Opinion Letter from South Carolina Assistant Attorney General Anita S. Fair to Ombudsman Kunz (Feb. 24, 2014) http://2hsvz0l74ah31vgcm16peuy12tz.wpengine.netdna-cdn.com/wp-content/uploads/2014/02/kunz-v-s-os-9699-2-24-14-victims-right-to-be-notified-00201
Issue: Does Rule 29(a) of the South Carolina Rules of Criminal Procedure allowing post-trial motions without a hearing permit a sentence reduction by a judge without prior notification to the Victim or opportunity for the Victim to be heard concerning such reduction?
Opinion Letter from South Carolina Assistant Attorney General Anita S. Fair to Ombudsman Kunz (Feb. 24, 2014),available at http://2hsvz0l74ah31vgcm16peuy12tz.wpengine.netdna-cdn.com/wp-content/uploads/2014/02/kunz-v-s-os-9699-2-24-14-victims-right-to-be-notified-00201798xD2C78.pdf
Issue: Does Rule 29(a) of the South Carolina Rules of Criminal Procedure allowing post-trial motions without a hearing permit a sentence reduction by a judge without prior notification to the Victim or opportunity for the Victim to be heard concerning such reduction?
Opinion of the South Carolina Office of the Attorney General (the “Office”): The Office concluded that it believes a court will find that the state constitution requires a victim to be notified of and allowed to speak at or at least to submit a new or updated statement in regards to a motion for sentence reconsideration regardless of whether the post-trial motion for sentence reconsideration is filed pursuant to the Rules of Criminal Procedure or state statute. The Office further concluded that it believes a court will find that neither the South Carolina Rules of Criminal Procedure nor any statutory law may be used in a way that violates crime victims’ state constitutional rights. The Office described victims’ state constitutional rights, including the rights: to be informed of any proceedings when any post-conviction action is being considered, and be present at any post-conviction hearing involving a post-conviction release decision, a plea, or sentencing; to be heard at any proceedings involving a post-arrest release decision, a plea, or sentencing; and to have all rules governing criminal procedure protect victims’ rights and to have these rules subject to amendment or repeal by the legislature to ensure protection of these rights. The Office concluded that even if a judge may hear a motion for sentence reconsideration without a hearing under Rule 29 or other authority, it believes that a court will find that the victim has rights—grounded in state constitution and statute—to be notified of such a motion and to be “heard (whether through a new opportunity to speak or through a updated written statement) specifically on the new motion concerning sentencing.” The Office explained that there may be “a change of circumstances since the initial sentencing … or new evidence” about which the victim could inform the court, and that the court may not otherwise know of this information unless it is provided by the victim; also, that South Carolina courts have already made clear that a victim maintains his or her rights under the Victims’ Bill of Rights throughout the entire criminal proceedings. Lastly, the Office addressed the court’s holding in State v. Bradley, 478 S.E.2d 537 (S.C. Ct. App. 1996), that a defendant has no state constitutional right to be present at a sentence reduction hearing. The Office concluded that it believed that a court would not extend the holding in Bradley to find that victims would not be allowed to speak regarding a motion to reduce a sentence or at a minimum to present a new statement for the judge to review, and that, instead, “a court will find Victims of a crime in South Carolina have Constitutional rights which cannot be ignored.”
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