       THE STATE OF SOUTH CAROLINA
           In The Court of Appeals

Charles Eugene Carpenter, Appellant,

v.

South Carolina Department of Corrections and the State
of South Carolina, Respondents.

Appellate Case No. 2017-002577



            Appeal From Richland County
          Robert E. Hood, Circuit Court Judge


                  Opinion No. 5762
      Heard June 3, 2020 – Filed August 19, 2020


 AFFIRMED IN PART, VACATED IN PART, AND
               REMANDED


Desa Ballard and Harvey M. Watson, III, both of Ballard
& Watson, Attorneys at Law, of West Columbia, for
Appellant.

Damon Christian Wlodarczyk, of Riley Pope & Laney,
LLC, of Columbia, for Respondent South Carolina
Department of Corrections.

Attorney General Alan McCrory Wilson and Senior
Assistant Deputy Attorney General Megan Harrigan
Jameson, both of Columbia, for Respondent the State.
HILL, J.: Charles Carpenter alleges he is being unlawfully held in prison because
his sentences for conspiracy in trafficking cocaine and conspiracy in trafficking
marijuana have expired. He raised these allegations in two separate civil actions: a
petition for writ of habeas corpus and a declaratory judgment action. After a bench
trial, the circuit court ruled Carpenter was procedurally barred from raising his
allegations in a petition for a writ of habeas corpus, and even if not barred, his
allegations lacked merit. The circuit court therefore granted declaratory judgment
in favor of the South Carolina Department of Corrections (SCDC). Carpenter
appeals these findings and also claims the circuit court erred in failing to rule on his
declaratory judgment claims against the State and by failing to disclose a
disqualifying bias in favor of the State. We affirm in part, vacate in part, and remand.

                                     I. FACTS

After a state-wide grand jury investigation, Carpenter pled guilty in April 1990 to
conspiracy to traffic cocaine and conspiracy to traffic marijuana. The plea
agreement stipulated that if Carpenter cooperated with the State's investigation, the
State would ask the trial court to run the sentences for his two convictions
concurrently. In June 1990, the trial court sentenced Carpenter to twenty-five years'
imprisonment for the offense of conspiracy of trafficking in cocaine. At the
sentencing hearing, the State alleged Carpenter had not complied with the terms of
his plea agreement. The trial court ruled it was holding the sentence for conspiracy
to traffic marijuana in abeyance pending a later sentencing hearing regarding
Carpenter's alleged non-cooperation.

When Carpenter's sentencing hearing was reconvened in August 1990, the State
presented evidence Carpenter had not cooperated with the State and therefore
breached the plea agreement. The trial court found "beyond absolutely any doubt"
the State had lived up to their agreement, but Carpenter had failed to do so. The trial
court sentenced Carpenter to twenty-five years' imprisonment for conspiracy to
traffic marijuana and ordered the sentence run consecutively to Carpenter's sentence
for conspiracy to traffic cocaine imposed in June 1990. In February 1992, the trial
court issued an order affirming the August 9, 1990 consecutive sentence for
conspiracy to traffic marijuana and divesting itself of jurisdiction over the matter.

Carpenter's convictions and sentences were affirmed on direct appeal. Carpenter
then filed several post-conviction relief (PCR) applications, which were denied. In
1993, Carpenter filed a petition for writ of habeas corpus, which was also denied.
This denial was affirmed on direct appeal.
Upon Carpenter's remand to the custody of SCDC, his SCDC offender summary
displayed his "maxout" date as November 23, 2016. A few years later, his summary
reflected he was eligible for work release and noted he had earned a total of 700
good-time days and 102 earned work credits. In 1997, Carpenter's sentence was
changed in the offender summary to indicate it was not parole eligible. Throughout
the 1990s and early 2000s, Carpenter's maxout date fluctuated, but it was never
designated as later than 2019. During these fluctuations, his offender summary
consistently stated his total sentence was fifty years and his sentences were to be
served consecutively. In 2011, Carpenter's projected maxout date changed to April
7, 2040. A note at the bottom of the offender summary stated "Inmate's sentence
corrected to show 25 yrs mandatory minimum [day]-for-day sentence per statute . .
. ."

Carpenter wrote a letter to SCDC asking why his maxout date had changed to 2040.
SCDC notified Carpenter his sentence was modified on June 24, 2011, as a result of
an audit because pursuant to the statute he was sentenced under in 1990, Carpenter
was required to serve two mandatory minimum sentences for "a total of 50 years that
had to be served day-for-day." There is no evidence in the record showing Carpenter
ever received a hearing on the issue of the change to his maxout date.

On September 8, 2013, Carpenter filed an SCDC "Inmate Grievance Form Step 1,"
stating his good time and earned work credits had been removed from his SCDC
record, and if they were not restored, he would serve more time in prison than the
law required. His grievance was denied. Carpenter then completed an SCDC
"Inmate Grievance Form Step 2," arguing SCDC had misinterpreted the law, and as
a result, he was being held past his maxout date. The grievance was denied in March
2013. The denial letter informed Carpenter he could appeal this decision to the
Administrative Law Court (ALC). There is no evidence in the record that Carpenter
pursued an appeal of this grievance denial.

Carpenter later hired a lawyer to investigate the change in his maxout date. The
lawyer's correspondence with SCDC revealed that in 2010, an inmate named Carlos
Gonzales wrote the South Carolina Supreme Court alleging he was being held past
his SCDC maxout date. When the supreme court asked SCDC to respond to
Gonzales' letter, SCDC conducted an internal audit of all drug-trafficking offenders
who were sentenced to twenty-five years or more before 1996. As a result of the
audit, SCDC discovered that in the early 1990s, its record system was not
programmed "to capture the 25 years day-for-day," and as a result, some inmates'
sentences "were not being reflected correctly." Carpenter was one of those inmates,
and his sentences were "updated" to mandatory minimum sentences, causing the
spike in Carpenter's maxout date to 2040. About four other inmates' sentences were
"updated" in the same way.

Other inmates whose sentences were audited had already been released, including
Carpenter's co-conspirator, Bobby Gene Horne. Although sentenced to twenty-five
years under the same statute as Carpenter, Horne received good-time, work, and
educational credits. In an email to Carpenter's attorney, SCDC indicated that if
Carpenter's sentence had not been entered as "day-for-day" as a result of the audit,
he would have received the same type of credits as Horne, and due to Carpenter's
consecutive sentence, he would have been released in 2015, fourteen years after
Horne.

In this habeas corpus petition and declaratory judgment action, Carpenter alleges: 1)
the trial court's jurisdiction to sentence Carpenter ended when the trial court accepted
Carpenter's plea and sentenced him in June 1990; therefore, the trial court had no
jurisdiction to impose the consecutive twenty-five sentence on Carpenter in August
1990, and that sentence is void; 2) SCDC violated Carpenter's due process rights by
denying him notice and a hearing when it changed his sentence to be non-parolable,
removed his good-time and work credits, and changed his maxout date to 2040; and
3) SCDC violated Carpenter the right to equal protection under the law when it
released Horne in 2001 due to the good-time and work credits he had earned but
denied Carpenter's right to the same credits and credit eligibility. Carpenter made
these three allegations in both his declaratory judgment cause of action and his
petition for a writ of habeas corpus. His prayer for relief included: his immediate
release from SCDC custody; a declaration that the trial court's jurisdiction to
sentence him evaporated after the trial court sentenced him on the cocaine trafficking
conspiracy charge in June 1990; and a declaration that SCDC violated his due
process and equal protection rights.

SCDC and the State moved to dismiss Carpenter's actions. In April 2017, retired
Chief Justice Jean H. Toal, sitting as a circuit judge, heard the motions to dismiss.
Both the State and SCDC argued Carpenter's claims were not appropriate for habeas
corpus relief and should have been brought through the Uniform Post-Conviction
Relief Procedure Act (PCR Act), S.C. Code Ann. §§ 17-27-10 to -120 (2014 & Supp.
2019), or through SCDC's grievance procedure. Judge Toal denied the State's and
SCDC's motions to dismiss, finding the circuit court had jurisdiction over habeas
petitions and over declaratory judgment claims. Judge Toal also ruled the PCR Act
was not the exclusive method for challenging an unlawful sentence and declaratory
relief was available under the circumstances to resolve Carpenter's legal disputes.
In June 2017, Judge Robert E. Hood held a bench trial on Carpenter's habeas corpus
and declaratory judgment actions. At the trial, Carpenter contended the trial court
did not have jurisdiction to bifurcate Carpenter's sentencing proceeding, and
therefore, the proceeding that occurred on August 9, 1990, was not legal and could
not result in a valid sentence. Carpenter asserted he had never raised the issue of
whether the trial court had jurisdiction to sentence him as to his trafficking in
marijuana charge at the August 9, 1990 hearing in any previous PCR action.

Carpenter next argued SCDC changed his sentence without notice, which violated
his right to due process. Carpenter asserted the appropriate remedy for the due
process violation was for the change in his maxout date to be vacated. Carpenter
alleged SCDC violated his due process rights by removing his good-time and work
credits, changing his parole eligibility, and increasing his maxout date to 2040
without notice and a hearing and by treating him disparately from other similarly
convicted prisoners, specifically Horne. Carpenter further argued he was entitled to
immediate release from SCDC custody due to SCDC's multiple violations of his due
process rights.

The State responded Carpenter was procedurally barred from raising an issue related
to the validity of his sentence in the current habeas petition; instead, such a challenge
must be raised through PCR. The State also asserted Carpenter must demonstrate
he has exhausted his PCR remedies to be eligible for habeas relief. Finally, the State
claimed only the South Carolina Supreme Court has jurisdiction to hear a petition
for a writ of habeas corpus if it is found to be procedurally barred in circuit court.

Judge Hood issued two orders, one in favor of SCDC on Carpenter's declaratory
judgment claims and the second dismissing Carpenter's petition for habeas corpus
against the State. Carpenter filed a Rule 59(e), SCRCP motion to reconsider both
orders and asserted Judge Hood failed to rule on his declaratory judgment claims as
to the validity of his original sentence. The Rule 59(e), SCRCP motion was denied.
Carpenter filed the present appeal. At the same time, he filed his petition for a writ
of habeas corpus and a request to certify this appeal with the South Carolina Supreme
Court. See Carpenter v. SCDC, Case No. 2017-002577; Carpenter v. SCDC, Case
No. 2017-002582. On June 12, 2018, the supreme court issued an order denying
Carpenter's request to entertain his petition for a writ of habeas corpus in the court's
original jurisdiction. Carpenter v. SCDC, S.C. Sup. Ct. Order dated June 12, 2018.
The supreme court also denied Carpenter's request to certify this appeal. Id.



                                  II.    DISCUSSION
This appeal involves appraisal of the framework under which an inmate may
challenge the validity of his sentence and SCDC's interpretation and administration
of that sentence. We outline this process in the hope that inmates may be able to
avoid procedural ping pong of their claims and undertake the most efficient and
effective method to receive relief to which they may be eligible.

   A. Whether Carpenter Raised PCR Claims

Carpenter alleges he is being held unlawfully in SCDC custody past the expiration
of his valid sentence for several reasons. We find Carpenter's claims are PCR claims
and should have been raised as such.

South Carolina's PCR Act provides the legal mechanism for:

            (A)    Any person who has been convicted of, or
                   sentenced for, a crime and who claims:

              (1) That the conviction or the sentence was in violation
                  of the Constitution of the United States or the
                  Constitution or laws of this State;

              (2) That the court was without jurisdiction to impose
                  sentence;

              (3) That the sentence exceeds the maximum authorized
                  by law;

              (4) That there exists evidence of material facts, not
                  previously presented and heard, that requires
                  vacation of the conviction or sentence in the interest
                  of justice;

              (5) That his sentence has expired, his probation, parole
                  or conditional release unlawfully revoked, or he is
                  otherwise unlawfully held in custody or other
                  restraint; or

              (6) That the conviction or sentence is otherwise subject
                  to collateral attack upon any ground of alleged error
                  heretofore available under any common law,
                  statutory or other writ, motion, petition, proceeding
                  or remedy; may institute, without paying a filing
                   fee, a proceeding under this chapter to secure relief.
                   Provided, however, that this section shall not be
                   construed to permit collateral attack on the ground
                   that the evidence was insufficient to support a
                   conviction.

            (B)    This remedy is not a substitute for nor does it affect
                   any remedy incident to the proceedings in the trial
                   court, or of direct review of the sentence or
                   conviction. Except as otherwise provided in this
                   chapter, it comprehends and takes the place of all
                   other common law, statutory or other remedies
                   heretofore available for challenging the validity of
                   the conviction or sentence. It shall be used
                   exclusively in place of them.

S.C. Code Ann. § 17-27-20 (2014).

In Gibson v. State, 329 S.C. 37, 40–41, 495 S.E.2d 426, 428 (1998), the South
Carolina Supreme Court held:

            The availability of habeas corpus has been severely
            limited by the [PCR Act]. The [PCR] Act "takes the place
            of all other common law, statutory or other remedies
            heretofore available for challenging the validity of the
            conviction or sentence. It shall be used exclusively in
            place of them." S.C. Code Ann. § 17-27-20([B]) (1976).
            Thus, this Act supersedes and encompasses the habeas
            corpus procedure provided by statute.

The Gibson court further found, "Habeas corpus is available only when other
remedies, such as PCR, are inadequate or unavailable," id. at 41, 495 S.E.2d at 428,
and "[p]rocedurally, a petitioner seeking habeas corpus must first exhaust all
available PCR remedies." Id. at 42, 495 S.E.2d at 428. In defining "exhaustion,"
the court found: "Exhaustion includes filing of an application, the rendering of an
order adjudicating the issues, and petitioning for, or knowingly waiving, appellate
review. Further, petitioner must allege sufficient facts to show why other remedies,
such as PCR, are unavailable or inadequate." Id. When a petitioner has filed a
petition for a writ of habeas corpus without first exhausting his PCR remedies, the
court may construe his petition as an application for PCR. Id. at 41, 495 S.E.2d at
428.
In Al-Shabazz v. State, 338 S.C. 354, 368, 527 S.E.2d 742, 749 (2000), the South
Carolina Supreme Court specifically examined subsection 17-27-20(A)(5) of the
PCR Act, the provision for when "the applicant asserts he has fully served a valid
sentence and now must be released," noting its inclusion in the PCR Act "reflects
the fact that the [PCR Act] replaced the petition for a writ of habeas corpus, which
an inmate would have used to make such claims in the past." Id. at 368, 527 S.E.2d
742, 749.

The Al-Shabazz court also found an application for PCR was not the appropriate
method for raising sentencing credits issues. Id. at 366–68, 527 S.E.2d at 748–49.
Rather, inmates must raise those issues first through SCDC's internal grievance
process and then, if the decision involves the removal of earned sentencing credits,
through an appeal to the ALC. Id; see also Howard v. S.C. Dep't of Corr., 399 S.C.
618, 629–30, 733 S.E.2d 211, 217–18 (2012) (holding inmates have a protected
liberty interest in earned sentencing credits and are entitled to judicial review of a
decision resulting in the removal of those credits). However, the Al-Shabazz court
found there was an exception to this statutorily-mandated procedure: when the
sentencing credit issue is alleged to have caused an inmate to remain imprisoned past
the expiration of his lawful sentence, the claim is appropriately raised in a PCR
application under § 17-27-20(A)(5). 338 S.C. at 368, 527 S.E.2d at 749.

Carpenter alleges he is being held unlawfully in SCDC custody past the expiration
of his valid sentence under two theories. First, he alleges his lawful sentence of
twenty-five years' imprisonment for his conviction of conspiracy to traffic cocaine
has been served, and his second consecutive sentence of twenty-five years'
imprisonment for conspiracy to traffic marijuana was never a valid sentence because
the sentencing court lost jurisdiction to sentence him at the conclusion of the June
1990 sentencing hearing. Carpenter contends because he has served his only lawful
sentence of twenty-five years' day for day, he is entitled to immediate release from
SCDC custody. As this allegation falls squarely under subsections 17-27-20(A)(2)
and (5), it is a PCR claim. § 17-27-20(A)(2), (5) ("Any person who has been
convicted of, or sentenced for, a crime and who claims . . . [t]hat the court was
without jurisdiction to impose sentence; . . . [or t]hat his sentence has expired . . .
may institute . . . a proceeding under [the PCR Act] to secure relief.").

Second, Carpenter alleges SCDC misinterpreted both the law and his sentence when
it concluded he is not entitled to his earned good-time and work credits and is no
longer eligible for parole or for the accrual of sentencing credits of any kind.
Carpenter alleges if he had been allowed to retain his earned sentencing credits and
eligibility for sentencing credits, he would have been released in 2015, and therefore,
he is being held unlawfully in SCDC custody past the expiration of his valid
sentence. As this allegation falls squarely under § 17-27-20(A)(5), it is also a PCR
claim. § 17-27-20(A)(5) ("Any person who has been convicted of, or sentenced for,
a crime and who claims . . . [t]hat his sentence has expired . . . may institute . . . a
proceeding under [the PCR Act] to secure relief."); see also Al-Shabazz, 338 S.C. at
368, 527 S.E.2d at 749 (providing when the sentencing credit issue is alleged to have
caused an inmate to serve past the expiration of his lawful sentence, the claim is
appropriately raised in a PCR application under § 17-27-20(A)(5)).

Having determined both of the theories presented by Carpenter for relief are, in fact,
PCR claims, we next consider whether the PCR Act is the exclusive procedural
framework for the evaluation of his claims at this time. For the reasons that follow,
we conclude it is.

   B. Declaratory Judgment

First, we hold Carpenter may not circumvent the procedures designated in the PCR
Act by filing his PCR claims under the Declaratory Judgment Act. Declaratory
judgment claims are creatures of statute, and an individual's right to pursue
declaratory judgment derives from that statutory authority. See Thompson v. State,
415 S.C. 560, 564, 785 S.E.2d 189, 191 (2016) ("Pursuant to South Carolina's
Uniform Declaratory Judgments Act (the Declaratory Judgment Act), '[c]ourts of
record within their respective jurisdictions shall have power to declare rights, status
and other legal relations whether or not further relief is or could be claimed.'"
(quoting S.C. Code Ann. § 15-53-20 (2005))). When the Legislature passed the PCR
Act, it included the unambiguous mandate that: "Except as otherwise provided in
[the PCR Act], it comprehends and takes the place of all other common law, statutory
or other remedies heretofore available for challenging the validity of the conviction
or sentence. It shall be used exclusively in place of them." § 17-27-20(B).

We find both of Carpenter's claims fit squarely into a category available for redress
under the PCR Act in § 17-27-20(A), and therefore, his claims, which he raised under
the Declaratory Judgment Act, must be dismissed as procedurally barred by the PCR
Act pursuant to § 17-27-20(B). Accordingly, we vacate Judge Hood's order granting
declaratory judgment to SCDC, and we dismiss Carpenter's request for a declaratory
judgment as to the validity of his sentence for conspiracy to traffic marijuana.

   C. Writ of Habeas Corpus

Next, we hold Carpenter's petition for a writ of habeas corpus is also procedurally
barred by the PCR Act because Carpenter admits he has not raised his current claims
for habeas relief in any previous application for PCR. He has not exhausted his PCR
remedies pursuant to Gibson and is procedurally barred from raising his claims in a
petition for a writ of habeas corpus in the circuit court until he has done so. However,
under Gibson it is appropriate to construe Carpenter's current habeas claims as a
PCR application, and as such, we vacate Judge Hood's findings regarding the merits
of Carpenter's claims for habeas relief and remand Carpenter's case to the circuit
court to be treated as a PCR application and for a PCR hearing on the following PCR
issues:

             Did the sentencing court retain jurisdiction to sentence
             Carpenter on the conspiracy to traffic marijuana offense in
             August 1990?

             Did SCDC appropriately interpret South Carolina law to
             find Carpenter's sentence must be served day for day for
             fifty years and Carpenter is not entitled to his earned work
             or good-time credits? If SCDC did not, has Carpenter
             accrued enough sentencing credits to be entitled to
             immediate release?

   D. Successive or Time-Barred

Carpenter's action also raises questions regarding the intersection of the PCR Act's
provisions regarding successive and time-barred petitions and its provision allowing
claims where inmates have asserted their lawful sentence has expired. Because
Carpenter has filed several PCR applications, on remand, he has the burden to prove
a sufficient reason why he did not raise his present claims in his previous
applications or they may be subject to being dismissed as successive. S.C. Code
Ann. § 17-27-90; Aice v. State, 305 S.C. 448, 450, 409 S.E.2d 392, 394 (1991). He
must also prove his PCR claims are not time-barred under § 17-27-45. Should the
circuit court find Carpenter's claims are successive or time-barred, it may conclude
Carpenter has exhausted all available PCR remedies and treat Carpenter's claims as
a petition for a writ of habeas corpus. If treated as a habeas corpus petition,
Carpenter will have the burden of proving his current detention is a violation "which
. . . constitutes a denial of fundamental fairness shocking to the universal sense of
justice" in order to be entitled to release from prison. Butler v. State, 302 S.C. 466,
468, 397 S.E.2d 87, 88 (1990).

   E. Alleged Bias of Judge Hood

Carpenter argues Judge Hood was biased in favor of the State. We find this issue
unpreserved for appellate review because Carpenter never moved for Judge Hood to
recuse himself based on his alleged bias in favor of the State. See Gaddy v.
Douglass, 359 S.C. 329, 350, 597 S.E.2d 12, 23 (Ct. App. 2004) (providing in order
to preserve the issue of whether a circuit court judge should have recused himself
from a case, the issue must have been raised to the circuit court); Davis v. Parkview
Apartments, 409 S.C. 266, 289, 762 S.E.2d 535, 547 (2014) ("Timeliness is essential
to any recusal motion. To be timely, a recusal motion must be made at counsel's
first opportunity after discovery of the disqualifying facts." (quoting Duplan Corp.
v. Milliken, Inc., 400 F. Supp. 497, 510 (D.S.C. 1975))).

   F. Res Judicata

We reject the State's argument that the supreme court's denial of Carpenter's petition
for original jurisdiction and a writ of habeas action constitutes res judicata or has
any other preclusive effect in this case. The denial order was not based on the merits.
See Plum Creek Dev. Co. v. City of Conway, 334 S.C. 30, 34, 512 S.E.2d 106, 109
(1999) ("To establish res judicata, the defendant must prove the following three
elements: (1) identity of the parties; (2) identity of the subject matter; and (3)
adjudication of the issue in the former suit." (emphasis added)). As the court noted
in Simpson v. State, it has the authority to entertain habeas corpus petitions in its
original jurisdiction. 329 S.C. 43, 46 n.4, 495 S.E.2d 429, 431 n.4 (1998) ("Under
art. 5, § 5 of the South Carolina Constitution, this [c]ourt retains the ability to
entertain writs of habeas corpus in our original jurisdiction and grant relief in those
unusual instances where 'there has been a violation which, in the setting, constitutes
a denial of fundamental fairness shocking to the universal sense of justice.' [Butler,
302 S.C. at 468, 397 S.E.2d at 88]; see also Simmons v. State, 322 S.C. 49, 471
S.E.2d 455 (1993); Key v. Currie, [305 S.C. 115, 116, 406 S.E.2d 356, 357 (1991)]
(this Court will exercise its original jurisdiction where there is an extraordinary
reason such as a question of significant public interest or an emergency)."). This
does not mean, though, that the supreme court's habeas corpus jurisdiction is
exclusive. See Gibson, 329 S.C. at 42, 495 S.E.2d at 429 (finding that upon remand
if petitioners can show "PCR is unavailable, all other remedies have been exhausted,
and the issues raised now could not have been raised in their prior PCR applications,
the lower court may treat the applications as habeas petitions and provide a hearing
on their constitutional claim." (emphasis added)). Nor does it mean an order of that
court declining to exercise its original jurisdiction operates as a ruling on the merits
for purposes of res judicata.

                               III.   CONCLUSION

Carpenter's claims are cognizable under subsections 17-27-20(A)(2) and (5) of the
PCR Act and have not been raised in any previous PCR application. Accordingly,
Carpenter is procedurally barred from raising them under the Declaratory Judgment
Act or in a petition for a writ of habeas corpus. Therefore, we affirm Judge Hood's
order dismissing Carpenter's habeas petition to the extent it finds the habeas petition
was procedurally barred, and we vacate Judge Hood's orders: (1) granting
declaratory judgment in favor of SCDC and (2) evaluating the merits of Carpenter's
habeas corpus claim. We construe Carpenter's habeas corpus petition as an
application for PCR and remand to the circuit court for an evaluation of his claims
in accordance with this opinion.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

WILLIAMS and KONDUROS, JJ., concur.
