350 S.C. 543 567 S.E.2d 486

567 S.E.2d 486

The STATE, Respondent, v. Demarco JOHNSON, Appellant.

No. 3501.

Court of Appeals of South Carolina.

Submitted March 25, 2002.

Decided May 28, 2002.

Rehearing Denied Aug. 23, 2002.

*544Assistant Appellate Defender Katherine Carruth Link, of S.C. Office of Appellate Defense, of Columbia, for appellant.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, Assistant Attorney General *545W. Rutledge Martin; and Solicitor Warren B. Giese, all of Columbia, for respondent.

GOOLSBY, J.

A jury convicted Demarco Johnson of first-degree burglary, armed robbery, and two counts of kidnapping. The trial judge sentenced Johnson on each offense pursuant to section 17-25-45(A) of the South Carolina Code,1 known as the “Two-Strikes” law,2 to life imprisonment without the possibility of parole. Johnson had a prior conviction for assault and battery with intent to kill and two prior convictions for attempted armed robbery. On appeal, Johnson challenges the validity of section 17-25-45(A), claiming the statute violates the doctrine of separation of powers and the prohibition against cruel and unusual punishment. He also contends the State failed to satisfy its burden of proving that he had been convicted of the prior offenses. We affirm.3

1. We find no merit to Johnson’s contention that his sentence under section 17-25-45(A) violates the separation of powers doctrine because it deprives the judiciary of “all judicial discretion” in the exercise of its sentencing fimction. The *546supreme court basically settled this issue in State v. De La Cruz,4 a case that dealt with a challenge on the same ground to another mandatory sentencing statute, S.C.Code Ann. § 44-53-370(e)(2)(c) (Supp.1989).5 In that case, the supreme court recognized judicial discretion in sentencing is subject to statutory restriction without any violation of the separation of powers doctrine.6

2. We likewise find no merit to Johnson’s contention that the application to him of the mandatory sentencing statute at issue here amounts to cruel and unusual punishment 7 because the facts and circumstances in this case “simply [are] not the kind that warrant[] imposition of a life sentence without eligibility for parole.” ,

In State v. Jones,8 our supreme court determined the life without parole sentence under the Two Strikes law of a defendant who was convicted of three counts of armed robbery and possession of a firearm was not grossly out of proportion to the severity of the crime for which he was convicted.9 The Jones court considered the following three factors mentioned in Solem v. Helm10 in reaching its conclusion: (1) the gravity *547of the offense compared to the harshness of the penalty, (2) the sentences imposed on other criminals in the same jurisdiction, and (3) the sentences for the same crime in other jurisdictions.11

Here, few would argue that first-degree burglary, armed robbery, and kidnapping are anything other than grave offenses of the “most serious” nature. Indeed, the Two Strikes law declares them to be such.12 When considered along with Johnson’s prior offenses, two of which were for attempted armed robbery and one of which was for assault and battery with intent to kill, the penalty of life without parole for each of the offenses for which Johnson was convicted is not extreme.13

Moreover, the sentence that Johnson received is no different from a sentence that would be levied on any other defendant convicted in South Carolina under similar circumstances. The sentence of life without the possibility of parole that the trial court imposed on Johnson upon his conviction for four “most serious” offenses is the same sentence as would be imposed on any other defendant with a record of convictions for one or more “most serious” offenses14 and similarly convicted.

Regarding the third factor, a life sentence under recidivist laws for armed robbery, one of four “most serious” offenses for which the jury convicted Johnson, is not, as the court recognized in Jones, “unique to South Carolina.”15

3. Finally, we disagree with Johnson’s contention that the State failed to satisfy its burden of proof that Johnson had *548been convicted of the prior offenses that triggered the Two-Strikes law. The State proffered certified copies of court records showing that a Demarco Johnson pled guilty in 1997 to two counts of attempted armed robbery and one count of assault and battery with intent to Mil. Johnson offered no evidence16 to suggest he was not that Demarco Johnson. Under these circumstances, the evidence was sufficient to show that Johnson and the individual previously convicted were one and the same.17

AFFIRMED.

CONNOR and ANDERSON, JJ., concur.

State v. Johnson
350 S.C. 543 567 S.E.2d 486

Case Details

Name
State v. Johnson
Decision Date
May 28, 2002
Citations

350 S.C. 543

567 S.E.2d 486

Jurisdiction
South Carolina

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