                    THE STATE OF SOUTH CAROLINA
                        In The Court of Appeals

            Michael Braxton, #119081, Appellant,

            v.

            South Carolina Department of Corrections, Respondent.

            Appellate Case No. 2017-001964



                   Appeal From The Administrative Law Court
                    The Honorable Harold W. Funderburk, Jr.,
                           Administrative Law Judge


                               Opinion No. 5737
                 Submitted December 2, 2019 – Filed July 1, 2020


                 AFFIRMED IN PART AND REVERSED AND
                        REMANDED IN PART


            Michael Braxton, pro se.

            Christina Catoe Bigelow, Salley W. Elliott, and Annie
            Laurie Rumler, all of the South Carolina Department of
            Corrections, of Columbia, for Respondent.


WILLIAMS, J.: Michael Todd Braxton appeals the order of the administrative
law court (ALC) affirming the South Carolina Department of Corrections's
(SCDC) final decision regarding his sentence. On appeal, Braxton argues the ALC
erred in affirming SCDC's calculation of his sentence because SCDC did not award
him credit for time served while he was (1) on parole, (2) incarcerated in
Tennessee, and (3) awaiting extradition to South Carolina. We affirm in part and
reverse and remand in part.

FACTS/PROCEDURAL HISTORY

On November 17, 1983, Braxton was sentenced to thirty years' incarceration after
pleading guilty to first degree criminal sexual conduct (CSC). Braxton served ten
years and four months of his sentence, and on March 31, 1994, he was
conditionally released to the state of Tennessee on parole. On April 16, 1996,
while on parole in Tennessee, Braxton was arrested for two counts of aggravated
rape. On May 28, 1996, while he was in custody for those arrests, South Carolina
issued a parole violation warrant, and a parole violation hold was placed on
Braxton. Braxton was held in pretrial detention until he was sentenced to
twenty-three years' imprisonment in the custody of the Tennessee Department of
Corrections (TDOC),1 and he was transferred to TDOC on June 1, 1998. On June
8, 1998, South Carolina issued a second parole violation warrant on Braxton.
Braxton completed his sentence in Tennessee on November 2, 2015. Thus, from
the time of his arrest in 1996 until he finished serving his sentence in 2015,
Braxton served approximately nineteen years and five months in Tennessee.
Following his release, beginning November 8, 2015, Braxton was incarcerated in
Anderson County, South Carolina.2 Following an appearance before the Full
Board of the South Carolina Board of Pardons and Parole on January 20, 2016,
Braxton was transferred back into the custody of SCDC with a release date of June
22, 2022.

Braxton timely filed a Step 1 grievance with SCDC, claiming SCDC failed to give
him credit towards his remaining CSC sentence for the time he spent on successful
parole supervision and for the time he spent incarcerated in Tennessee. Braxton's
Step 1 grievance was denied. Braxton then filed a Step 2 grievance with SCDC,
restating the allegations set forth in his Step 1 grievance and also arguing he should
be credited for time served "incarcerated in Tennessee . . . (which includes the time
served during the extradition process)." His Step 2 grievance was subsequently
denied.

Braxton then appealed SCDC's denial of his grievances to the ALC. He argued
SCDC erred in refusing to give him credit (1) for the time he spent on parole, (2)

1
  Braxton was sentenced on May 1, 1998.
2
  It is not clear from our review of the record where Braxton was housed between
the completion of his sentence in Tennessee on November 2, 2015, and his transfer
to Anderson County.
for the time he spent in pretrial detention and incarcerated for unrelated charges in
Tennessee while there were parole violation warrants from South Carolina in
place, and (3) for the time he served for the period he was held in Anderson
County before returning to the custody of SCDC. By order dated August 24, 2017,
the ALC affirmed SCDC's final decision regarding the calculation of Braxton's
sentence. This appeal followed.

ISSUE ON APPEAL

Did the ALC err in affirming SCDC's final decision regarding the calculation of
Braxton's sentence as to the time he served while he was (1) on parole, (2)
incarcerated in Tennessee, and (3) awaiting extradition to South Carolina?

STANDARD OF REVIEW

"In an appeal of the final decision of an administrative agency, the standard of
appellate review is whether the AL[C]'s findings are supported by substantial
evidence." Sanders v. S.C. Dep't of Corr., 379 S.C. 411, 417, 665 S.E.2d 231, 234
(Ct. App. 2008). "Although [the appellate] court shall not substitute its judgment
for that of the AL[C] as to findings of fact, [it] may reverse or modify decisions
which are controlled by error of law or are clearly erroneous in view of the
substantial evidence on the record as a whole." Id. "In determining whether the
AL[C]'s decision was supported by substantial evidence, [the appellate] court need
only find, considering the record as a whole, evidence from which reasonable
minds could reach the same conclusion that the AL[C] reached." Id. This court's
review of the ALC's order must be confined to the record provided on appeal. S.C.
Code Ann. § 1-23-610(B) (Supp. 2019). "Furthermore, the burden is on appellants
to prove convincingly that the agency's decision is unsupported by the evidence."
Waters v. S.C. Land Res. Conservation Comm'n, 321 S.C. 219, 226, 467 S.E.2d
913, 917 (1996).

LAW/ANALYSIS

Section 24-13-40 of the South Carolina Code (Supp. 2019) provides the following
regarding the computation of time served:

             The computation of the time served by prisoners under
             sentences imposed by the courts of this State must be
             calculated from the date of the imposition of the
             sentence. However, when (a) a prisoner shall have given
            notice of intention to appeal, (b) the commencement of
            the service of the sentence follows the revocation of
            probation, or (c) the court shall have designated a
            specific time for the commencement of the service of the
            sentence, the computation of the time served must be
            calculated from the date of the commencement of the
            service of the sentence. In every case in computing the
            time served by a prisoner, full credit against the sentence
            must be given for time served prior to trial and
            sentencing, and may be given for any time spent under
            monitored house arrest. Provided, however, that credit
            for time served prior to trial and sentencing shall not be
            given: (1) when the prisoner at the time he was
            imprisoned prior to trial was an escapee from another
            penal institution; or (2) when the prisoner is serving a
            sentence for one offense and is awaiting trial and
            sentence for a second offense in which case he shall not
            receive credit for time served prior to trial in a reduction
            of his sentence for the second offense.

 (emphasis added).

I.   Time Spent on Parole

Braxton argues the ALC erred in affirming SCDC's refusal to grant him credit for
time served while he was successfully on parole prior to his Tennessee arrest. We
agree.

As an initial matter, we agree with the ALC that section 24-13-40 does not apply to
time spent on parole. Based on a plain reading of the statutory language, we find
section 24-13-40 applies to credit for time served while incarcerated prior to trial
or sentencing, and it does not address whether credit should be granted for time
spent on parole after sentencing. See Original Blue Ribbon Taxi Corp. v. S.C.
Dep't of Motor Vehicles, 380 S.C. 600, 608, 670 S.E.2d 674, 678 (Ct. App. 2008)
("Words in the statute should be given their plain and ordinary meaning without
resulting to forced or subtle construction."). However, although section 24-13-40
does not address credit for time served while on parole, our supreme court
addressed the status of a parolee in Sanders v. MacDougall, stating, "A prisoner
upon release on parole continues to serve his sentence outside the prison walls.
The word parole is used in contra-distinction to suspended sentence and means a
leave of absence from prison during which the prisoner remains in legal custody
until the expiration of his sentence." 244 S.C. 160, 163, 135 S.E.2d 836, 837
(1964) (emphases added). The court further provided, "An order revoking parole
simply restores a defendant to the status he would have occupied had this form of
leniency never been extended to him." Id. at 164, 135 S.E.2d at 837.

Following his CSC conviction and imprisonment in South Carolina, Braxton was
successfully paroled from March 31, 1994, until he was arrested in Tennessee on
April 16, 1996. Because Braxton continued to serve his sentence outside the
prison walls and remained in legal custody while he was on parole, we find he
should receive credit towards the remainder of his CSC sentence for the time he
was on parole. See id. at 163, 135 S.E.2d at 837 (providing that a prisoner on
parole remains in the legal custody of the South Carolina Probation, Parole, and
Pardon Services (DPPP) Board and continues to serve his sentence outside the
prison walls). Accordingly, we reverse and remand this issue to the ALC to
recalculate Braxton's sentence such that he receives credit for the time he served
while on parole.3

II. Time Spent Incarcerated in Tennessee

Braxton argues the ALC erred in refusing to award him credit for time served
before and after he was sentenced on charges in Tennessee because he was in the
constructive custody of South Carolina during those periods as a result of the
issued parole violation warrants. We disagree.

Initially, we note we disagree with the ALC's reliance on section 24-13-40 to
affirm SCDC's refusal to award Braxton credit for the time he was imprisoned in
Tennessee because that section applies to credit for time served prior to trial and
sentencing and Braxton was imprisoned in Tennessee after his trial and sentencing
for his conviction in South Carolina. See § 24-13-40 (providing for the
computation of time served by prisoners so that full credit against the sentence is
given for time served prior to trial and sentencing); see also Blue Ribbon Taxi, 380


3
  On appeal, Braxton also argues the DPPP policies and SCDC policies mandate
that he be given credit for the time he spent on parole. However, we decline to
address this argument as our holding is dispositive of this claim. See Futch v.
McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598
(1999) (providing an appellate court need not address remaining issues on appeal
when resolution of a prior issue is dispositive).
S.C. at 608, 670 S.E.2d at 678 ("Words in the statute should be given their plain
and ordinary meaning without resulting to forced or subtle construction.").

Nevertheless, we agree with the ALC that Braxton is not entitled to credit for the
time he served following his arrest and conviction in Tennessee. "[A] foreign
jurisdiction is without authority to modify or place conditions on a sentence
imposed in South Carolina." Robinson v. State, 329 S.C. 65, 69, 495 S.E.2d 433,
435 (1998). "Therefore, if a second jurisdiction imposes on a [prisoner] a sentence
to run concurrently with the previously imposed sentence from another
jurisdiction, it is the responsibility of the second jurisdiction to effectuate its
concurrent sentence and thus ensure the [prisoner] receives credit for time served
in both jurisdictions." Id. "To achieve this result, the second jurisdiction must
transfer custody of the [prisoner] to the first jurisdiction." Id. "A [prisoner] may
also receive credit for time served in another jurisdiction by notifying [SCDC] that
he is unable to personally submit to South Carolina custody to commence the
service of his sentence." Id. at 71, 495 S.E.2d at 436. "Upon such notification,
[SCDC] will place a detainer on the [prisoner]." Id. "While the [prisoner] is
subject to a South Carolina detainer, he is constructively in South Carolina
custody." Id. at 71, 495 S.E.2d 436–37. "As a result, a [prisoner] will receive
credit for time spent in another jurisdiction while subject to a South Carolina
detainer." Id. at 71, 495 S.E.2d at 437.

In Robinson, the prisoner was lawfully released on an appeal bond for a South
Carolina conviction. 329 S.C. at 66, 495 S.E.2d at 434. While out on bond, he
was convicted and concurrently sentenced for several unrelated federal charges in
Illinois. Id. at 66–67, 495 S.E.2d at 434. The prisoner's South Carolina conviction
was affirmed, and because the federal court imposed a sentence to run concurrently
with his South Carolina sentence, he sought to obtain credit in South Carolina for
the time he served in federal custody. Id. at 67, 70, 495 S.E.2d at 434, 436. Our
supreme court found the federal court could not modify or place conditions on his
previously imposed South Carolina sentence and indicated it should have delivered
the prisoner into South Carolina custody for the concurrent sentence to be satisfied.
Id. at 70–71, 495 S.E.2d at 436. In the instant case, there is no indication in the
record that Braxton's Tennessee sentence was set to run concurrently with his
South Carolina sentence, and Braxton was not transferred back to South Carolina
in order to ensure he received credit for time served in both Tennessee and South
Carolina. See Robinson, 329 S.C. at 69, 495 S.E.2d at 435 ("[A] foreign
jurisdiction is without authority to modify or place conditions on a sentence
imposed in South Carolina."); id. ("Therefore, if a second jurisdiction imposes on a
[prisoner] a sentence to run concurrently with the previously imposed sentence
from another jurisdiction, it is the responsibility of the second jurisdiction to
effectuate its concurrent sentence and thus ensure the [prisoner] receives credit for
time served in both jurisdictions.").

Although Robinson additionally held that credit for time served may be received
for time served in another jurisdiction while a prisoner is subject to a South
Carolina detainer, we find Robinson distinguishable from Braxton's case even
though Braxton was under a South Carolina parole violation warrant. See id. at 71,
495 S.E.2d at 436–37. Unlike in Braxton's case, the federal court in Robinson
intentionally imposed a sentence that was to run concurrently with Robinson's
South Carolina sentence. Id. at 66–67, 495 S.E.2d at 434. Further, in
Delahoussaye v. State, our supreme court declined to use Robinson to credit a
prisoner for time served in another jurisdiction while subject to a South Carolina
detainer when the prisoner was an escapee from a South Carolina institution. 369
S.C. 522, 526–28, 633 S.E.2d 158, 160–62. Because a prisoner released on parole
has an uncontested conviction, remains in legal custody, and continues to serve his
sentence while outside the prison walls, we find a violation of parole places
Braxton in a status more akin to an escapee, as in Delahoussaye, than a prisoner
lawfully released on an appeal bond, as in Robinson. Moreover, the court in
Delahoussaye also highlighted the fact that the prisoner could "not assert that his
federal sentence was intended to run concurrently with his South Carolina
sentence." Id. at 528, 633 S.E.2d at 161–62. Thus, we find it is also relevant for
this determination that there is no indication in the record that Braxton's Tennessee
sentence was intended to run concurrently with his South Carolina sentence.

Based on the foregoing, we find Braxton is not entitled to credit for time served in
Tennessee even though he was under a South Carolina parole violation warrant.4


4
  Braxton also argues his due process rights were violated because he did not
receive a probable cause or revocation hearing while incarcerated in Tennessee.
Based upon our review of the record, we find this issue is not preserved for our
review as it was neither raised to nor ruled upon by the ALC. See Brown v. S.C.
Dep't of Health & Envtl. Control, 348 S.C. 507, 519, 560 S.E.2d 410, 417 (2002)
("[I]ssues not raised to and ruled on by the AL[C] are not preserved for appellate
consideration."); Al-Shabazz v. State, 338 S.C. 354, 379, 527 S.E.2d 742, 755
(2000) ("[The record] must include all that is necessary to enable the [appellate]
court to decide whether the AL[C] made an erroneous or unsubstantiated ruling.");
see also § 1-23-610(B) ("The review of the [ALC's] order must be confined to the
record.").
III.     Time Spent Awaiting Extradition to South Carolina

  Braxton argues the ALC erred in finding unpreserved his argument that SCDC
  erred in refusing to give him credit for the time period he was held in Anderson
  County. We disagree.

  Braxton argued in his Step 2 grievance that he should receive credit for the time he
  was incarcerated in Tennessee, and, in parenthesis, noted "this includes time served
  during the extradition process." We agree with the ALC that this language did not
  specifically bring the issue of the time Braxton was held in Anderson County,
  South Carolina before the ALC. See Kiawah Resort Assocs. v. S.C. Tax Comm'n,
  318 S.C. 502, 505, 458 S.E.2d 542, 544 (1995) (providing that the appellate court
  will not consider issues that were not raised to and ruled upon by the
  administrative agency). Furthermore, we find Braxton failed to produce a
  sufficient record for this court to review this issue as Braxton did not include his
  final brief to the ALC in the record. See Al-Shabazz, 338 S.C. at 379, 527 S.E.2d
  at 755 ("[The record] must include all that is necessary to enable the [appellate]
  court to decide whether the AL[C] made an erroneous or unsubstantiated ruling.");
  see also § 1-23-610(B) ("The review of the [ALC's] order must be confined to the
  record."). Thus, we affirm as to this issue.

  CONCLUSION

  Based on the foregoing, the ALC's order is

  AFFIRMED in part and REVERSED and REMANDED in part.5

  HUFF and MCDONALD, JJ., concur.




  5
       We decide this case without oral argument pursuant to Rule 215, SCACR.
