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SC Administrative Law Court Decisions

Anthony Blihar #247644 vs. DOC

South Carolina Department of Corrections

Anthony Blihar #247644

South Carolina Department of Corrections





This matter is before the Administrative Law Judge Division (ALJD or Division) pursuant to the appeal of Anthony Blihar, an inmate incarcerated with the South Carolina Department of Corrections (Department). Blihar filed a grievance with the Department objecting to his custody status and received the Department’s final decision on May 24, 2001. On June 21, 2001, the Appellant filed this appeal with the Division. The Appellant claims the Department erred in interpreting his sentence.


The Division’s jurisdiction to hear this matter is derived entirely from the decision of the South Carolina Supreme Court in Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000). In McNeil v. South Carolina Department of Corrections, 00-ALJ-04-00336-AP (September 5, 2001), the Division issued an En Banc Order interpreting the breadth of its jurisdiction pursuant to Al-Shabazz. The decision holds that the Division’s appellate jurisdiction in inmate appeals is limited to two types of cases: (1) cases in which an inmate contends that prison officials have erroneously calculated his sentence, sentence-related credits, or custody status; and (2) cases in which the Department has taken an inmate’s created liberty interest as punishment in a major disciplinary hearing.

When reviewing the Department’s decisions in inmate grievance matters, the ALJD sits in an appellate capacity. Al-Shabazz, 527 S.E.2d at 756. Consequently, the review in these inmate grievance cases is limited to the record presented. An Administrative Law Judge may not substitute his judgment for that of an agency “as to the weight of the evidence on questions of fact.” S.C. Code Ann. § 1‑23‑380(A)(6) (1986 & Supp. 2000). Furthermore, an Administrative Law Judge may not reverse or modify an agency’s decision unless substantial rights of the appellant have been prejudiced because the decision is clearly erroneous in view of the substantial evidence on the whole record, arbitrary or affected by an error of law. See S.C. Code Ann. § 1-23-380(A)(6); see also Marietta Garage, Inc. v. South Carolina Dept. of Public Safety, 337 S.C. 133, 522 S.E.2d 605 (1999); South Carolina Dept. of Labor, Licensing and Regulation v. Girgis, 332 S.C. 162, 503 S.E.2d 490 (1998).


The Appellant plead guilty to Failure to Stop a Vehicle Involved in an Accident when Death Occurs (Failure to Stop) in violation of S.C. Code Ann. § 56-5-1210(A)(3) (Supp. 1997).[1] The Appellant was immediately taken into custody by the Department and classified as eligible for parole. Thereafter, in December 1999 the Department re-classified the Appellant as an inmate subject to a non-parolable offense, pursuant to a 1993 amendment to S.C. Code Ann. § 16-1-30 (Supp. 1997). The Department again re-classified the Appellant as a parolable offender. However, in 2000, the Department again reversed its position and made a final determination that the Appellant is not eligible for parole, requiring service of eighty-five (85%) percent of the sentence imposed.

On November 28, 2000, the Appellant filed a grievance, complaining that he should be classified as eligible for parole. In response, the Warden informed the Appellant that the Office of General Counsel determined that the classification of his offense was non-parolable and, therefore, that he was required to serve eighty-five (85%) percent of his sentence. The Appellant then appealed his grievance to the Department, alleging that the Department of Corrections had exceeded its legal and statutory authority. The Department’s Final Decision denied the Appellant’s grievance regarding his complaint that he had been wrongfully classified.


S.C. Code Ann. § 24‑13‑100 (Supp. 1997) provides that: “For purposes of definition under South Carolina law, a ‘no parole offense’ means a class A, B, or C felony or an offense exempt from classification as enumerated in Section 16‑1‑10(d), which is punishable by a maximum term of imprisonment for twenty years or more.” Furthermore, pursuant to S.C. Code Ann. § 24-13-150 (A) (Supp. 1997), a prisoner convicted of a no parole offense is not eligible for early release “until the prisoner has served at least eighty-five percent of the actual term of imprisonment imposed.” This percentage is calculated without the application of earned work credits, education credits, or good conduct credits. Sections 24-13-100 and 24-13-150 were effective January 1, 1996. The Appellant claims he should not be an eighty-five (85) percent, no parole offender pursuant to S.C. Code Ann. § 24-13-100 (Supp. 1997). He contends that S.C. Code Ann. § 16-1-90(B), entitled “Crimes Classified as Felonies,” was only recently amended to include Section 56-5-1210(A)(3) as a Class B felony and, therefore, he presumptively was not convicted of a non-parolable offense.

The Petitioner further contends that Section 56-5-1210(A)(3) (Failure to Stop) was not a “new” criminal offense created after July 1, 1993 to satisfy S.C. Code Ann. § 16-1-30 (Supp. 1997), and that the offense should not be included in the classification system. Therefore, he argues that Failure to Stop should be punished according to the provisions of S.C. Code Ann. § 16-1-110 (Supp. 1997). Section 16-1-110 provides that: “A felony or misdemeanor provided by statute or in common law which is not assigned a classification pursuant to Section 16‑1‑90 or 16‑1‑100 must be punished as provided before enactment of the classification system.” (emphasis added).

The Appellant was convicted of S.C. Code Ann. § 56-5-1210(A)(3), Failure to Stop in either July 1997 or September 1998. See fn. 1. Effective June 4, 1996, Section 56-5-1210 was drastically rewritten to create three separate criminal offenses with three separate punishments depending on the severity of the injury to the accident victim. Section 56-5-1210 (A)(3) provided that a person convicted of that offense was guilty of “a felony and, upon conviction, must be imprisoned not less than one year nor more than twenty‑five years. . . .” Therefore, I find that the Failure to Stop statute was enacted after the implementation of the classification system, that there are no punishment provisions to reference before the enactment of the classification system and, subsequently, Section 16-1-110 does not apply.

Nevertheless, S.C. Code Ann. § 16-1-30 states that: “All criminal offenses created by statute after July 1, 1993, must be classified according to the maximum term of imprisonment provided in the statute and pursuant to Sections 16-1-10 and 16-1-20. . . .” To that end, S.C. Code Ann. § 16‑1‑20(A) provided that: “A person convicted of classified offenses, must be imprisoned as follows:

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(2) for a Class B felony, not more than twenty‑five years.”

Consequently, Sections 16-1-20(A) and 16-1-30 act collectively as a “catch-all” provision for those felonies that may not have been specifically listed under Section 16-1-90.

The cardinal rule of statutory construction is that the court is to ascertain and effectuate the actual intent of the legislature. In determining this intent, statutes which are part of the same act must be construed together and each one given effect, if it can be done by any reasonable construction. Burns v. State Farm Mut. Auto. Ins. Co., 297 S.C. 520, 377 S.E.2d 569 (1989); Higgins v. State, 307 S.C. 446, 415 S.E.2d 799 (1992). Furthermore, “where the language of the statute gives rise to doubt or uncertainty as to the legislative intent, the search for that intent may range beyond the borders of the statute itself; for it must be gathered from a reading of the statute as a whole in the light of the circumstances and conditions existing at the time of its enactment.” Abell v. Bell, 229 S.C. 1, 91 S.E.2d 548, 550 (1956). Therefore, Section 16-1-90(B) must not be read in isolation, but must be considered in conjunction with the entire framework of the categorization of felonies and misdemeanors throughout Title 16.

Although the “Failure to Stop a Vehicle Involved in an Accident when Death Occurs” offense was not specifically listed in the 1997 Cumulative Supplement, the Legislature intended that all statutory offenses be classified according to the maximum term of imprisonment as set forth in Section 16-1-20. See S.C. Code Ann. Section 16-1-30. Consequently, the Appellant was convicted of a Class B felony under Section 56-5-1210(A)(3) and, as a result, it is a “no parole” offense under Section 24-13-100. Furthermore, “[a] subsequent statutory amendment may be interpreted as clarifying original legislative intent.” Stuckey v. State Budget and Control Bd., 339 S.C. 397, 529 S.E.2d 706, 708 (2000); see also, Cotty v. Yartzeff, 309 S.C. 259, 422 S.E.2d 100 (1992) [“Light may be shed upon the intent of the General Assembly by reference to subsequent amendments which, although normally presumed to change existing law, may be interpreted as clarifying it.” (Quoting, Ridge Community Investors, Inc. v. Berry, 293 N.C. 688, 239 S.E.2d 566 (1977))]. Therefore, the fact that Section 16-1-90(B) now provides that Section 56-5-1210(A)(3) is a Class B felony enhances the interpretation the legislature originally intended that Section 56-5-1210 (A)(3) be a Class B felony. See S.C. Code Ann. § 16-1-90(B) (Supp. 2002).

The Appellant also contends that the retroactive application of the amendment of Section 16-1-90(B) to include Section 56-5-1210(A)(3) as a Class B felony violates the Ex Post Facto Clause. An ex post facto violation occurs when a change in the law retroactively alters the definition of a crime or increases the punishment for a crime. Jernigan v. State, 340 S.C. 256, 531 S.E.2d 507 (2000). However, in this case, the subsequent amendment to Section 16-1-90(B) did not change Section 56-5-1210(A)(3) or increase its punishment. As explained above, the existing statutory law provided that the Appellant was convicted of a Class B felony under Section 56-5-1210(A)(3) and, as a result, he was serving a “no parole” offense under Section 24-13-100.


IT IS THEREFORE ORDERED that the Final Decision of the Department is AFFIRMED and the appeal of the Appellant is DENIED.


Ralph King Anderson, III

Administrative Law Judge

March 31, 2003

Columbia, South Carolina

[1] In its Brief, the Department has the date of the offense from which this conviction occurred as September 12, 1998 while the Appellant has the date in its Brief as July 29, 1997. Furthermore, the sentencing report submitted by the Department is unreadable. However, as § 56-5-1210 was rewritten in 1996 and has not since been altered or amended, I find that the differences in those dates has no bearing on this appeal.

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