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State v. Morgan

Court of Appeals of South Carolina

July 20, 2016

The State, Respondent,
v.
Jason Randall Morgan, Appellant. Appellate Case No. 2014-000420

          Heard January 5, 2016

         Appeal From Pickens County Letitia H. Verdin, Circuit Court Judge

          Daniel J. Farnsworth Jr., of Farnsworth Law Offices, LLC, of Greenville, for Appellant.

          Attorney General Alan McCrory Wilson, Senior Assistant Deputy Attorney General John Benjamin Aplin, and Assistant Attorney General Mary Williams Leddon, all of Columbia; and Solicitor William Walter Wilkins III, of Greenville, for Respondent.

          MCDONALD, J.

         Jason Randall Morgan appeals the circuit court's order awarding restitution, arguing the settlement of the initial civil action between Morgan and Victim as well as Victim's signing of a covenant not to execute bars restitution as a condition of Appellant's probationary sentence. We disagree and affirm.

         FACTS/PROCEDURAL HISTORY

         On August 21, 2010, Jason Randall Morgan (Morgan) caused an automobile accident with Elizabeth Morales-Molina (Victim), generating both a civil claim for damages by Victim and a criminal prosecution against Morgan for felony driving under the influence (DUI). Victim sustained significant injuries, including a broken arm, a broken hip, and broken ribs. On November 18, 2010-independent of the criminal case-Victim and Morgan's insurance company settled the civil suit and entered a Covenant Not to Execute (Covenant). Pursuant to the Covenant, Morgan's insurance company agreed to pay $25, 000, the primary liability insurance policy's limit. The Covenant reads, in pertinent part, as follows:

Notwithstanding any judgment that may be rendered in any such lawsuit, it is the express intent of the parties that Covenantee [Morgan], his/her/its/their agents, representatives, heirs and assigns, shall never at any time, be liable to Covenantor [Victim], his/her subrogees, agents, representatives, heirs or assigns, beyond the consideration expressed herein and paid, by reason of any damages or injuries on which such judgment may be based except as herein stated. In consideration of the payment to [Victim] of the aforementioned sum [$25, 000], [Victim], his/her subrogees, agents, representatives, heirs or assigns, shall not at any time, nor shall anyone for them or in their behalf, enforce against Covenantee, by execution or otherwise, any judgment that may be rendered in any such lawsuit except as herein stated. Further, immediately upon reduction to judgment of any such lawsuit, Covenantor, his/her subrogees, agents, representatives, heirs or assigns, will provide Covenantee with an executed satisfaction of said judgment. Moreover, this COVENANT or a photocopy hereof shall be considered and serve as a satisfaction of any such judgment in any claim or lawsuit presented by [Victim] against [Morgan] for the aforementioned vehicular collision or incident, and can be recorded as such should Covenantor, his/her subrogees, agents, representatives, heirs or assigns fail to execute a Satisfaction of Judgment.

         The Covenant expressly reserved Victim's right to bring suit against Morgan and/or any excess liability and/or underinsured motorist insurer. Further, the Covenant states "Covenantor, Covenantee and insurer expressly reserve all rights of action, claims, demands or other legal remedies against all firms, persons or entities of any nature or kind, except as modified by the terms of this COVENANT. This COVENANT is not a release, nor shall it be construed as a release of any party, person, firm or corporation."

         On June 27, 2013, Morgan pled guilty to assault and battery in the second degree and was sentenced to a prison term of three years, suspended upon service of three years' probation. After eighteen months' probation, the sentence could be terminated upon payment of all associated collections.

         At an October 3, 2013 restitution hearing, the State requested that Victim be awarded restitution of $238, 660.10 for outstanding medical bills related to her treatment for injuries sustained in the accident. Morgan opposed restitution, arguing the Covenant operated to release Morgan's responsibility for any payment other than the $25, 000 paid to settle the initial liability claim. The circuit court ordered restitution of $238, 660.10 on December 17, 2013.

         STANDARD OF REVIEW

         "A sentence will not be overturned absent an abuse of discretion when the ruling is based on an error of law." State v. Dawson, 402 S.C. 160, 163, 740 S.E.2d 501, 502 (2013).

         In State v. Gulledge, our supreme court explained, "[T]he restitution hearing is part of the sentencing proceeding." 326 S.C. 220, 228, 487 S.E.2d 590, 594 (1997); see S.C. Code Ann. § 17-25-322(A) (2014) ("[I]n addition to any other sentence which it may impose, the court shall order the defendant make restitution . . . ." (emphasis added)); see also United States v. Anglian, 784 F.2d 765, 769 (6th Cir. 1986), cert. denied,479 U.S. 841 (1986) (a restitution order is in the nature of a sentence, and the district court is vested with wide discretion in determining the appropriate sentence for a convicted defendant). "Therefore, during the restitution hearing, the rules governing sentencing proceedings should apply." Gulledge, 326 S.C. at 229, 487 S.E.2d at 595; see Harris v. Alabama, 542 So.2d 1312, 1314 (Ala.Crim.App.1989) (explaining because restitution is not intended to be a civil action, a restitution hearing shall be governed by the same rules as a sentencing hearing; therefore, any evidence the court deems to have probative ...


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