at
404; Talley, 371 S.C. at 545, 640 S.E.2d at 883.

A sentence is ambiguous if its pronouncement is susceptible of differing
interpretations based on the totality of the circumstances. See United States v.
Stallone, 399 F.2d 415, 422–27 (2d Cir. 2005) (viewing the totality of the
circumstances to determine whether a sentencing pronouncement was ambiguous);
Tant, 408 S.C. at 344–45, 759 S.E.2d at 403–04 (finding both the oral and written
sentencing pronouncements were ambiguous because it was not clear from either
whether Tant's sentences were to run concurrently or consecutively). An
unambiguous sentencing pronouncement will control over an ambiguous sentence,
whether oral or written, so long as giving effect to that pronouncement does not
result in an illegal sentence or a deprivation of a defendant's constitutional rights.
See, e.g., Boan v. State, 388 S.C. 272, 277, 695 S.E.2d 850, 852 (2010) (declining
to give effect to an unambiguous sentencing sheet over an unambiguous plea
colloquy because to do so would result in a deprivation of the defendant's right to
due process).

Here, Bordeaux's oral sentencing pronouncement was subject to only one
interpretation as it is clear Bordeaux pled guilty to two counts of first degree
burglary, and he was sentenced in consonance with his negotiated plea agreement.
As stated, Bordeaux acknowledged on seven occasions that he was pleading guilty
to two counts of first degree burglary. Further, Bordeaux twice acknowledged that
he was being sentenced pursuant to a negotiated agreement, which included
pleading guilty to two counts of first degree burglary. Moreover, the trial judge
reminded Bordeaux that he was being sentenced for pleading guilty to two counts
of first degree burglary. Thus, we find the oral sentencing pronouncement
unambiguous as it is susceptible of only one interpretation. Cf. Tant, 408 S.C. at
344–45, 759 S.E.2d at 403–04.

On the other hand, the written sentences were subject to multiple interpretations as
it is not clear whether Bordeaux pleaded guilty to first or second degree burglary.
For example, the sentencing sheets indicated Bordeaux was being sentenced for
"Burglary 2nd degree," included the attendant CDR Code for that crime, and
referenced the second degree burglary statute. Yet, the sentencing sheets also
indicated that he was being sentenced "as indicted," and Bordeaux's indictments
referenced only first degree burglary. Moreover, one sentencing sheet had a
sentence of fifteen years crossed out and replaced with the twenty-five year
sentence. If Bordeaux had in fact pleaded guilty to second degree burglary as the
sentencing sheets suggested, his sentence of twenty-five years would have
exceeded the fifteen year maximum for that crime. See § 16-11-312(C)(2).
Therefore, we find the written sentencing pronouncements are ambiguous as they
are susceptible of differing interpretations.1 See Tant, 408 S.C. at 344–45, 759
S.E.2d at 403–04.


1
    It appears the ambiguity may have arisen from the confusion attendant upon the
Therefore, we affirm in part the Court of Appeals' decision as we agree the PCR
judge committed an error of law in ruling the ambiguous sentencing sheets took
precedence over the unambiguous plea transcript. However, we reverse the Court
of Appeals' decision to remand because we find as a matter of law that Bordeaux
pleaded guilty to two counts of first degree burglary and was properly sentenced to
twenty-five years' imprisonment pursuant to his negotiated plea agreement. See
Talley, 371 S.C. at 545, 640 S.E.2d at 883.



AFFIRMED IN PART, REVERSED IN PART.



TOAL, C.J., BEATTY, KITTREDGE and HEARN, JJ., concur.




plea proceeding being conducted simultaneously with Washington's who was
"pleading down" to burglary second.
