South Carolina Criminal Defense Blog

In State v. Bickham, the S.C. Supreme Court held that it is ok for a trial judge to enforce a solicitor's plea offer of a "package deal." The prosecutor informed the defense that they could plead to two counts of CSCM (criminal sexual conduct with a minor) 2nd degree and one count of CSCM 1st degree, pleading under N.C. v. Alford as to the CSCM 1st count, or else the prosecutor would call all three cases to trial separately and ensure that the defendant received life without parole due to statutory enhancements.

The defendant accepted the plea offer, but during the plea asked Judge Few to allow him to withdraw the Alford plea to CSCM 1st. Judge Few refused, offered to allow the defendant to withdraw his plea as to all charges or not to withdraw at all, and the defendant decided to go forward with the plea.

Whether to allow a defendant to withdraw a guilty plea is in the trial court's discretion. And whether to accept or decline a guilty plea is in the trial court's discretion. But, this case raises several issues. First is the practice of some prosecutors of trying to stop a defendant from pleading to some charges and not others. If a defendant says, I am guilty of this but I am not guilty of that - he should have every right to enter a plea in court to the offense that he is in fact guilty of, and then the prosecutor has every right to call the remaining charges to trial if he or she wishes.

Another issue raised by this case is Alford pleas. N.C. v. Alford allows a defendant to enter a plea of guilty even while protesting his innocence, where there is overwhelming evidence against the defendant and where a substantial benefit is being offered to the defendant. (A plea of Nolo Contendere is authorized by S.C. Code Sec. 17-23-40, but only in misdemeanor cases).

Alford pled guilty to 2nd degree murder, thereby avoiding the possible death penalty under N.C. law for 1st degree murder, and his sentence of 30 years was upheld by the U.S. Supreme Court. N.C. v. Alford should not be a tool by which prosecutors and defense attorneys can force pleas out of defendants, but that is how it is most often used. Although there are times when it is in the client's best interest, there is something inherently wrong with a person standing in court and saying I am innocent even as they enter a plea of guilty.

On the other hand, I have had prosecutors tell me that defendants do not have a right to plead guilty. I haven't found any support for this statement, and if any readers have some I would love to see it. There is a statutory provision, under S.C. Code sec. 17-23-120 and 130, which says that a defendant cannot plead guilty under a waiver of indictment without the solicitor's consent after investigation. Other than this, I find no support for the assertion that a solicitor must consent to a defendant's plea of guilty as charged once they have been indicted.

Although, as the Court found in Bickham, it is in the trial court's discretion to allow a defendant to withdraw a plea, this case could have been an opportunity for the Court to address the issue of whether a defendant has the right to plead guilty. I cannot see where a trial court, any more than a prosecutor, can or should say that a defendant can plead guilty to Charge A, but only if he also pleads guilty to Charge B, where the defendant maintains his innocence as to Charge B. The court in this case should have allowed the defendant to enter the plea to both counts of CSCM 2nd and then proceed to trial on the CSCM 1st if the prosecutor chose to do so.

Update: Laura Hiller, in the comments, has pointed out that Alford itself (FN 11) says that a defendant does not have a constititutional right to plead guilty:

"A criminal defendant does not have an absolute right under the Constitution to have his guilty plea accepted by the court, although the States may by statute or otherise confer such a right." N.C. v. Alford. If the court has the discretion to reject any plea, by inference, a Defendant does not have the absolute right to enter a plea.

This leaves the question as to whether there is a state right to plead guilty in South Carolina. By statute, the court has said that an un-indicted defendant cannot plead guilty without the solicitor's consent; by implication this should mean that an indicted defendant can plead guilty regardless of what the prosecutor thinks.