State v. Rice

Justice PLEICONES.

I agree with the majority that our state’s juvenile waiver procedure does not implicate Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). I write separately, however, because I do not agree that appellant’s decision to plead guilty in general sessions court waived his right to appeal the family court’s waiver decision.

The circuit court has jurisdiction over an appeal from a family court order in only one circumstance: when the family court judge has denied the State’s request to transfer a matter that charges a juvenile with murder or with criminal sexual conduct. S.C.Code Ann. § 63-19-1210(6) (2010). Other than in this one circumstance, appeals from a family court order are cognizable only in either the Court of Appeals or the Supreme Court. In my opinion, since the court of general sessions has *336no jurisdiction over the family court order that transferred appellant, he cannot be said to have waived his right to appeal by pleading guilty in that forum. A party need not raise an issue before a tribunal that lacks jurisdiction to adjudicate the claim in order to preserve the issue for appeal. E.g., Travelscape, LLC v. South Carolina Dept. of Rev., 391 S.C. 89, 705 S.E.2d 28 (2011); Video Gaming Consultants, Inc. v. South Carolina Dep’t of Rev., 342 S.C. 34, 535 S.E.2d 642 (2000). I would not hold that a guilty plea in general sessions acts as a waiver of a juvenile’s right to appeal the family court’s transfer order.

It is well-settled that a juvenile who has been waived to general sessions may not immediately appeal that order but must wait, like other criminal defendants, until he has been sentenced. E.g., State v. Lockhart, 275 S.C. 160, 267 S.E.2d 720 (1980). In my opinion, it would violate our parens patriae duty1 as well as public policy to require a juvenile to forego a plea opportunity in order to preserve his right to appeal. Here, appellant received a sentence of eleven years in exchange for a guilty plea to four charges and the dropping of others. Had he not accepted the State’s plea offer, appellant faced five counts of armed robbery, four counts of kidnapping, three counts of possession a weapon during the commission of a crime, and one count each of criminal conspiracy, unlawfully carrying a pistol, assault with intent to kill, safecracking, and petit larceny. Each armed robbery count and each kidnapping count carried the possibility of a thirty-year sentence. I would not require a juvenile to forego a negotiated plea and face a trial in order to preserve his right to appeal the transfer order.2

Finally, the majority cites Vogel v. City of Myrtle Beach, 291 S.C. 229, 353 S.E.2d 137 (1987), for the proposition that a guilty plea waives “nonjurisdictional defects and defenses, including claim of violation of constitutional rights prior to the *337plea.... It conclusively disposes of all prior issues including independent claims of deprivation of constitutional rights.” Appellant is raising a jurisdictional challenge, alleging the transfer from family court to general sessions was accomplished under an unconstitutional statute. The unlawful waiver of jurisdiction over a juvenile does not confer subject matter jurisdiction on the court of general sessions. E.g., Austin v. State, 352 S.C. 473, 575 S.E.2d 547 (2003).3 There is no plea waiver here. Moreover, I would not apply the waiver rule where the appellant is not challenging anything related to the criminal proceedings against him or his plea, but rather the constitutionality of a procedural statute. Cf. State v. Inman, 395 S.C. 539, 720 S.E.2d 31 (2011) (capital defendant did not render plea conditional by appealing constitutionality of procedural sentencing statute since his claim did not affect validity of plea itself).

I concur in the holding that Apprendi does not apply, but dissent from that part of the majority opinion finding appellant waived his right to appeal the family court’s transfer order.

. See State v. Pittman, SIS S.C. 527, 647 S.E.2d 144 (2007) (recognizing parens patriae in juvenile proceeding).

. As die Supreme Court has recognized, plea bargaining is the norm in our criminal justice system. See Missouri v. Frye,-U.S.-,-, 132 S.Ct. 1399, 1407, 182 L.Ed.2d 379 (2012) (since 97% of federal convictions and 94% of state convictions result from pleas, plea negotiations are "almost always the critical point for a defendant").

. The fundamental question of subject matter jurisdiction is determined by South Carolina law, and an appellate court should take notice of a defect ex mero motu. E.g., State v. Gorie, 256 S.C. 539, 183 S.E.2d 334 (1971).