E. Sentencing

E. SENTENCING

Common law conspiracy is a felony for which the defendant may be sentenced to up to five years in prison or fined up to $5,000.²⁵⁰ However, this provision does not apply to drug crimes because the drug code contains a specific provision regarding drug-related conspiracies.²⁵¹ Section 44-53-420 provides that any person attempting or conspiring to commit an offense proscribed in the drug code may, upon conviction, be sentenced to a maximum of one-half of the sentence for the offense, which was the object of the attempt or conspiracy.²⁵² Thus, if a first-offender defendant conspired to possess heroin, he may be sentenced to a maximum of one-year imprisonment or fined not more than $2,500, or both, because the punishment for a first-offense possession of heroin is up to two years' imprisonment or a fine of up to $5,000, or both.²⁵³

Section 44-53-420 does not apply to conspiracies in which the criminal objective is to traffic in marijuana, cocaine, morphine or opium or their derivatives, methaqualone, LSD, flunitrazepam, gamma hydroxybutryic acid (GHB) or MDMA or ecstasy as proscribed by section 44-53-370(e). Section 44-53-370(e) states: "Notwithstanding Section 44-53-420, a person convicted of conspiracy pursuant to this subsection must be sentenced as provided in this section with a full sentence or punishment and not one-half of the sentence or punishment prescribed for the offense."²⁵⁴ Thus, because "[l]aws giving specific treatment to a given situation take precedence over general laws on the subject"²⁵⁵ defendants convicted of conspiracy to traffic in the enumerated controlled substances do not receive the benefit of the lesser sentence under section 44-53-420 and will be sentenced as if they committed the substantive crime of trafficking in the enumerated drug. "Clearly, the plain and unambiguous language of section 44-53-370(e) reflects a legislative intent that those guilty of conspiring to traffic drugs thereunder are subject to the full sentence for the offense, rather than the one-half sentence provided in section 44-53-420."²⁵⁶

Conspiracy to traffic methamphetamine (ice, crank, crystal meth) or cocaine base (crack cocaine) under section 44-53-375(C) does not contain a similar sentencing provision regarding conspiracy. This omission raises the obvious issue of whether a trafficking in methamphetamine (ice, crank, crystal meth) or cocaine base (crack cocaine) by a conspiracy defendant would be sentenced to a full sentence under section 44-53-375(C) or whether the defendant will receive the benefit of section 44-53-420(A) providing for one-half the trafficking sentence for conspiracy. South Carolina appellate courts have not addressed this issue.

South Carolina appellate courts, however, have held that section 44-53-375's provisions regarding the same offenses as 44-53-370 do not define separate offenses but only enhance sentence because methamphetamine (ice, crank, crystal meth) and cocaine base (crack cocaine) are Schedule II substances that would be subject to the penalties of section 44-53-370 but for the provisions of section 44-53-375.²⁵⁷ According to the courts' rationale, the cocaine base (crack cocaine) or methamphetamine (ice, crank, crystal meth) offender violates section 44-53-370 but is sentenced under section 44-53-375.²⁵⁸

The cardinal rule of statutory construction is to ascertain and effectuate the intention of the legislature. However, statutes must be read as whole, and