Was conspiracy to commit a misdemeanor classified as a felony in South Carolina in 2015?

Plain-English summary

South Carolina Court Administration asked whether a person convicted of conspiring to commit a misdemeanor was guilty of a felony. In 2015, the Attorney General answered yes, when the person was charged under the state's conspiracy statute. The statute expressly classified conspiracy as a felony, and the AG treated conspiracy as a distinct offense from the crime the participants intended to commit.

The opinion distinguished offense classification from punishment. A separate sentence in the statute barred a conspiracy fine or sentence greater than the person would have received for carrying out the intended unlawful act. The AG said that cap did not reclassify the conspiracy offense as a misdemeanor. It also noted that a 1993 legislative change had expressly changed conspiracy's classification to a felony.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did the planned crime have to be a felony for a conspiracy conviction to be a felony?
A: The AG said no. The conspiracy statute classified the separate conspiracy offense as a felony even if the planned crime was a misdemeanor.

Q: Could the conspiracy sentence exceed punishment for the planned misdemeanor?
A: The AG said the statute limited the fine or sentence by the punishment that would have applied had the contemplated unlawful act been carried out and prosecuted.

Q: Did the punishment limit change the felony label?
A: No. The AG read the limit as governing punishment, while the statute's separate language governed classification.

Background and statutory framework

The opinion interpreted the conspiracy statute's express felony designation together with its cap on fines and sentences. It relied on the difference between conspiracy as an agreement offense and the separate unlawful objective, and on the legislative history of the classification change.

Citations and references

• The AG said a defendant conspiring to commit a misdemeanor was “guilty of a felony so long as the individual is charged with violating the conspiracy statute.”

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/november-13-2015/
• Original PDF: https://www.scag.gov/wp-content/uploads/2015/11/Kohn-T.-OS-9914-FINAL-Opinion-11-13-2015-McDonald-00795428xD2C78.pdf

Original opinion text

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Alan Wilson

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Attorney General

November 13, 2015
Tonya K. Kohn
Staff Attorney
South Carolina Court Administration
1220 Sumter St.. Suite 200

Columbia. SC 29201
Dear Ms. Kohn:

We are in receipt of your opinion request concerning criminal conspiracy.

Specifically

you ask. "whether a defendant is guilty of a felony when he is convicted of conspiracy to commit a crime classified as a misdemeanor?" Our response follows.

I.

Law/Analysis

As noted in your letter. Section 16-17-410 of the Code explains, "ft]he common law crime known as 'conspiracy' is defined as a combination between two or more persons for the purpose of accomplishing an unlawful object or lawful object by unlawful means."

S.C. Code

Ann. § 16-17-410 (2003). Continuing. Section 16-17-410 provides that an individual convicted

of conspiracy "is guilty of a felony and. upon conviction, must be fined not more than five thousand dollars or imprisoned not more than five years."

id. (emphasis added).

However,

Section 16-17-410 adds that an individual "convicted of the crime of conspiracy must not be

given a greater fine or sentence than lie would receive if he carried out the unlawful act contemplated by the conspiracy and had been convicted of the unlawful act contemplated by the conspiracy or had he been convicted of the unlawful acts by which the conspiracy was to be carried out or effected." id. (emphasis added).

Understanding the terms of Section 16-17-410. we now return to your question

whether

a defendant found guilty of conspiracy to commit a crime classified as a misdemeanor is guilty of a felony. Because Section 16-17-410. as well as South Carolina law, explain that conspiracy is its own offense, we believe, consistent with the terms of Section 16-17-410. that one convicted of conspiracy is necessarily guilty of a felony regardless of whether the crime tied to the conspiracy is a misdemeanor. South Carolina's courts have explained Section 1 6- 1 7-4 1 0*s definition of conspiracy "'is

declaratory of the common law definition of conspiracy." State v. Crawford. 362 S.C. 627. 636. 608 S.E.2d 886. 891 (Ct. App. 2005). However, Section 16-1 7-4 1 0's current classification of the crime as a felony parts ways with the common law. See Crawford. 362 S.C. at 637, 608 S.E.2d

Rembert C.Dennis Building

•

Post Office Box 11549

•

Columbia, SC 29211-1549

•

Telephone 803-734-3970

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Facsimile 803-253-6283

Ms. Tonya K. Kohn
Page 2

November 13, 2015
at 891 (explaining that while conspiracy was a misdemeanor at common-law, Section 16-17-410

has now classified conspiracy as a felony). Therefore, while Section 16-17-410 and the law of

conspiracy are in accord, the classification of conspiracy as a felony punishable by up to five years imprisonment, or up to five-thousand dollars in fines, is exclusively governed by the terms of Section 16-17-410. A. The Crime of Conspiracy

The reasoning behind the prohibition of conspiracy "serves two distinct purposes:

the

punishment of group behavior and the control of inchoate activities." Crawford. 362 S.C. at 639, 608 S.E.2d at 893 (quoting 1 5A C.J.S. Conspiracy § 98).

As explained by one treatise, "[t]he

basic rationale of conspiracy seems to be that the combination of two or more persons make it

more likely that the criminal objective will be achieved, because the co-conspirators may offer each other encouragement and support, thereby rendering it less likely that the project will be abandoned."

William Shepard McAninich & W. Gaston Fairey, The Criminal Law of South

Carolina. 474 (4th ed. 2002).
It is well-settled that the "gravamen of the offense of conspiracy is the agreement or

combination." State v. Larmand. — S.C. —, — n.4, — , S.E.2d —, —n.4 (2015) (quoting State v. Gunn. 313 S.C. 124, 134, 437 S.E.2d 75, 80 (1993)); State v. Cope. 405 S.C. 317, 348, 748 S.E.2d 194, 210 (2013); State v. Sanders. 388 S.C. 292, 300, 696 S.E.2d 592, 596 (Ct. App. 2009); State v. Stuckev. 347 S.C. 484, 502, 556 S.E.2d 403, 412 (Ct. App. 2001).

Indeed,

"[ojnce an agreement has been reached, the crime of conspiracy has been committed[.]" Crawford. 362 S.C. at 639, 608 S.E.2d at 892. In fact, "[t]o establish a criminal conspiracy it is unnecessary to prove an overt act."

7 S.C. Jur. Civil Conspiracy § 3 "Criminal conspiracy

distinguished" (2015); see also. State v. Gosnell. 341 S.C. 627, 636, 553 S.E.2d 453, 458 (Ct. App. 20001 (quoting State v. Wilson. 315 S.C. 289, 294, 433 S.E.2d 864, 867-68 (1993) ("Under South Carolina law, a conspiracy does not require overt acts.").

This is because "overt acts

committed in furtherance of the conspiracy are not elements of the crime." Wilson. 3 1 5 S.C. at 294, 433 S.E.2d at 867-68. Moreover, the law is clear that "[a] conspiracy to commit a crime does not merge with

the completed offense." Crawford. 362 S.C. at 636, 608 S.E.2d at 891 (citing State v. Rutledge. 232 S.C. 223, 101 S.E.2d 289 (1957)). In other words, conspiracy "is a distinct offense in itself

and

punishable as such,

accomplished."

notwithstanding that the object of the

conspiracy

has

been

State v. Ferguson. 221 S.C. 300, 303-04, 70 S.E.2d 355, 356 (1952).

Thus,

unless Section 16-17-410 can be construed in a manner that would tie the classification of the offense of conspiracy to the classification of the unlawful object of the conspiracy, it would appear that an individual convicted of conspiracy would necessarily be convicted of a felony in light of its status as a separate offense.

Ms. Tonya K. Kohn
Page 3

November 13, 2015
B. Interpretation of Section 16-17-410
As mentioned above, the question of whether Section 16-17-410 can be construed in a manner that ties classification of the crime to the unlawful object of the conspiracy requires us to

interpret the statute.

We therefore look to the canons of statutory construction. "The cardinal

rule of statutory construction is to ascertain and effectuate the legislative intent whenever

possible." Hodges v. Rainev. 341 S.C. 79, 85, 533 S.E.2d 578, 581 (2000). "What a legislature says in the text of a statute is considered the best evidence of the legislative intent or will" and

"courts are bound to give effect to the expressed intent of the legislature."

Media General

Communications. Inc. v. South Carolina Dept. of Revenue. 388 S.C. 138, 148, 694 S.E.2d 525, 530 (2010); Wade v. State. 348 S.C. 255, 259, 559 S.E.2d 843, 844 (2002). When determining the effect of words utilized in a statute, a court typically looks to the "plain meaning" of the words. Citv of Rock Hill v. Harris. 391 S.C. 149, 154, 705 S.E.2d 53, 55 (2011). Nevertheless, courts do not focus on isolated portions of the language contained within a statute, but instead

consider the statute's language as a whole.

See Mid-State Auto Action of Lexington. Inc. v.

Altman. 324 S.C. 65, 69, 476 S.E.2d 690, 692 (1996) ("In ascertaining the intent of the legislature, a court should not focus on any single section or provision but should consider the

language of the statute as a whole."). This is because "[a] statute is passed as a whole and not in parts or sections and is animated by one general purpose and intent." 2A Norman J. Singer & J.D. Shambie Singer, Sutherland Statutes and Statutory Construction. § 46.5 (7th ed. 2007). However, courts will reject the plain and ordinary meaning of the words used in a statute when doing so would defeat the intent of the legislature.

Greenville Baseball v. Bearden. 200 S.C.

363, 368, 20 S.E.2d 813, 815 (1942).
Applying these principles of statutory construction to Section 16-17-410, we believe the crime of conspiracy is a felony.

As stated previously, Section

16-17-410 clearly and

unambiguously states ''[a] person who commits the crime ofconspiracy is guilty ofafelony. . . ." Id. As a result, South Carolina law mandates that we must apply these terms "according to their literal meaning." See S.C. Dep't of Highways & Pub. Transp. v. Dickinson. 288 S.C. 189, 191, 341 S.E.2d 134, 135 (1986) ("Where the terms of a statute are clear and unambiguous, there is

no room for interpretation and we must apply them according to their literal meaning."). Furthermore, while it is true Section 16-17-410's third sentence reflects an individual convicted of conspiracy may not "be given a greater fine or sentence" than if he were convicted of the unlawful object of the conspiracy, there is nothing within the sentence to suggest the

classification of conspiracy is changed by the fine or sentence tied to the conspiracy's unlawful object. Instead, Section 16-17-410's third sentence suggests the Legislature was aware of a way to link the classification of conspiracy to its object, but simply declined to do so.

See Rainev.

341 S.C. at 86-87, 533 S.E.2d at 582 (explaining with respect to statutory construction that, "to express or include one thing implies the exclusion of another or the alternative.").

Ms. Tonya K. Kohn
Page 4

November 13. 2015

This conclusion is further supported by the legislative history of Section 16-17-410.

In

particular, the 1993 amendment to Section 16-17-410 changed the classification of conspiracy from a misdemeanor to a felony. See 1993 S.C. Acts No. 184. § 35 (striking "misdemeanor" and

inserting "felony").

The Act explained the purpose behind this change, along with the

amendment to approximately 70 other statutes, was "to change portions [of the statutes] from misdemeanors to

felonies and

the maximum

term of imprisonment to

conform

to

the

classification system established in § 16-1-10 and § 16-1-20." 1993 S.C. Aets No. 184. § 35: see also.

17 S.C. Jur. False Pretenses §

II

(Cum. Supp.) (explaining the effect of the

1993

amendment to the conspiracy statute). Notably. Section 16-1 -90(F) confirms this understanding explaining that a violation of the conspiracy statute is a Class F felony. S.C. Code Ann. § 16-190(F) (2003). based

Again, had the Legislature intended for the offense of conspiracy to be classified

upon the classification of the conspiracy's unlawful object, one would expect the

classification statutes to reflect this understanding—however, they do not. See Rainev. 341 S.C. at 86-87. 533 S.E.2d at 582 (explaining with respect to statutory construction that, "to express or include one thing implies the exclusion of another or the alternative."). Accordingly, we believe that regardless of the classification of the conspiracy's unlawful object, the Legislature clearly-

intended the offense of conspiracy to be classified as a felony. II.

Conclusion

In conclusion, it is the opinion of this Office that because an individual violating the

conspiracy statute is guilty of a crime that is separate and apart from the unlawful object of the conspiracy, the terms of the statute related to the classification of the offense necessarily control. As a result, and based upon the clear and unambiguous language of Section 16-17-410. which

explains that "[a] person who is convicted of . . . conspiracy is guilty of a felony" we believe a defendant convicted of a conspiracy to commit a crime classified as a misdemeanor is guilty of a felony so long as the individual is charged with violating the conspiracy statute— Section 16-17410.

Sincerely.

Brendan McDonald

Assistant Attorney General
REVIEWED AND APPROVED BY:

J

Robert D. Cook
Solicitor General

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