• Consists of a waiver of the right to a trial and an express admission of guilt.

• Defense attorney and solicitor enter an agreement as to sentencing.
• If the judge does not accept the plea as negotiated, defendant may be allowed to withdraw plea.
• If prosecutor deviates from the agreed upon terms, the court may allow defendant to withdraw plea.

• In a nolo contendere or no contest plea, the child does not admit guilt but does not dispute the charges either.
• Same as a guilty plea for all practical purposes. State v. Munsch, 338 S.E.2d 329 (S.C. 1985).
• § 17-23-40 specifically allows for nolo contendere pleas, with the court’s consent, for misdemeanors. SeeKibler v. State, 227 S.E.2d 199 (S.C. 1976) (nolo contendere in felony cases).

• An accused may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if unwilling to admit participation in the crime, or even if plea contains a protestation of innocence, when he intelligently concludes that his interests require a guilty plea and the record strongly evidences guilt. North Carolina v. Alford, 400 U.S. 25 (1970).
• Defendant, after being informed of the evidence against him, must be convinced that he would be found guilty if he went to trial.
• Defendant must also receive some benefit from the plea, such as a reduced charge or favorable sentence recommendation.
• Acceptance of an Alford plea is in the court’s discretion. Prior to accepting an Alford plea, the court should explain the above requirements to the child and ask if child wishes to plead pursuant to Alford.

•  State v. Rice, 737 S.E.2d 485 (S.C. 2013).  See also In re Johnny Lee W., 638 S.E.2d 682, 684 (S.C. 2006) ("A trial court may not accept a conditional plea.").
• In South Carolina, a guilty plea constitutes a waiver of nonjurisdictional defects and claims of violations of constitutional rights. Rivers v. Strickland, 213 S.E.2d 97 (S.C. 1975).
• If accused attempts to attach any condition or qualification to plea, the court should direct a plea of not guilty. State v. Truesdale, 296 S.E.2d 528 (S.C. 1982). See also State v. Peppers, 552 S.E.2d 288 (S.C. 2001); State v. O’Leary, 393 S.E.2d 186 (S.C. 1990).

Expand allAppoint an attorney as needed.

• A child has the right to counsel in any case “where the delinquency proceedings may result in commitment to an institution in which the child’s freedom is curtailed.” § 63-19-1030(D); § 17-3-10.
• The court should require children to be represented by an attorney in all court proceedings to ensure the child’s rights are protected.
• When determining whether a child qualifies for an appointed attorney, the court considers the parents’ financial ability to hire an attorney for the child. § 63-19-1040.
• If the parents are able but refuse to hire an attorney, the court is authorized to appoint an attorney and order the parents to reimburse the Indigent Defense Fund or pay the court-appointed attorney in an amount determined by the court. § 63-19-1040. See also § 17-3-100. (Discretionary authority of judge to appoint counsel is not limited; remuneration and reimbursement.)

Appoint a guardian as needed.

• The appointed GAL is responsible for ensuring that the child fully understands the court proceedings and that the child’s rights are being protected. 
• Appointment of a GAL should be considered when:
• the child’s parent is the victim;
• the parent cannot be found or willfully fails to come to court;
• the parent does not seem to be concerned with the child’s best interests; or
• the parent cannot understand the proceedings because of mental incapacity.

Address the need for interpreters.

• See § 17-1-50(B)(1) (appointment of interpreter for party, witness, or victim unable to sufficiently understand or speak English).
• See § 15-27-15 (appointment of interpreter for a deaf person).

Assess child's competency and need for evaluation.

• If the court has reason to believe child lacks capacity to understand the proceedings against him or to assist counsel in his defense, the court should order that the child undergo a competency evaluation. § 44-23-410. (See Section 7, Adjudicative Competence.)
• A competency evaluation may be warranted if the child:
• is 12 or younger;
• exhibits irrational behavior in court;
• does not appear to understand questions posed by attorney or judge, or what is happening during the attorney/client conferences or court proceedings;
• has a history of mental health problems, has been in and out of hospitals, or is or has been on medication; or
• is in learning disabled (LD), emotionally handicapped (EH), or other special education classes.

Assess child's safety.

• If there are indicators that the child is being abused or neglected, the child may need to be taken into emergency protective custody (EPC) by the court and placed with Department of Social Services (DSS).
  • If allegations of abuse or neglect are initially raised during a DJJ hearing, the court will assess whether the child should be placed into EPC or whether a report should be made to DSS with instructions to investigate. If the court determines it would be contrary to the child’s welfare to remain in the parents’  home and that it might be necessary for the child to be placed into EPC, DSS shall immediately be notified and appropriate staff members shall immediately respond to the courtroom. Best Legal Practices in Child Abuse and Neglect Cases.
  • If a determination is made that a child should be removed from the home, any order which places the child into DSS custody shall contain the Title IV-E language of “contrary to the child’s welfare.” That order shall also determine whether DSS must schedule a 72-hour hearing in the removal action or whether the DJJ hearing will suffice. Best Legal Practices in Child Abuse and Neglect Cases.
•  A DSS home investigation should be ordered if:
  • there are signs of abuse or neglect; or
  • the child’s parent appears to have issues affecting her or his ability to properly care for the child, such as a substance abuse problem or a severe mental illness.
  • DSS should not decline an investigation because a child is in a “safe” place. DJJ supervision/placement is temporary. The child should not have to return to a dangerous environment before DSS investigates allegations. Best Legal Practices in Child Abuse and Neglect Cases.

Assess the need for a psychoeducational evaluation.

•  If the child is struggling in school, is in regular classes, and has never been tested for learning disabilities, the judge may order that the school perform a psychoeducational evaluation to assess whether the child is properly placed or is in need of special education or related services. 
• The order should include an amount of time in which to have the evaluation completed to ensure a timely response.

Comply with Indian Child Welfare Act (ICWA) if applicable.

• ICWA applies whenever an Indian child is the subject of a State child custody proceeding as defined by the Act. ICWA also applies to proceedings involving status offenses or juvenile delinquency proceedings if any part of those proceedings results in the need for placement of the child in a foster care, preadoptive or adoptive placement, or termination of parental rights.  Bureau of Indian Affairs Guidelines for State Courts in Indian Child Custody Proceedings, A.3(a).
• ICWA inquiries must begin immediately at the beginning of a case, as failure to make such inquiries can cause a case to be reversed and the process begun again, delaying permanence for the child.
• If applicable, see ICWA checklist.  Abuse and Neglect Benchbook, Section 10, accessible on Children’s Law Center website.

 Determine whether use of restraints on child in court is necessary if applicable.

• If a child appears before the court wearing instruments of restraint, such as handcuffs, chains, irons, or straightjackets, the court in any proceeding may not continue with the child required to wear instruments of restraint unless the court first finds that the use of restraints is necessary because (1) the child poses a threat of serious harm to himself or others; (2) the child has a demonstrable recent record of disruptive courtroom behavior that has placed others in potentially harmful situations; or (3) there is reason to believe the child is a flight risk; and there are no less restrictive alternatives that will prevent flight or physical harm to the child or another person.
• The court shall provide the child’s attorney an opportunity to be heard before ordering the use of restraints.
• If restraints are ordered, the court shall make findings of fact in support of the order.

Address media issues if applicable.

 Challenges to Closed Court Proceedings

• If a judge’s decision to close any court proceeding is challenged by the public or the press, it must be supported by findings explaining the balancing of interests and the need for closure of the proceeding. Ex parte Columbia Newspapers, 333 S.E. 2d 337 (S.C. 1985).
• In Ex parte Columbia Newspapers, the court held that S.C. Const. art. I, § 9 (“all courts shall be public”) does not render § 63-3-590 (“general public must be excluded and only persons the judge finds to have a direct interest in the case or in the work of the court may be admitted.”) unconstitutional.  The court found “the public, which includes the press, has a right of access to juvenile court proceedings subject to a balancing of interests with the parties involved.” See also, Steinle v. Lollis, 307 S.E.2d 230 (S.C. 1983).
• The "free press" right of access to court proceedings claim is generally based upon the 1st and 14th Amendments to the US Constitution and S.C. Const. art. I, § 2 which prohibit the making of laws which would diminish the freedom of the press.
• The 1st Amendment provides that "Congress shall make no law…abridging the freedom of…the press" (made applicable to the states by the 14th Amendment).
• S.C. Const. art. I, § 2 provides that the “General Assembly shall make no law…abridging the freedom of…the press.”
• A defendant who opposes the public’s right of access to court proceedings bears the burden of proof to justify closure. This is in line with the general rule that "[c]losed proceedings...must be rare and only for cause shown that outweighs the value of openness." Ex parte The Island Packet, 417 S.E.2d 575 (S.C. 1992).

Release of Information to Newspaper, TV, or Radio Station

• The name, identity, or picture of a child under the court’s jurisdiction must not be provided to a  newspaper or radio or television station unless:
  • authorized by court order;
  • the solicitor has petitioned the court to waive the child to circuit court;
  • the child has been waived to adult court;  or
  • the child has been adjudicated delinquent for a violent crime, grand larceny of a motor vehicle; a crime in which a weapon was used; or distribution or trafficking in unlawful drugs. § 63-19-2040(A). 

• Explain purpose of hearing.
• Identify parties and other persons present.
  • If the case involves a victim who is not present, the judge must ask the solicitor to verify that a reasonable attempt was made to notify the victim sufficiently in advance to attend. If timely notice was not made, the hearing must be delayed for a reasonable time to allow notice. § 16-3-1550(D). 
• Allow solicitor to call the case.
• Question defense attorney to determine if he or she has had a full opportunity to discuss the case with the child and if the child has indicated he or she wishes to admit the charges as stated by the solicitor.
• Question the child to ensure the child understands the charges, his or her rights, the implications of pleading guilty, and that the child is pleading guilty freely and voluntarily. See, e.g., State v. Lambert,225 S.E.2d 340 (S.C. 1976). 

Expand all

•  Direct solicitor to state the facts of the case.
• Ask child to state on the record whether he or she agrees with, or in the case of a nolo contendere plea, does not contest, the facts stated in the petition.
• Allow the DJJ representative to report on the child’s school records and prior court history and make a sentencing recommendation to the court on behalf of DJJ. 
• Allow victim to address the court if appropriate.
• Allow defense attorney the opportunity to speak on behalf of child. Defense attorney may also ask the judge to hear from child, family members, and others who wish to speak on the child’s behalf. 
• Ask any further questions of the child, the defense attorney, the solicitor, or the DJJ representative needed. The solicitor may also request the opportunity to respond to statements made by the defense or recommendations regarding disposition of the case.
• Ask if child has any further questions.
• Make required determinations and findings.
• If the court finds child’s decision to plead guilty is freely, voluntarily, and intelligently made and that the child had the advice of a competent lawyer with whom the child is satisfied, the court may accept the guilty plea and adjudicate the child delinquent.
• Due process precludes court from exercising subject matter jurisdiction to adjudicate child for charge not alleged in petition unless adjudication is for lesser included offense or there has been a waiver of notice. In the Interest of Jason T., 531 S.E.2d 544 (S.C. Ct. App. 2000).
• Address any motion to withdraw plea made by defense, if applicable.
• Once a guilty plea has been entered, whether to allow withdrawal of the plea is left to the court's discretion. State v. Riddle, 292 S.E.2d 795 (1982).
• Prosecutors are obligated to fulfill promises they make to defendants when those promises serve as inducements to plead guilty. Santobello v. New York, 404 U.S. 257 (1971), See Sprouse v. State, 585 S.E.2d 278 (S.C. 2003).
• The defense attorney must move to withdraw the plea if:
  • judge appears to deviate from terms of a negotiated plea. Brooks v. State, 481 S.E.2d 712 (S.C. 1997).
  • defense enters into an agreement with solicitor and solicitor appears to stray from pre-arranged terms of the plea.  Jordan v. State, 374 S.E.2d 683 (S.C. 1988).
• Failure to attempt to withdraw may be ineffective assistance of counsel.
  • In Sprouse v. State, 585 S.E.2d 278 (S.C. 2003), the court held that counsel was ineffective for failure to attempt to withdraw plea where the solicitor opposed probation after promising to remain silent on the issue.  

• Decide whether to move straight into disposition and rule on sentencing or order the child to undergo a predisposition evaluation.
  • Before committing a child to DJJ, the court must order the child to undergo a predisposition evaluation. § 63-19-1440(C).
  • There are two types of predisposition evaluations: the community evaluation, where the child remains at home or in alternative placement in the community while undergoing the evaluation; and the residential evaluation, where the child is committed to DJJ for not more than 45 days while undergoing the evaluation. § 63-19-1440(C).
  • Children under 12 may not be committed to a residential evaluation center. § 63-19-1440(A).
  • If the court orders a child adjudicated delinquent for a status offense, a misdemeanor offense, or violation of probation or contempt for any offense to undergo a residential evaluation, DJJ may allow the child to undergo a community evaluation unless the committing judge finds and concludes in the order for evaluation that “a community evaluation must not be conducted because the child presents an unreasonable flight or public safety risk to his home community.” § 63-19-1440(C).
  • The court may waive the predisposition evaluation in writing and move straight into disposition of the case if the child:
  • has already undergone a community or residential evaluation and the evaluation is available to the court;
  • has been released from DJJ within the past year and the child’s previous evaluation or other equivalent information is available to the court; or
  • receives a sentence of probation or if committed to DJJ, it is for a determinate sentence of 90 days or less. § 63-19-1440(C).
• Notify child of record expungement requirements and process. § 63-19-2050.
  • Child may petition the court for expungement order if found not guilty in adjudicatory hearing.
  • The court shall grant the order regardless of child's age.
  • The granting of this order is nondiscretionary.
  • No fee may be charged for expungement.
  • Child may petition the court for expungement order if taken into custody for, charged with, or adjudicated delinquent for a status offense.
  • The granting of this order is nondiscretionary if criteria are met.
  • The court shall not grant the order unless it finds the child is at least 17, has successfully completed any sentence imposed, has not been subsequently adjudicated for or convicted of any criminal offense, and does not have any pending criminal charges.
  • Child may petition the court for expungement order if taken into custody for, charged with, or adjudicated delinquent for multiple status offenses or for a nonviolent crime.
  • The granting of this order is discretionary with the court.
  • The court shall not grant the order unless it finds the child is at least 17, has successfully completed any sentence imposed, has not been subsequently adjudicated for or convicted of any criminal offense, and does not have any pending criminal charges.
  • Child may not petition the court for expungement order if child has a prior adjudication for an offense that would carry a maximum of 5 or more years if committed by an adult.
  • The solicitor or law enforcement may file an objection to the expungement based on ineligibility of the charges or additional pending charges, and the expungement must then be heard by the court.

• Determine whether there is a factual basis for the plea.
  • “The [court] must be certain that … the record indicates a factual basis for the plea." State v. Armstrong, 211 S.E.2d 889 (S.C. 1975).
• Determine whether defendant voluntarily, intelligently, and knowingly entered it.
  • The record must establish that the guilty plea was voluntarily and understandingly made in order to be valid.  Gaines v. State, 517 S.E.2d 439 (S.C. 1999) citing Boykin v. Alabama, 395 U.S. 238 (1969).
  • “To find a guilty plea is voluntarily and knowingly entered into, the record must establish the defendant had a full understanding of the consequences of his plea and the charges against him.” Roddy v. State, 528 S.E.2d 418, 421 (S.C. 2000).
  • Question the defendant about the facts surrounding the case to ensure the defendant understands the implications of pleading guilty. See, e.g., State v. Lambert, 225 S.E.2d 340 (S.C. 1976).
  • The "court's warning should include an explanation of the defendant's waiver of constitutional rights and a realistic picture of all sentencing possibilities." State v. Armstrong, 211 S.E.2d 889 (S.C. 1975).