                        THE STATE OF SOUTH CAROLINA 

                             In The Supreme Court 


               The State, Respondent,

               v.

               Charvus Tarrel Nesbitt, Appellant.

               Appellate Case No. 2012-212222



                            Appeal From Spartanburg County 

                           Roger L. Couch, Circuit Court Judge 



                                 Opinion No. 27477 

                    Heard November 19, 2014 – Filed January 14, 2015 



                             AFFIRMED AS MODIFIED


               Kenneth Philip Shabel, of Campbell & Shabel, LLC, of
               Spartanburg, for Appellant.

               Attorney General Alan McCrory Wilson, Chief Deputy
               Attorney General John W. McIntosh, Senior Assistant
               Deputy Attorney General Donald J. Zelenka, Senior
               Assistant Attorney General W. Edgar Salter, III, all of
               Columbia and Solicitor Barry Joe Barnette, of
               Spartanburg, for Respondent.


CHIEF JUSTICE TOAL:              Charvus Nesbitt (Appellant) appeals the circuit
court's finding that he entered knowing and voluntary Alford1 pleas as to three of
1
    North Carolina v. Alford, 400 U.S. 25 (1970).
four charges listed in a negotiated plea agreement. On appeal, Appellant argues
that his negotiated plea agreement was a "package deal," and that because his plea
for one of the charges was invalid, his pleas for the remaining three charges were
likewise invalid. We affirm as modified.

                        FACTS/PROCEDURAL BACKGROUND
       On December 7, 2010, Appellant and three co-conspirators arranged to
purchase marijuana from Daniel Landrum (the victim) at the victim's mobile home,
intending instead to rob the victim. While inside the mobile home, Appellant shot
the victim eight times, killing him, and one of the bullets hit the victim's sister in
the neck. The police arrested Appellant and his co-conspirators, and a grand jury
subsequently indicted Appellant for murder, possession of a firearm during the
commission of a violent crime, attempted murder, and attempted armed robbery.

      Throughout the pre-trial proceedings, Appellant consistently maintained that
one of his co-conspirators shot the victim, and that Appellant was merely present
during the shooting. Nonetheless, Appellant elected to enter an Alford plea.2

       During the plea colloquy, the State informed the circuit court that there were
three indictments pending against Appellant, including a two-count indictment for
murder and possession of a firearm during a violent crime. The State listed the
four crimes covered in the indictments and informed the circuit court that
Appellant and the State negotiated the plea in exchange for the State's
recommendation of a forty-year sentence. Appellant's attorney acknowledged that
the State correctly summarized the pending charges and negotiated sentence.

       However, at various points in the hearing, the circuit court incorrectly stated
that Appellant was before the court on three charges. Omitting the firearm charge
entirely, the court outlined the possible sentences for murder, attempted murder,
and attempted armed robbery, and asked Appellant if he understood those potential
sentences.3 The circuit court also told Appellant that the court had the right to
2
  See State v. Ray, 310 S.C. 431, 435, 427 S.E.2d 171, 173 (1993) ("The United
States Supreme Court held in Alford that an accused may consent voluntarily,
knowingly, and understandingly to the imposition of a prison sentence although
unwilling to admit culpability, or even if the guilty plea contains a protestation of
innocence, when the accused intelligently concludes that his interests require a
guilty plea and the evidence strongly supports his guilt of the offense charged.").
3
    Both parties agree that the circuit court properly referenced the charges for
accept or reject the plea negotiations and the sentencing recommendation, and
informed Appellant that, if the court did not accept the negotiations, Appellant
could withdraw his plea.

       The circuit court then asked Appellant whether he was satisfied with his
attorney's representation; whether he pled no contest; whether he entered the plea
of his own free will; and whether he understood the constitutional rights he was
giving up by pleading no contest, including the right to remain silent and the right
to a jury trial. Appellant answered yes to each of the questions. The circuit court
also asked whether anyone had promised Appellant anything or threatened him to
acquire his guilty plea, and whether Appellant was under the influence of alcohol
or drugs. Appellant answered no to both of the questions.

      At the conclusion of its discussion with Appellant, the circuit court found
that Appellant entered his pleas freely and voluntarily. Therefore, the court
accepted the negotiated sentence, and sentenced Appellant to forty years'
imprisonment for murder, thirty years' imprisonment for attempted murder, and
twenty years' imprisonment for attempted armed robbery, the sentences to run
concurrently.

      Appellant then exited the courtroom. Immediately after Appellant's
departure, the following discussion occurred:

      [APPELLANT'S
      ATTORNEY]:              Wait one second.

      [THE SOLICITOR]: There's a second count, [possession of a
                       firearm during the commission of a violent
                       crime].

      THE COURT:              Beg your pardon?

      [THE SOLICITOR]: The pistol count.

      THE COURT:              I didn't see that one in there.

      DEPUTY CLERK:           There's another sentencing sheet under that
                              one.


murder, attempted murder, and attempted armed robbery during the plea colloquy.
      THE COURT:	             Oh, I see it.

      [THE SOLICITOR]: 	 That's up to five years, Your Honor.

      THE COURT: 	            You want [Appellant] to come back in to get
                              that? I'll run it concurrent.

      [APPELLANT'S
      ATTORNEY]:	             Yes, sir. Thank you.

      THE COURT:	             It won't affect the sentence.

      [APPELLANT'S
      ATTORNEY]:	             Thank you, Your Honor.

      THE COURT: 	            All right, thank you very much.

      [THE SOLICITOR]: 	 Thank you, Your Honor.

      THE COURT: 	            It is five years, run concurrent.

Thus, although Appellant was never brought back into the courtroom to enter a
plea on the firearm charge, the circuit court nonetheless "accepted" Appellant's
plea in his absence and sentenced him to an additional five years' imprisonment, to
run concurrently with his other three sentences.4

       Appellant made a motion for reconsideration or new trial, as well as an
amended motion for reconsideration or new trial, alleging, inter alia, that he was
neither properly questioned by the court regarding the firearm charge, nor even
present when the court imposed the sentence for that charge. Thus, Appellant
contended that his plea as to the firearm charge was invalid, and that he did not
knowingly and voluntarily give up his constitutional rights with respect to that
particular charge. Appellant further asserted that his negotiated plea agreement

4
  Both parties agree the court erred in accepting Appellant's plea to the firearm
charge in Appellant's absence. See Boykin v. Alabama, 395 U.S. 238, 243 n.5
(1969) (stating that such a plea is void because it is not an intentional
relinquishment of a known constitutional right or privilege); cf. Dover v. State, 304
S.C. 433, 434–35, 405 S.E.2d 391, 392 (1991) (finding that a defendant's guilty
plea was not knowing and voluntary when the trial court did not discuss the
maximum allowable sentences for the crimes with the defendant).
was a "package deal," and that because one plea was invalid, the entire negotiated
plea was unenforceable.

       Ultimately, the circuit court found that the "plea deal that [Appellant] agreed
to on the record was forty (40) years for murder, attempted murder, and attempted
armed robbery." Further, the court found that Appellant "was never questioned by
the [c]ourt about his plea to the offense of possession of a weapon during the
commission of a violent crime," and did not waive his right to be present for the
discussion of that charge. Thus, the court invalidated Appellant's five-year
sentence for the firearm charge. However, the circuit court held that because the
firearm charge "was not a part of the negotiated plea[,] . . . [t]his decision has no
bearing on the validity of the plea given by [Appellant] on the other three charges."
(Citing Phillips v. State, 281 S.C. 41, 314 S.E.2d 313 (1984) (finding that
invalidating a defendant's guilty plea on one charge does not affect the validity of a
guilty plea for a different charge taken at the same hearing)). The court stated that
the firearm charge was "reopened and subject to prosecution by the State."5

    Appellant appealed, and we certified the appeal pursuant to Rule 204(b),
SCACR.

                                        ISSUE
        Whether a negotiated plea agreement involving multiple charges is
        invalid when the defendant does not enter knowing and voluntary
        pleas for all of the charges contained in the agreement?

                                STANDARD OF REVIEW
       "In criminal cases, the appellate court sits to review errors of law only."
State v. Jacobs, 393 S.C. 584, 586, 713 S.E.2d 621, 622 (2011) (citation omitted).
"Appellate courts are bound by fact findings in response to motions preliminary to
trial when the findings are supported by the evidence and not clearly wrong or
controlled by error of law." State v. Amerson, 311 S.C. 316, 320, 428 S.E.2d 871,
873 (1993).

                                      ANALYSIS
        In general, a defendant's guilty plea is more than an admission of conduct;

5
    On March 27, 2013, the State nolle prossed the firearm charge.
rather, it is a conviction that can deprive him of his liberty or other constitutionally
protected interests. Mabry v. Johnson, 467 U.S. 504, 507 (1984); Boykin, 395 U.S.
at 242. Therefore, the entry of a guilty plea implicates the protections of the Due
Process Clause of the federal and state constitutions. See U.S. Const. amend. XIV
(providing that states may not deprive a person of life, liberty, or property without
due process of law); S.C. Const. art. I, § 3 (same).

       Among these protections, the Due Process Clause requires that a defendant
enter his guilty plea voluntarily, knowingly, and intelligently. Anderson v. State,
342 S.C. 54, 57, 535 S.E.2d 649, 651 (2000). Thus, prior to receiving a
defendant's guilty plea, the court must advise the defendant of "the nature and
crucial elements of the charges, the consequences of the plea [including any
maximum and minimum penalties for the crimes], and the constitutional rights he
is waiving" by pleading guilty. Rollison v. State, 346 S.C. 506, 511, 552 S.E.2d
290, 292 (2001) (citing Anderson, 342 S.C. at 57, 535 S.E.2d at 651); see also
Dover v. State, 304 S.C. 433, 434, 405 S.E.2d 391, 392 (1991) (stating that a
defendant knowingly and voluntarily pleads guilty when he fully understands the
consequences of his plea and the charges against him).

       Here, the State concedes that the circuit court erred in failing to properly
question and advise Appellant of his rights with respect to the firearm charge.
However, Appellant further argues that, in invalidating the firearm sentence, the
circuit court simultaneously invalidated a portion of Appellant's negotiated plea
agreement, thus rendering all other parts of the plea agreement—namely,
Appellant's remaining three pleas—unenforceable as well. Cf. Puckett v. United
States, 556 U.S. 129, 137 (2009) ("When a defendant agrees to [a] plea bargain, the
Government takes on certain obligations. If those obligations are not met, the
defendant is entitled to seek a remedy which might in some cases be rescission of
the agreement, allowing him to take back the consideration he has furnished, i.e.,
to withdraw his plea.").

        When the terms and obligations set forth in a plea agreement are not
fulfilled, appellate courts may consider whether that failure constitutes harmless
error. Id. at 141 (stating that "breach of a plea deal is not a 'structural error,'" and
thus is subject to harmless error analysis).6 Here, Appellant received the forty-year

6
  See also Puckett, 556 U.S. at 141 (explaining that a "plea breach does not
necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for
determining guilt or innocence; it does not defy analysis by harmless-error
standards by affecting the entire adjudicatory framework; and the difficulty of
sentence which he negotiated,7 and further received the benefit of having one of the
charges against him essentially dropped, as his criminal record will only reflect
three convictions and not four. Therefore, to the extent there was error, Appellant
has suffered no prejudice. See id. at 141–42 ("The defendant whose plea
agreement has been broken by the Government will not always be able to show
prejudice, either because he obtained the benefits contemplated by the deal anyway
(e.g., the sentence that the prosecutor promised to request) or because he likely
would not have obtained those benefits in any event . . . ." (emphasis added)).

       Moreover, any possible error is harmless beyond a reasonable doubt. Cf.
Joseph v. State, 351 S.C. 551, 560, 571 S.E.2d 280, 284 (2002) (rejecting the
defendant's argument that his second guilty plea was involuntary and unknowing
because it was part of a "package deal," after the PCR court invalidated the first of
his two guilty pleas, and finding that "Petitioner was properly advised and
sentenced on the murder charge. Further, [P]etitioner failed to show he was
induced to plead guilty or that he would have not pled guilty to murder but for the
[invalidated] grand larceny charge"), overruled on other grounds by State v.
Gentry, 363 S.C. 93, 610 S.E.2d 494 (2005); Roscoe v. State, 345 S.C. 16, 21, 546
S.E.2d 417, 419 (2001) (rejecting the defendant's argument that "all of his pleas
[we]re affected by the [circuit court's] erroneous advice concerning the [maximum
sentence for the] armed robbery charge," because the defendant "was properly
advised and sentenced on the [remaining] charges, and he fail[ed] to demonstrate
his pleas to these offenses were in any way affected by the mis-advice concerning
armed robbery").

assessing the effect of the error is no greater with respect to plea breaches . . . than
with respect to other procedural errors at sentencing, which are routinely subject to
harmlessness review" (internal citations omitted) (internal quotation marks
omitted)).
7
  We note that the Due Process Clause is not implicated until the defendant enters
his guilty plea, and that plea is accepted by the court. See Mabry, 467 U.S. at 507.
Therefore, if the defendant enters into a negotiated plea agreement prior to the
court's acceptance of his guilty plea, that agreement is a mere executory promise
that, standing alone, has no constitutional significance, as it binds neither the
government nor the defendant. Id.; Reed v. Becka, 333 S.C. 676, 685–87, 511
S.E.2d 396, 401–02 (Ct. App. 1999) (citations omitted). Only after the court
accepts the defendant's guilty plea will the negotiated plea agreement become
operative. Reed, 333 S.C. at 687, 511 S.E.2d at 402 (citation omitted).
                                  CONCLUSION

     For the foregoing reasons, the circuit court's decision is

AFFIRMED AS MODIFIED.

    BEATTY, HEARN, JJ. and Acting Justice James E. Moore, concur.
PLEICONES, J., concurring in result only.
