Conviction for paraphernalia cannot be used to enhance drug offense
In Berry v. State, released today, the S.C. Supreme Court held that a prior conviction for paraphernalia cannot be used to enhance a manufacturing meth charge to second offense, and granted Berry's PCR petition because his plea counsel failed to inform him of this or object to the enhancement.
Berry pled guilty to second offense manufacturing methamphetamine, was sentenced to seven years, and an accompanying possession with intent to distribute meth charge was dismissed as part of the plea agreement. The Court points out that it is perfectly acceptable for a defendant to plead to a charge that he or she is technically not guilty of in exchange for a plea agreement - for example, defendants will often plead to manslaughter to avoid a murder conviction, even though the legal requirement of provocation is not present - in order to receive a lesser sentence. The plea must be entered into knowingly and voluntarily, however, and in this case Berry's attorney did not advise him that a paraphernalia conviction could not be used to enhance his drug conviction. Berry testified that he would not have entered the plea had he known, and his counsel testified that it didn't even occur to him.
There are significant differences in the potential sentences and how the sentence is served - manufacturing meth first offense carries 0-15 years and second offense carries a potential 5-30 years; but a second offense is also an 85% no parole offense for purposes of how much time you serve. On a first offense, a convicted person will receive time credits at SCDC and could be released after serving as little as half of their sentence - or could be released on parole even sooner. (**** do not rely on this blog for legal advice - please rely on your attorney to explain sentencing issues. Sentencing issues, time credits, parole eligibility are complex issues that will be determined by the individual circumstances of your case. ****)
For practical purposes, this means that Berry, although he pled to 7 years, would end up serving as much or more time than he would have if he had been convicted following trial and received the maximum sentence of 15 years on a first offense. On a first offense if he was sentenced to 15 years, he could potentially have maxed out his sentence after 7 1/2 to 8 years, or could have been paroled even sooner. With a sentence of 7 years on a second offense, he has to serve around 6 years before he could be released.
Even if Berry had gone to trial, lost, and was sentenced to the maximum of fifteen years, he would most likely not have been in a worse position. But, assuming that the state had a solid case against him, the real error lay in allowing the use of a paraphernalia conviction to enhance the drug charge. If Berry had pled, without any recommendation by the prosecutor, to a first offense manufacturing meth, odds are he would not have received the maximum sentence and he would have undoubtedly been in a better position.
Allowing the use of a paraphernalia conviction to enhance a drug charge without even questioning it was a failure not only of Berry's lawyer, but of the prosecutor, the trial court, and the lower PCR court which denied relief. In my experience, in S.C., the use of paraphernalia for enhancement has never been a question with any prosecutor or judge, and it amazes me that a prosecutor, defense attorney, and 2 trial judges would not even question the propriety of this guy's plea.
