Mar 24, 2012 | Car Accidents, Personal Injury, Uncategorized
This case makes a critical distinction between tort law and contract causes of action. Here, the alleged defect in the product (cruise control in truck) only resulted in harm to the product itself. Fortunately, the defect did not cause an accident that injured or killed. Rather, the vehicles caught fire and were consumed. As a result, the Court affirmed that the only recovery available to the vehicle owners was under contract liability, not a tort action. Tort liability is only an option where a product defect causes harm to other property or personal injury. This distinction is critical is determining what damages you can seek. Of course, we are always grateful when only property damage is involved. Property can always be replaced. You and your family cannot.
At Reeves, Aiken & Hightower, LLP, all of our attorneys are seasoned trial lawyers with over 70 years combined experience. Whether it is criminal or civil, our litigators are regularly in Court fighting for our clients. Two of our firm’s partners, Art Aiken and Robert Reeves, are inducted lifetime members of the Million Dollar Advocates Forum. Mr. Reeves has also been named one of the Top 100 lawyers for South Carolina in 2012 by the National Trial Lawyers Organization. Our attorneys include a former SC prosecutor, a former public defender, a former NC District Attorney intern, a former Registered Nurse (RN), and former insurance defense attorneys. As a result of their varied backgrounds, they understand the potential criminal, insurance, and medical aspects of complex injury cases. We would welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials to any other law firm. Then call us today at 877-374-5999 for a private consultation. Or visit our firm’s website at www.rjrlaw.com.
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Jeffrey M. Sapp, Jr., Appellant,
v.
Ford Motor Company, Respondent.
Appeal from Jasper County
John C. Few, Circuit Court Judge
and
Bryan D. Smith, Appellant,
v.
Ford Motor Company, Respondent.
Appeal from York County
S. Jackson Kimball, III, Special Circuit Court Judge
Opinion No. 26754
Heard April 21, 2009 – Filed December 21, 2009
AFFIRMED IN RESULT
Karl S. Brehmer and L. Darby Plexico, III, both of Brown & Brehmer, Columbia, for Appellants Jeffrey M. Sapp, Jr. and Bryan D. Smith.
Curtis Lyman Ott and Carmelo B. Sammataro, both of Turner Padget Graham & Laney, of Columbia, for Respondent.
Ryan A. Earhart, Erin E. Richardson, and Patrick C. Wooten, all of Nelson, Mullins, Riley & Scarborough, of Charleston, for amicus curiae South Carolina Defense Trial Attorneys’ Association.
CHIEF JUSTICE TOAL: In these consolidated appeals, the trial courts found the economic loss rule precluded Appellants’ tort claims and granted judgment in favor of Respondent Ford Motor Company. We affirm the dismissal, and overrule Colleton Preparatory Academy, Inc. v. Hoover Universal Inc., 379 S.C. 181, 666 S.E.2d 247 (2008) to the extent it expands the narrow exception to the economic loss rule articulated in Kennedy v. Columbia Lumber & Mfg. Co., 299 S.C. 335, 384 S.E.2d 730 (1989).
FACTUAL/PROCEDURAL BACKGROUND
I. Sapp Appeal
In 2004, Appellant Jeffrey M. Sapp purchased a 2000 Ford F-150 truck from Atlantic Coast Construction for $5,000. The truck had 190,000 miles on it at the time of sale and Sapp bought it “as is.” On May 16, 2005, while Sapp was driving the truck, the cruise control stopped working, and the truck caught fire shortly after Sapp parked.
The fire did not injure Sapp or damage any property other than the vehicle itself. He filed a claim with his insurance company, and approximately three months later, the truck was repaired and returned to him. The repair costs were approximately $7,000.
Sapp filed suit against Ford alleging causes of action for negligence, strict liability, breach of warranty, and fraud/misrepresentation. Sapp alleged Ford knew of a design defect in the cruise control switch, which would short circuit and cause a fire in the engine compartment. The trial court granted summary judgment as to all causes of action and specifically found that the economic loss rule precluded the tort claims.
II. Smith Appeal
On January 31, 2006, Appellant Bryan D. Smith’s 2000 Ford F-150 truck caught fire and was completely destroyed. Smith filed suit against Ford alleging causes of action for negligence, strict liability, breach of warranty, and negligent misrepresentation. Smith alleged Ford knew of the same design defect alleged in Sapp’s complaint. The master-in-equity dismissed Smith’s tort claims pursuant to the economic loss rule.
STANDARD OF REVIEW
Summary judgment is appropriate where there is no genuine issue of material fact and it is clear that the moving party is entitled to a judgment as a matter of law. Rule 56(c), SCRCP. In determining whether any triable issues of fact exist, the evidence and all inferences that can be reasonably drawn from the evidence must be viewed in the light most favorable to the nonmoving party. Koester v. Carolina Rental Ctr., 313 S.C. 490, 493, 443 S.E.2d 392, 394 (1994).
Any party may move for a judgment on the pleadings under Rule 12(c), SCRCP. A judgment on the pleadings is proper where there is no issue of fact raised by the complaint that would entitle plaintiff to judgment if resolved in plaintiff’s favor. Russell v. City of Columbia, 302 S.C. 86, 89, 406 S.E.2d 338, 339 (1991).
LAW/ANALYSIS
Appellants argue the trial courts erred in granting summary judgment based on the economic loss rule. We disagree.
The economic loss rule is a creation of the modern law of products liability. Under the rule, there is no tort liability for a product defect if the damage suffered by the plaintiff is only to the product itself. Kennedy v. Columbia Lumber & Mfg. Co., 299 S.C. 335, 341, 384 S.E.2d 730, 734 (1989). In other words, tort liability only lies where there is damage done to other property or personal injury. Id.
The purpose of the economic loss rule is to define the line between recovery in tort and recovery in contract. Contract law seeks to protect the expectancy interests of the parties. Tort law, on the other hand, seeks to protect safety interests and is rooted in the concept of protecting society as a whole from physical harm to person or property. In the context of products liability law, when a defective product only damages itself, the only concrete and measurable damages are the diminution in the value of the product, cost of repair, and consequential damages resulting from the product’s failure. Stated differently, the consumer has only suffered an economic loss. The consumer has purchased an inferior product, his expectations have not been met, and he has lost the benefit of the bargain. In this instance, however, the risk of product failure has already been allocated pursuant to the terms of the agreement between the parties. On the other hand, the parties have not bargained for the situation in which a defective product creates an unreasonable risk of harm and causes personal injury or property damage. Accordingly, where a product damages only itself, tort law provides no remedy and the action lies in contract; but when personal injury or other property damage occurs, a tort remedy may be appropriate.
In Kennedy, we held the economic loss rule does not preclude a homebuyer from recovering in tort against the developer or builder where the builder violates an applicable building code, deviates from industry standards, or constructs a house that he knows or should know will pose a serious risk of physical harm. Such an exception was and still remains necessary to protect homeowners. As explained in Kennedy, the mechanics of home purchasing have evolved and drastically changed over the past two hundred years and, accordingly, courts have shifted from following the doctrine of caveat emptor (“let the buyer beware”) to the doctrine ofcaveat venditor (“let the seller beware”).[1] A home is typically an individual’s single largest investment and is a completely different type of manufactured good than any other type of product that a consumer will buy. Moreover, courts have recognized that the transaction between a builder and a buyer for the sale of a home largely involves inherently unequal bargaining power between the parties. For these reasons, we created this narrow exception to the economic loss rule to apply solely in the residential home context.
The rule announced in Kennedy followed a long line of South Carolina cases directed toward protecting consumers only in the residential home building context,[2] and we noted that this holding followed cases from around the country expanding protections afforded to homebuyers and imposing tort liability on residential homebuilders.[3]
In Colleton Preparatory Academy, Inc. v. Hoover Universal Inc., 379 S.C. 181, 666 S.E.2d 247 (2008), this Court was faced with the issue of whether to expand the Kennedy exception to the economic loss rule beyond the residential home building context to all manufacturers. The majority held that the economic loss rule will not preclude a plaintiff from filing a products liability suit in tort where only the product itself is injured when the plaintiff alleges breach of duty accompanied by a clear, serious, and unreasonable risk of bodily injury or death. The dissent argued that this decision not only broadly expanded the exception to the economic loss rule, but also completely altered the law on products liability in South Carolina. In our view, the traditional economic loss rule provides a more stable framework and results in a more just and predictable outcome in products liability cases. Accordingly, we overrule Colleton Prep to the extent it expands the narrow exception to the economic loss rule beyond the residential builder context.
Furthermore, like the dissent in Colleton Prep, we, too, are cautious in permitting negligence actions where there is neither personal injury nor property damage. Imposing liability merely for the creation of risk when there are no actual damages drastically changes the fundamental elements of a tort action, makes any amount of damages entirely speculative, and holds the manufacturer as an insurer against all possible risk of harm. Carolina Winds Owners’ Ass’n, Inc. v. Joe Harden Builder, Inc., 297 S.C. 74, 87, 374 S.E.2d 897, 905 (Ct. App. 1988).
The Kennedy opinion did not signal a watershed moment in products liability law in South Carolina, nor did it alter the application of the economic loss rule in products liability cases. The Kennedy court specifically noted that “[t]he ‘economic loss rule’ will still apply where duties are created solely by contract. In that situation, no cause of action in negligence will lie.” Kennedy, 299 S.C. at 347, 384 S.E.2d at 737. Several opinions from the federal courts that were issued prior to Kennedy found South Carolina’s economic loss rule precluded a negligence action against a manufacturer,[4] and subsequent cases found that, in light of and notwithstanding Kennedy, the economic loss rule prohibited negligence actions against a manufacturer where duties were created solely by contract and where the product only injured itself or where the damage was contemplated by the parties’ contract.[5] We conclude the federal courts were correct in this regard.
At the time of our decision in Kennedy, we had no intention of the exception extending beyond residential real estate construction and into commercial real estate construction. Such a progression was in error and we now correct that expansion. Much less did we intend the exception to the economic loss rule to be applied well beyond the scope of real estate construction in an ordinary products liability claim. We emphasize the exception announced in Kennedy is a very narrow one, applicable only in the residential real estate construction context.
Turning to the merits of the instant appeals, we hold the trial courts properly granted judgment in favor of Ford on Appellants’ tort claims. The only damage caused by the defect in the trucks was damage to the trucks themselves – purely an economic loss to Appellants. Therefore, the economic loss rule precludes Appellants’ recovery in tort.
CONCLUSION
For the above reasons, we affirm the ruling of the trial courts.
PLEICONES and KITTREDGE, JJ., concur. WALLER, J., concurring in result only. BEATTY, J., concurring in result only in a separate opinion.
JUSTICE BEATTY (concurring in result): I concur but write separately. This Court heralded a change in its view of the economic loss rule in Kennedy v. Columbia Lumber & Mfg. Co., 299 S.C. 335, 384 S.E.2d 730 (1989). The Court gave no indication that its new analytical framework was limited to residential housing construction. In proclaiming its new framework, the Court set about a review of the Court of Appeals’ economic loss analysis in Carolina Winds Owners’ Ass’n v. Joe Harden Builder, Inc., 297 S.C. 74, 374 S.E.2d 897 (Ct. App. 1988). In rejecting the opinion of the Court of Appeals, this Court concluded that the traditional analysis of the economic loss rule was problematical. The Court, referring to the analysis of the Court of Appeals, stated:
Where a purchaser’s expectations in a sale are frustrated because the product he bought is not working properly, his remedy is said to be in contract alone, for he has suffered only “economic” losses. Conversely, where a purchaser buys a product which is defective and physically harms him, his remedy is in either tort or contract. This is so, the analysis provides, because his losses are more than merely “economic.”
We find that this legal framework generates difficulties. This is so because the framework’s focus is on consequence, not action. Builder “A” and Builder “B” can be equally blameworthy, and build equally shoddy housing, but because Builder “A”‘s negligence happened to be discovered early enough, no one was harmed. It hardly seems fair that Builder “A” should profit from a diligent buyer’s discovery, or because he was fortunate.
The framework we adopt focuses on activity, not consequence. If a builder performs construction in such a way that he violates a contractual duty only, then his liability is only contractual. If he acts in a way as to violate a legal duty, however, his liability is both in contract and in tort.
A builder is no less blameworthy in such a case where lady luck has smiled upon him and no physical harm has yet occurred. We discounted the necessity of showing physical harm in Terlinde, 275 S.C. 395, 271 S.E.2d 768 (1980), in which we considered and declined to adopt arguments asserting the “economic loss” rule contained in theTerlinde briefs.
Kennedy, 299 S.C. at 345-46, 384 S.E.2d at 736-37 (emphasis added).
Today, this Court would overrule Colleton Preparatory Acad., Inc. v. Hoover Universal, Inc., 379 S.C. 181, 666 S.E.2d 247 (2008).[i] Colleton adheres to the Kennedy analysis framework. If it is wrongly decided, then Kennedy should be overruled as well and this Court should simply say that the economic loss rule is not applicable to residential home building. Of course, this would not explain the negative treatment of the rule in other areas such as professional services. See Tommy L. Griffin Plumbing & Heating v. Jordan, Jones & Goulding, Inc., 320 S.C. 49, 55, 463 S.E.2d 85, 88-89 (1995) (finding design professionals, including engineers, may have a duty separate and distinct from contractual duties such that the economic loss doctrine would not prohibit a tort action);Beachwalk Villas Condo. Ass’n v. Martin, 305 S.C. 144, 146-47, 406 S.E.2d 372, 374 (1991) (finding a special duty for architects);Lloyd v. Walters, 276 S.C. 223, 226, 277 S.E.2d 888, 889 (1981) (finding an attorney liable for economic loss to a corporate shareholder when attorney breached a duty to the corporation); but see McCullough v. Goodrich & Pennington Mortgage Fund, Inc., 373 S.C. 43, 53, 644 S.E.2d 43, 49 (2007) (rejecting the notion of a special duty in the secured transactions arena).
The inconsistent treatment of the doctrine, by use of varying analytical frameworks, does not provide the bench and bar guidance in the proper application of the doctrine. The Court should simply pronounce a list of areas to which public policy prohibits the application of the economic loss doctrine and forego any legal analysis.
[1] A more complete history of the evolution of the law in this area, along with several additional useful sources, can be found atKennedy, 299 S.C. at 342-44, 384 S.E.2d at 735-36.
[2] See Roundtree Villas Ass’n, Inc. v. 4701 Kings Corp., 282 S.C. 415, 321 S.E.2d 46 (1984) (holding that where the lender undertook to repair defects in the housing units in order to facilitate further sales, the lender could be held liable in tort for negligent repairs); Terlinde v. Neely, 275 S.C. 395, 271 S.E.2d 768 (1980) (holding that a subsequent purchaser of a home may pursue a cause of action in contract or tort against a developer); Lane v. Trenholm Bldg. Co., 267 S.C. 497, 229 S.E.2d 728 (1976) (holding that when a new building is sold, there is an implied warranty of fitness for its intended use which springs from the sale itself);Rutledge v. Dodenhoff, 254 S.C. 407, 175 S.E.2d 792 (1970) (recognizing that a builder-vendor of a new home gives its purchasers an implied warranty of fitness); Rogers v. Scyphers, 251 S.C. 128, 161 S.E.2d 81 (1968) (recognizing a builder’s duty to refrain from constructing housing it knows or should know will pose a serious risk of physical harm).
[3] See Huang v. Garner, 203 Cal. Rptr. 800 (Cal. App. 1984); Barnes v. Mac Brown & Co., 342 N.E.2d 619 (Ind. 1976); Village Cross Keys Inc. v. The United States Gypsum Co., 556 A.2d 1126 (Md. 1989); Oates v. JAG, Inc., 333 S.E.2d 222 (N.C. 1985); New Mea Construction Corp. v. Harper, 497 A.2d 534 (N.J. 1985); Sewell v. Gregory, 371 S.E.2d 82 (W. Va. 1988).
[4] See Laurens Electric Cooperative v. Altec Industries, 889 F.2d 1323 (4th Cir. 1989) (prohibiting a products liability claim where the only injury sustained was to the product itself); 2000 Watermark Ass’n v. Celotex Corp., 784 F.2d 1183 (4th Cir. 1986) (prohibiting a tort claim against a defendant who negligently installed defective shingles pursuant to our economic loss rule); Purvis v. Consolidated Energy Products Co., 674 F.2d 217 (4th Cir. 1982) (holding under South Carolina’s economic loss rule, a tobacco farmer could not maintain an action against a barn manufacturer because his only injury was an economic loss to his tobacco crop and the barn itself).
[5] See Palmetto Linen Service, Inc. v. U.N.X., Inc., 205 F.3d 126 (4th Cir. 2000) (upholding the dismissal of plaintiff’s negligence claim pursuant to South Carolina’s economic loss rule where defendant’s chemical dispensing system harmed only plaintiff’s linens because the destruction of the linens was a “natural and foreseeable result of a malfunction” and the parties contemplated this allocation of risk in their contract); Myrtle Beach Pipeline Corp. v. Emerson Elec. Co., 843 F. Supp. 1027 (D.S.C. 1993), aff’d, 46 F.3d 1125 (4th Cir. 1995) (dismissing plaintiff’s tort claim where defendant’s product, an air eliminator, ruptured causing an oil spill because plaintiff’s loss was only to the defective air eliminator since plaintiff did not own the property which the defective air eliminator damaged).
[i] Colleton Preparatory Academy, Inc. limited recovery to the cost of repair suffered by the plaintiff even in a tort action when there is no bodily injury. However, it did not require the plaintiff to wait until injury occurred to bring an action in tort.
Mar 24, 2012 | DUI & DWI, Uncategorized
According the article below, it looks like the federal government is taking a real interest in mandating ignition interlock devices be installed in new vehicles in the future. Such devices are already required in parts of Europe. At least the comments made by the quoted legislator make a distinction between the “drunk driver” and the person who simply has a drink with dinner or a beer with a friend. Unfortunately, the current technology can produce false results and may inhibit otherwise sober drivers from getting their car to start and be left stranded. Oh well. That’s the price the majority of responsible drivers seemingly will have to pay for the sins of those who cannot be trusted to drive safely. Seriously, state DUI laws and now federal intervention are beoming so intrusive that it is simply not prudent to have any alcohol outside of your home. Perhaps this result is the end game goal. However, perfectly safe to drive individuals are being falsely arrested and prosecuted in the current DUI hysteria. We have effectively “thrown the baby out with the bath water.” Let’s be clear. Obviously, no one wants truly “drunk drivers” on the road. However, at some point, we have to have an effective balance so that innocent drivers are not branded with a DUI conviction on their permanent driving record. And, in this very difficult economy, the fines, court costs, alcohol programs, and SR-22 insurance can destroy a family’s finances as they try to “make ends meet.” All a reasonable person wants here is more selective arrests by police and more considered discretion by prosecutors. In the final analysis, it should be remembered that not everyone who has the “smell of alcohol” is guilty of drunk driving. If you or your family member have been arrested for a SC DUI or NC DWI, you should immediately consult an experienced DUI attorney and see what options are available to you before your driving record is ruined by a false charge of “driving under the influence” or “driving while impaired.” We hope that you will consider our firm after you review our credentials and experience in this complicated area of criminal law.
At Reeves, Aiken & Hightower LLP, our seasoned attorneys have over 70 years of combined trial experience in both civil and criminal courts. We focus our criminal practice on DUI and DWI cases in both South Carolina and North Carolina and are available by mobile phone in the evenings, on weekends, and even holidays. Our lawyers are licensed in both states and are aggressive criminal trial attorneys. We are not afraid to go to Court and often do. Don’t settle for a lawyer who only wants to reduce your DUI charges to reckless driving. We welcome the opportunity to sit down and personally discuss your case. Compare our attorneys’ credentials to any other firm. Then call us today at 877-374-5999 for a private consultation. Or visit our firm’s website at www.rjrlaw.com.
Washington Examiner by Paul Bedard
Not satisfied with putting federal restrictions on driver distractions like cellular phones, the federal government is pursuing technology to prevent cars from starting if drivers are legally drunk–even if they don’t have a DUI record.
Urged on by anti-alcohol groups like Mothers Against Drunk Driving, the Senate on a bipartisan vote OK’d a little-known amendment to the just-passed highway bill to provide $24 million over two years to study the “Driver Alcohol Detection System for Safety,” a Transportation Department project to put booze detectors in all new cars this decade.
The inevitability that the government will get its way is so great that car makers tell Washington Secrets that they are already planning how to introduce the voluntary systems, likely fingertip sensors on steering wheels or start buttons. The French already require a Breathalyzer system in new cars.
The American Beverage Institute, which represents thousands of restaurants, has mounted a campaign to kill the provision in the House version of the bill. ABI Managing Director Sarah Longwell said while the goal of ending drunk driving is admirable, bad readings by the system in tests show that an estimated 4,000 sober drivers a day won’t be able to start their cars, potentially scaring diners from restaurants.
But others in the alcohol industry have jumped on board and were able to block the Senate legislation from making the systems mandatory. One industry official said it’s more likely the system would be an option on cars, though some Transportation Department documents suggest it will be standard equipment.
A spokesman for Sen. Tom Udall, D-N.M., a sponsor of the initiative, cautioned that installation of car alcohol detection systems are years off and that the plan now is to simply find the easiest and most accurate technology. What’s more, he said that the goal is not to stop responsible drinkers from downing a beer at dinner, but target drunks responsible for thousands of deaths annually.
Mar 20, 2012 | Criminal Defense, Homicide Defense, Uncategorized
At Reeves, Aiken & Hightower LLP, our attorneys have over 70 years of combined trial experience in both civil and criminal courts. We are available by mobile phone in the evenings, on weekends, and even holidays. Our lawyers are licensed in both South Carolina and North Carolina and are effective criminal trial attorneys. We are not afraid to go to Court and often do. Tyler Burns is a former 16th Circuit (York County) prosecutor and Art Aiken is a accomplished criminal attorney who has tried virtually every type of criminal case in both state and federal courts. And, Bea Hightower is a former Richland County public defender in Columbia. We welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials and experience to any other law firm. Then call us at 877-374-5999 for a private consultation. Or visit our firm’s website at www.rjrlaw.com.
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Craig S. Rolen, Petitioner,
v.
State of South Carolina, Respondent.
ON WRIT OF CERTIORARI
Appeal from Greenville County
James E. Lockemy, Circuit Court Judge
Opinion No. 26678
Submitted December 4, 2008 – Filed June 29, 2009
REVERSED
Deputy Chief Appellate Defender Wanda H. Carter, of South Carolina Commission on Indigent Defense, of Columbia, for Petitioner.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Karen Ratigan, all of Columbia, for Respondent.
CHIEF JUSTICE TOAL: Petitioner Craig Rolen pled guilty to voluntary manslaughter and was sentenced to twenty-five years imprisonment. Petitioner filed an application for post-conviction relief (PCR) alleging that counsel was ineffective for failing to move to withdraw his guilty plea. The PCR court denied relief. This Court granted a writ of certiorari to review that decision.
FACTUAL/PROCEDURAL BACKGROUND
On October 4, 2001, Kedrick Mahon’s (Victim) decomposed body was found in Petitioner’s car at the bottom of a ravine. Petitioner was arrested for Victim’s murder on July 16, 2003.[1] In September 2004, Petitioner contacted police and confessed to the murder and was subsequently charged.
Petitioner requested a trial and a jury was selected. However, immediately before trial, Petitioner decided to plead guilty. At the plea hearing, the solicitor told the plea judge that Petitioner confessed to stabbing the victim and driving the car into the ravine. Petitioner told the plea judge that he voluntarily made the confession and admitted to committing the murder. The plea judge formally accepted Petitioner’s plea as voluntary and having a substantial factual basis. After members of Victim’s family addressed the court, Petitioner suddenly exclaimed:
All right, this has went on far enough, I didn’t kill this man. This has went too far, I ain’t doing this. I didn’t kill your brother . . . I didn’t kill this man, I can’t do this . . . I don’t know who did, I wish I did . . . I swear to God I didn’t do it . . . Should have never pled guilty, I didn’t do this.
Counsel did not move to withdraw the plea, and the plea judge sentenced Petitioner to twenty-five years imprisonment.
At the PCR hearing, Petitioner testified that the State previously offered him a deal to plead guilty to accessory after the fact to murder with a ten-year cap, but he turned down the offer because he was innocent. He testified he was depressed, suicidal, and heavily medicated at the time he gave his confession to police and that he confessed in hopes of receiving the death penalty. Petitioner stated that he pled guilty because counsel told him that the jury that had been impaneled would likely find him guilty. Finally, Petitioner testified that counsel did not inform him of his right to appeal his guilty plea.
Counsel testified that he requested a competency test for Petitioner because he was concerned about Petitioner’s mental state and that Petitioner attempted to commit suicide following the test.[2] Counsel stated that he did not move to withdraw the plea because he believed once the plea was accepted, it was final and could not be withdrawn. Counsel testified that he did not recall whether he discussed Petitioner’s appellate rights with him.
The PCR court found that counsel was not ineffective for failing to move to withdraw Petitioner’s guilty plea. The PCR court also found that counsel informed Petitioner of his right to appeal, but regardless, counsel was under no obligation to advise Petitioner of his right to appeal. Accordingly, the PCR court denied Petitioner relief.
This Court granted Petitioner’s request for a writ of certiorari, and Petitioner presents the following issues for review:
| Did the PCR court err in ruling that counsel was not ineffective for failing to move to withdraw Petitioner’s guilty plea? |
| Did the PCR court err in ruling Petitioner was not entitled to a belated direct appeal? |
STANDARD OF REVIEW
The burden of proof is on the applicant in post-conviction proceedings to prove the allegations in his application. Butler v. State, 286 S.C. 441, 442, 334 S.E.2d 813, 814 (1985). On appeal, the PCR court’s ruling should be upheld if it is supported by any evidence of probative value in the record. Cherry v. State, 300 S.C. 115, 119, 386 S.E.2d 624, 626 (1989).
LAW/ANALYSIS
I. Withdrawal of Guilty Plea
Petitioner argues that the PCR court erred in ruling that counsel was not ineffective for failing to move to withdraw Petitioner’s guilty plea. We agree.
In order for a defendant to knowingly and voluntarily plead guilty, he must have a full understanding of the consequences of his plea. Boykin v. Alabama, 395 U.S. 238, 241 (1969). A defendant who enters a plea on the advice of counsel may only attack the voluntary and intelligent character of a plea by showing that counsel’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel’s errors, the defendant would not have pled guilty, but would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52 (1985). When determining issues relating to guilty pleas, the Court will consider the entire record, including the transcript of the guilty plea, and the evidence presented at the PCR hearing. Anderson v. State, 342 S.C. 54, 57, 535 S.E.2d 649, 657 (2000).
We find that counsel was deficient in failing to move to withdraw Petitioner’s guilty plea. Petitioner requested a jury trial and only decided to plead guilty after counsel advised him that the impaneled jury would likely find him guilty. Petitioner repeatedly asserted his innocence during the plea hearing before the plea judge sentenced him. In our view, at this point in the hearing, it was clear that Petitioner wanted to withdraw his guilty plea.
While counsel was deficient in failing to move to withdraw Petitioner’s guilty plea, we must determine whether Petitioner was prejudiced by counsel’s performance. The plea judge had formally accepted the guilty plea prior to Petitioner’s protestation of his innocence. Therefore, even if counsel had moved to withdraw the guilty plea, the plea judge may have denied this request, and Petitioner could not have proceeded to trial. See State v. Riddle, 278 S.C. 148, 150, 292 S.E.2d 795, 796 (1982) (holding that the withdrawal of a guilty plea is generally within the sound discretion of the trial court). In this way, the prejudice analysis in this case does not fit squarely within the traditional guilty plea prejudice framework as set forth in Hill. Nonetheless, we hold that Petitioner was prejudiced by counsel’s deficient performance because due to counsel’s failure to make such a motion, the plea judge was not able to exercise his discretion. Even if the plea judge had denied Petitioner’s motion to withdraw his plea, Petitioner could have raised this issue on direct appeal. Moreover, Petitioner proved he would have insisted on going to trial had the plea judge granted the motion to withdraw.
Accordingly, we hold that counsel was ineffective for failing to move to withdraw Petitioner’s guilty plea. However, we find that granting Petitioner the relief of an entire new plea hearing is inappropriate. Once the plea judge found that Petitioner’s plea was voluntary and supported by a factual basis and formally accepted the plea of guilt, Petitioner forfeited his ability to withdraw the plea as a matter of right. State v. Bickham, Op. No. 26581 (S.C. Sup. Ct. filed Jan. 12, 2009) (Shearouse Adv.Sh. No.2 at 43) (Kittredge, J., concurring). Accordingly, we remand the case to the point in the guilty plea proceeding in which counsel should have sought to withdraw the plea. In our view, this tailored relief remedies the precise prejudice resulting from plea counsel’s deficient performance.[3] See United States v. Morrison, 449 U.S. 361, 364 (1981) (recognizing that the remedy for a violation of the Sixth Amendment right to counsel “should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests”).
II. Belated Direct Appeal
Petitioner argues that the PCR court erred in ruling he was not entitled to a belated direct appeal. We decline to address this issue.
Absent extraordinary circumstances, there is no constitutional requirement that a defendant be informed of the right to a direct appeal from a guilty plea, and the bare assertion that a defendant was not advised of appellate rights is insufficient to grant relief. Weathers v. State, 319 S.C. 59, 61, 459 S.E.2d 838, 839 (1995). Instead, there must be proof that extraordinary circumstances exist, such as where a defendant inquires about an appeal, in order for counsel to be required to advise a defendant of the right to appeal. Id.
We decline to rule on whether the PCR court erred in finding that Petitioner was not entitled to a belated direct appeal. Had Petitioner filed a direct appeal, any issues regarding withdrawal of the guilty plea would not have been preserved for the appellate court’s review because counsel never made such a motion. Additionally, as stated above, we hold that counsel was ineffective for failing to make a motion to withdraw, and thus, the most appropriate relief is a new plea hearing. Because we find that a belated direct appeal would not afford Petitioner suitable relief, a ruling from the Court on this matter would have no practical effect. See Seabrook v. Knox, 369 S.C. 191, 197, 631 S.E.2d 907, 910 (2006) (recognizing that this Court will not decide questions in which a judgment rendered will have no practical legal effect).
CONCLUSION
For the foregoing reasons, we reverse the PCR court’s order denying relief and remand the case to the point after formal acceptance of the guilty plea. If the plea court grants the motion to withdraw the plea, the case shall be placed on the trial docket and proceed in the usual manner; if the court denies the motion to withdraw the plea, the prior sentence will stand, and Petitioner may pursue his right to a direct appeal.
WALLER, BEATTY and KITTREDGE, JJ., concur. PLEICONES, J., dissenting in a separate opinion.
JUSTICE PLEICONES: I respectfully dissent. We granted certiorari to review a post-conviction relief (PCR) order denying petitioner’s claim that his trial counsel was ineffective in failing to move to withdraw petitioner’s plea. Since the question of “ineffectiveness” embraces both deficient performance and prejudice, we err if we decline to make a finding on both prongs. I would find no prejudice, and affirm.
Where an applicant claims his guilty plea counsel was ineffective, that applicant bears the burden of showing both that counsel’s performance was deficient and that the deficient performance resulted in prejudice, that is, it affected the outcome of the plea process. Hill v. Lockhart, 474 U.S. 52 (1985). Ordinarily “prejudice” is established by evidence that had counsel not been deficient, there is a reasonable probability that the applicant would not have pled guilty but would instead have insisted on going to trial.[4] Id. As the Hill Court recognized, a determination of prejudice in this context will depend on the likelihood that had counsel done that which the applicant asserts he should have, counsel’s act would have been successful, i.e., had counsel investigated, he would have found evidence causing him to change his advice to plead guilty. The Court acknowledged that in judging prejudice, it was necessary to make objective “predictions of the outcome at a possible trial.” Id. at 59-60.
Speculation is a necessary component of most PCR cases since prejudice is judged by the “reasonable probability” standard: would the jury have acquitted had it not heard the improper evidence? Would the trial judge have suppressed the evidence had a suppression motion been made? Where, as here, counsel’s deficiency is the failure to request some form of relief committed to the trial judge’s discretion, the PCR applicant establishes prejudice by demonstrating that had the request been made, it would have been an abuse of discretion to have denied it. E.g., Wolfe v. State, 326 S.C. 158, 485 S.E.2d 367 (1997) (continuance).
Here, the majority holds counsel was deficient in failing to make a motion to withdraw petitioner’s plea. It acknowledges that whether to grant such a request lies in the plea judge’s discretion. The Court then declines to decide whether petitioner has shown the requisite prejudice – i.e., whether it would have been an abuse of discretion to have denied the motion if made. Instead, the majority appears to create a new standard of prejudice: counsel renders ineffective assistance when she neglects to preserve an issue, whether or not that issue has merit, for direct appeal. Under this standard, the remedy is not a new proceeding, but instead a rewind,[5] returning all characters to the point in the guilty plea when petitioner maintains the motion to withdraw should have been made. Among the unanswered questions raised by this extraordinary remedy,[6] is whether, henceforth, a PCR judge who finds deficient performance will be able to avoid the prejudice issue by remanding the matter to criminal court.
The majority goes on to hold that if the motion is made and then denied, petitioner may appeal from this ruling made in the new proceeding. While ordinarily the State would not be able to appeal the granting of a motion to withdraw a guilty plea made in the plea proceeding, I question whether such an appeal would lie from a ruling on remand.
On the merits, I agree that counsel was deficient when she failed to move to withdraw petitioner’s guilty plea. I do not find the requisite prejudice, however, since I do not find a reasonable probability that had such a motion been made it would have been granted. First, had the plea judge believed the integrity of the plea was in question, he should have sua sponte refused to continue. In my view, it is more likely that he viewed petitioner’s outburst as unfortunate but not unusual. Since I find no prejudice from counsel’s deficient performance, I would affirm the order denying petitioner’s PCR application.
[1] Petitioner testified at the PCR hearing that after he was arrested on the murder charges, he was released on bond and placed on house arrest.
[2] Petitioner was found competent to stand trial.
[3] We disagree with the dissent’s assertion that we are creating a new standard of prejudice or that this tailored relief is an extraordinary remedy. Rather, we have merely provided a remedy for what we find, under the specific facts of this case, to be ineffective assistance of counsel. See Morrison, at 365 (noting that the United States Supreme Court’s “approach has thus been to identify and then neutralize the taint by tailoring relief appropriate in the circumstances to assure the defendant the effective assistance of counsel”); see also Davie v. State (holding plea counsel was ineffective for failing to communicate a plea offer and crafting specific relief to remedy the violation).
[4] A different prejudice analysis is appropriate where, for example, the ineffective assistance claim is that plea counsel failed to communicate a plea offer. Davie v. State, 381 S.C. 601, 675 S.E.2d 416 (2009).
[5] Although characterized as a remand, such a remand is not possible since the matter before us is a civil action brought in the Court of Common Pleas, and the “remand” would be to a long-concluded proceeding in the Court of General Sessions.
[6] While the United States Supreme Court has held that in a direct appeal raising a claim of a 6th amendment violation the relief must be tailored based upon the violation, the Court still required the defendant demonstrate prejudice in order to receive relief in her criminal proceeding. United States v. Morrison, 449 U.S. 361, 366-367.
Mar 20, 2012 | Criminal Defense, Uncategorized
At Reeves, Aiken & Hightower LLP, our attorneys have over 70 years of combined trial experience in both civil and criminal courts. We are available by mobile phone in the evenings, on weekends, and even holidays. Our lawyers are licensed in both South Carolina and North Carolina and are effective criminal trial attorneys. We are not afraid to go to Court and often do. Tyler Burns is a former 16th Circuit (York County) prosecutor and Art Aiken is a accomplished criminal attorney who has tried virtually every type of criminal case in both state and federal courts. And, Bea Hightower is a former Richland County public defender in Columbia. We welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials and experience to any other law firm. Then call us at 877-374-5999 for a private consultation. Or visit our firm’s website at www.rjrlaw.com.
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Terrence D. Terry, Respondent,
v.
State of South Carolina, Petitioner.
ON WRIT OF CERTIORARI
Appeal From Greenville County
Honorable Michael G. Nettles, Circuit Court Judge
Opinion No. 26683
Submitted May 28, 2009 – Filed July 13, 2009
REVERSED
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott and Assistant Attorney General Karen C. Ratigan, all of Columbia, for Petitioner.
Appellate Defender Robert M. Pachak, of South Carolina Commission on Indigent Defense, of Columbia, for Respondent.
JUSTICE BEATTY: This Court granted the State’s petition for a writ of certiorari to review the post-conviction relief (PCR) judge’s order reversing Terrence Dimingo Terry’s (Respondent’s) plea of guilty to criminal sexual conduct (CSC) with a minor, first degree and two counts of lewd act upon a child. We reverse.
FACTUAL/PROCEDURAL HISTORY
After Respondent’s nine-year-old stepdaughter disclosed to her mother that Respondent had sexually abused her in July 2004, Mother confronted Respondent about the allegations. During this confrontation, it was revealed that Respondent’s two other stepdaughters, ages eleven and twelve years old, had also been sexually abused by Respondent.
Subsequently, a family court proceeding brought by the Department of Social Services was conducted wherein Respondent admitted to the allegations. As a result, a treatment plan was put into effect to address Respondent’s conduct.
In February 2005, a Greenville County grand jury indicted Respondent for two counts of lewd act upon a child involving the older two stepdaughters and one count of CSC with a minor, first degree regarding the allegations of the nine-year-old stepdaughter.
The next month, Respondent pled guilty to each of the three indicted offenses. At the plea proceeding, the circuit court judge inquired about Respondent’s background in terms of his age, education level, and marital status. In terms of his health, Respondent indicated that he was currently taking medication for hypertension but that he felt fine and had not taken any medication, drugs, or alcohol within the twenty-four hours before the proceeding. Respondent acknowledged that he had previously been treated for “drugs and psychiatric.” He did not, however, elaborate on this treatment.
After the introductory questions of the plea colloquy, the judge informed Respondent of the offenses for which he was charged[1]and the maximum possible sentences for these offenses. Respondent indicated that he understood the charges and intended to plead guilty to each of the offenses. The judge then instructed Respondent that by pleading guilty he would waive the following constitutional rights: the right to a jury trial, the State’s burden of proof, his right to cross-examine the State’s witnesses, his right to present a defense, and his right against self-incrimination. Respondent stated that he understood these rights but had made the decision to plead guilty.
After admitting his guilt, Respondent indicated that he was satisfied with his counsel’s representation and had been given ample time to review the State’s evidence.
The solicitor then provided the following factual basis for Respondent’s guilty plea, stating:
On July 4th of 2004, [Respondent] put hair grease on his penis and on the victim’s vagina and attempted to have sexual intercourse with her. When he was unable to do so he then penetrated her vagina with his finger and her anus with his penis. This victim was the [Respondent’s] nine year old step-daughter.
In May and June, 2004 [Respondent] also committed numerous lewd acts on his other two step-daughters, eleven and twelve years old by kissing them on the mouth, rubbing their breasts, vaginal areas, and buttocks, and rubbing his body against theirs. All these incidents occurred while the family resided at 1 Woodmont Lane in Greenville County.
The [Respondent’s] wife, the mother of all three victims confronted the [Respondent] when the nine-year-old victim disclosed her abuse. And the [Respondent] stated that he did not know why he did it. The [Respondent] admitted guilt in the DSS family court proceedings.
Following the solicitor’s recitation of the facts, the judge asked Respondent whether the solicitor’s statements were true. Respondent stated that they were true. Respondent’s counsel then informed the judge that Respondent had admitted his guilt, but had told him “only a crazy person would do something like that.” Counsel clarified that Respondent was not insane but recognized the “terrible act.”
Subsequently, the judge sentenced Respondent to twenty years imprisonment for CSC with a minor, first degree and fifteen years for each count of lewd act upon a child. The sentences were to be served concurrently.
Respondent did not file a direct appeal of his guilty plea. Eight months after the plea, Respondent filed an application for PCR. In his application, Respondent requested relief on the following grounds: prosecutorial misconduct, ineffective assistance of counsel, and the plea court’s lack of subject matter jurisdiction. In an amended application filed by his PCR counsel, Respondent asserted the following additional grounds for relief: his plea was not knowingly, voluntarily, and intelligently made; his plea counsel did not make him aware of the “nature and crucial elements of the charge against him”; at the time of the plea he was under the influence of prescribed mental health medications that affected his ability to comprehend what he was doing; and his plea counsel failed to inform him of the right to appeal his guilty plea.
On March 1, 2007, the circuit court held a hearing on Respondent’s PCR application. At the start of the proceeding, Respondent’s counsel outlined Respondent’s bases for his request for PCR. Counsel primarily focused her argument on Respondent’s allegations of ineffective assistance of counsel.
Specifically, PCR counsel alleged that plea counsel was ineffective in the following respects: (1) he failed to bring to the court’s attention Respondent’s mental health issues, particularly the fact that Respondent was housed in the mental health section of the Greenville County detention center for nine months prior to the plea proceeding and was taking “antipsychotic” medication; (2) he failed to evaluate the State’s evidence in that he did not make a discovery request and he did not view the physical evidence or the “rape kit”; and (3) he failed to offer any mitigation evidence, such as the lack of physical evidence, the absence of the victims at the plea proceeding, the Respondent’s lack of a prior record, and the Respondent’s twelve-year military history. Additionally, PCR counsel emphasized that Respondent’s plea counsel failed to review the meaning of “sexual battery” with Respondent prior to the plea. Counsel asserted that the failure to review a crucial element of the offense was particularly significant given Respondent’s competency was in question.
PCR counsel then called Respondent as a witness. Respondent testified that he met with plea counsel only once, the day of the plea proceeding, for a ten-minute consultation. He further stated that plea counsel never provided or reviewed discovery with him. Because he did not review any discovery materials, Respondent claimed he was unaware of the SLED report stating that no physical evidence was found on the clothing of the nine-year-old victim. Although Respondent acknowledged that he pled guilty, he claimed that he did not understand the nature of the charges, particularly the meaning of “sexual battery.” Respondent stated that his plea counsel did not explain the meaning of this term. He further testified that had he known the definition of “sexual battery,” he would not have pled guilty.
Throughout his direct examination, Respondent repeatedly emphasized that he was unable to adequately comprehend the plea proceeding due to his mental health issues and the medications he was taking to treat these issues. Respondent contended that he admitted to the truth of the solicitor’s factual recitation at the plea proceeding because he lacked the ability to comprehend and adequately defend himself at that time.
Although Respondent specifically denied committing a sexual battery on the nine-year-old victim, he admitted there was inappropriate touching. Despite the State’s assertion that Respondent admitted to committing a sexual battery during the family court proceeding, Respondent testified he could not recall such an admission. Respondent acknowledged that the family court’s order included a treatment plan stemming from a finding of sexual abuse. Respondent, however, noted that there was no finding of sexual battery or CSC with a minor.
On cross-examination, Respondent maintained that he did not inform the plea judge of the extent of his mental health problems because the “psychiatric medication . . . rendered [him] incompetent to speak for [himself].” Although Respondent acknowledged that he was aware of the plea proceeding, he contended he did not want to plead guilty and only did so due to his diminished “mental capabilities.”
Respondent’s plea counsel was the second and final witness to testify. Counsel testified that he could not recall how many times he met with Respondent prior to the plea proceeding. He did remember that “he went over the materials [he] had in his possession.” Plea counsel explained that he did not file a discovery motion because the solicitor had an open file policy and he copied the solicitor’s file. Counsel, however, was not aware of the SLED report which indicated that there was no physical evidence found regarding the CSC with a minor offense. Counsel testified he was aware that Respondent had gone to a family court hearing, but he did not appear with Respondent because he did not know about the hearing at the time it was conducted. Plea counsel further stated that prior to the plea proceeding he went over the allegations with Respondent who told him that “something happened.” Plea counsel testified Respondent was evasive and remorseful but never said he was not guilty. Based on this discussion, plea counsel was “satisfied that it happened” but Respondent did not want to say he did it. When questioned whether Respondent appeared confused about the plea proceeding, plea counsel explained:
The only thing that I would say that he—he wanted to admit without admitting that he did this act. You know. He danced around it but I’m going to plead guilty. You, know I’m going to plead guilty. But, you know, when you get into specifics as to what he did, he would kind of be evasive but something happened. And that’s what he told me. I said, “Well you’re going to plead guilty to it?” And he said, Yes.
On cross-examination, plea counsel testified that at the time he was appointed he was not aware that Respondent was being housed in the mental health section of the Greenville County detention center. He further stated that his file did not reflect that he had met with Respondent prior to the day of the plea hearing. In terms of the contents of his file, plea counsel testified that he had the “discovery package” provided by the solicitor’s office. Counsel, however, acknowledged that this package did not include the SLED examination and he did not go to the law enforcement center to review the evidence. According to plea counsel, the package included the family court order in which there was a finding of sexual abuse. When asked why he did not object to the solicitor’s statement that Respondent admitted his guilt in the family court proceeding, plea counsel stated, “To me it’s all the same . . . sexual conduct. Misconduct. I didn’t make that distinction.” When specifically questioned as to whether sexual abuse is the same as sexual battery, plea counsel responded “It’s all the same.”
With respect to his pre-plea discussions with Respondent, plea counsel stated that he told Respondent what the allegations against him were and that Respondent understood the charges. Plea counsel admitted that he did not discuss the SLED report, the rape kit, or the victim’s statement. Instead, counsel “talked about [Respondent] appearing in court to plead guilty and that he was guilty.” Counsel believed he had enough time to go over the discovery, the plea judge’s questions, and whether or not Respondent wanted to plead guilty. Counsel maintained that Respondent wanted to plead guilty.
By order dated March 26, 2007, the PCR judge granted Respondent’s application and, in turn, reversed and remanded his convictions for CSC with a minor, first degree and two counts of lewd act upon a child. In so holding, the PCR judge found plea counsel was ineffective for failing to advise Respondent regarding the meaning of “sexual battery.”[2] The judge noted that plea counsel “admitted that he did not review the meaning of sexual battery with the [Respondent] saying that lewd act and criminal sexual conduct with a minor are basically the same thing, messing with children.” Based on plea counsel’s testimony, the judge found counsel “demonstrated a lack of knowledge of the nature of the crimes for which he represented the [Respondent].” In light of this testimony and Respondent’s testimony, the judge concluded that plea counsel did not advise Respondent of “the meaning of sexual battery and the significance of penetration as it relates to criminal sexual conduct with a minor in the first degree.” The judge further found that plea counsel’s error was not cured by the plea colloquy. Ultimately, the judge held that plea counsel’s performance fell below reasonable and prevailing professional norms given counsel did not advise Respondent of the elements of CSC with a minor and did not ensure that Respondent understood the nature of the offense. Finally, the judge found that Respondent proved he was prejudiced by plea counsel’s deficient performance given Respondent demonstrated that he would have insisted on going to trial had he known the definition of “sexual battery.”
The PCR judge denied the State’s motion to alter or amend the order. Subsequently, this Court granted the State’s petition for a writ of certiorari to review the PCR judge’s order.
DISCUSSION
The State argues the PCR judge erred in finding Respondent would not have pled guilty if plea counsel had explained the definition of a “sexual battery.” Because plea counsel reviewed the pending charges and the discovery material with Respondent prior to the plea proceeding, the State contends counsel’s failure to use the term “sexual battery” did not render counsel’s performance deficient. Even if counsel’s performance was deficient, the State claims that Respondent did not prove prejudice given he had admitted his misconduct and any error was cured by the plea colloquy. Ultimately, the State seeks a reversal of the PCR judge’s decision to grant Respondent a new trial on all of his convictions.
A defendant has the right to the effective assistance of counsel under the Sixth Amendment to the United States Constitution. Strickland v. Washington, 466 U.S. 668 (1984). “There is a strong presumption that counsel rendered adequate assistance and exercised reasonable professional judgment in making all significant decisions in the case.” Ard v. Catoe, 372 S.C. 318, 331, 642 S.E.2d 590, 596 (2007), cert. denied, 128 S. Ct. 370 (2007).
In a PCR proceeding, the applicant bears the burden of establishing that he or she is entitled to relief. Caprood v. State, 338 S.C. 103, 109, 525 S.E.2d 514, 517 (2000). “In the context of a guilty plea, the court must determine whether 1) counsel’s advice was within the range of competence demanded of attorneys in criminal cases- i.e. was counsel’s performance deficient, and 2) if there is a reasonable probability that, but for counsel’s errors, the defendant would not have pled guilty.” Smith v. State, 369 S.C. 135, 138, 631 S.E.2d 260, 261 (2006) (citing Hill v. Lockhart, 474 U.S. 52, 56-58 (1985)).
“When considering an allegation on PCR that a guilty plea was based on inaccurate advice of counsel, the transcript of the guilty plea hearing will be considered to determine whether information conveyed by the plea judge cured any possible error made by counsel.” Burnett v. State, 352 S.C. 589, 592, 576 S.E.2d 144, 145 (2003). “Specifically, the voluntariness of a guilty plea is not determined by an examination of a specific inquiry made by the sentencing judge alone, but is determined from both the record made at the time of the entry of the guilty plea, and also from the record of the PCR hearing.” Roddy v. State, 339 S.C. 29, 31, 528 S.E.2d 418, 420 (2000).
“This Court gives great deference to the post-conviction relief (PCR) court’s findings of fact and conclusions of law.” Dempsey v. State, 363 S.C. 365, 368, 610 S.E.2d 812, 814 (2005). In reviewing the PCR court’s decision, an appellate court is concerned only with whether any evidence of probative value exists to support that decision. Smith, 369 S.C. at 138, 631 S.E.2d at 261. This Court will uphold the findings of the PCR court when there is any evidence of probative value to support them, and will reverse the decision of the PCR court when it is controlled by an error of law. Suber v. State, 371 S.C. 554, 558-59, 640 S.E.2d 884, 886 (2007).
Section 16-3-655 of the South Carolina Code outlines the crime of first-degree criminal sexual conduct with a minor as follows: “A person is guilty of criminal sexual conduct in the first degree if the actor engages in sexual battery with the victim who is less than eleven years of age.” S.C. Code Ann. § 16-3-655(1) (2003).[3]
“Sexual battery” means “sexual intercourse, cunnilingus, fellatio, anal intercourse, or any intrusion, however slight, of any part of a person’s body or of any object into the genital or anal openings of another person’s body, except when such intrusion is accomplished for medically recognized treatment or diagnostic purposes.” S.C. Code Ann. § 16-3-651(h) (2003).
In contrast to “sexual battery,” “sexual abuse” has been defined as “(a) actual or attempted sexual contact with a child; or (b) permitting, enticing, encouraging, forcing, or otherwise facilitating a child’s participation in prostitution or in a live performance or photographic representation of sexual activity or sexually explicit nudity; by any person including, but not limited to, a person responsible for the child’s welfare, as defined in Section 20-7-490(5).” S.C. Code Ann. § 17-25-135(B)(2) (2003 & Supp. 2008).
The term “sexual abuse” has been used to generally describe conduct which precipitates a charge of CSC with a minor. See, e.g.,State v. Ladner, 373 S.C. 103, 644 S.E.2d 684 (2007) (affirming conviction for first-degree CSC with a minor and discussing victim’s statement and medical evidence indicating victim’s injuries were consistent with sexual abuse). This general use, however, has never equated “sexual abuse” with “sexual battery.”
Clearly, a severe incident of child sexual abuse may constitute a “sexual battery” and, in turn, CSC with a minor. However, one who sexually abuses a child is not necessarily guilty of CSC with a minor. For example, an inappropriate touching of a child without penetration of the child’s “genital or anal openings” would constitute sexual abuse, but would not necessarily rise to the level of a “sexual battery” and a charge of CSC with a minor. Instead, such sexual abuse would warrant a charge of lewd act upon a child. See S.C. Code Ann. § 16-15-140 (2003) (“It is unlawful for a person over the age of fourteen years to wilfully and lewdly commit or attempt a lewd or lascivious act upon or with the body, or its parts, of a child under the age of sixteen years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of the person or of the child.”). Thus, the terms “sexual abuse” and “sexual battery” are not synonymous.
In the instant case, plea counsel testified at the PCR hearing that he believed the terms were the same. Because plea counsel did not differentiate between the two terms or correctly explain them to Respondent, there is evidence to support the PCR judge’s decision that plea counsel’s performance was deficient. Given plea counsel did not comprehend this distinction and did not inform Respondent of a crucial element of the offense of CSC with a minor, first degree, we agree with the PCR judge that counsel’s representation fell below an objective standard of reasonableness.
We find, however, plea counsel’s deficient performance was cured by the plea colloquy even though there was no specific discussion of the term “sexual battery.” Notably, the PCR judge found that any allegations regarding Respondent’s competency were not meritorious. In light of this decision, the PCR judge implicitly found that Respondent had the requisite mental capacity to comprehend the plea proceeding.
At the plea proceeding, the judge read the indictments and Respondent acknowledged that he understood these charges. The indictment for CSC with a minor, first degree identified the elements of the offense which included a reference to a “sexual battery.” After Respondent affirmatively stated that he understood the charges and admitted his guilt, the solicitor gave a detailed factual basis for the charges. In his factual recitation, the solicitor identified conduct which would constitute the elements of first-degree CSC with a minor. Specifically, the solicitor conveyed that Respondent had penetrated the nine-year-old victim’s vagina with his finger and her anus with his penis. Both of these acts clearly meet the definition of a “sexual battery.” Respondent admitted that the solicitor’s statement of facts was true. Therefore, we find Respondent knowingly and voluntarily entered a plea as to the charge of CSC with a minor, first degree. See Roddy, 339 S.C. at 33-34, 528 S.E.2d at 421 (recognizing that for a guilty plea to be 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 (citing Boykin v. Alabama, 395 U.S. 238 (1969)).
In view of our decision, we further conclude the PCR judge erred in granting Respondent a new trial for the two counts of lewd act upon a child. As previously stated, the PCR judge’s primary reason for granting Respondent’s petition for relief was plea counsel’s failure to correctly inform Respondent of “sexual battery,” an element of CSC with a minor, first degree. Given a “sexual battery” is not an element of lewd act upon a child and Respondent admitted to inappropriately touching his stepdaughters, the two charges for lewd act upon a child should not have been affected by plea counsel’s deficient performance with regard to the definition of a “sexual battery.” Accordingly, we find there is no evidence to support the PCR judge’s decision to grant Respondent’s relief on these two convictions.
CONCLUSION
In terms of Respondent’s conviction for CSC with a minor, first degree, we find any deficient performance by plea counsel was cured by the plea colloquy. As to the remaining two charges, we hold there is no evidence to support the PCR judge’s reversal of the two counts of lewd act upon a child given any deficient performance by plea counsel regarding his failure to inform Respondent of the term “sexual battery” would not have affected Respondent’s plea of guilty to the charges of lewd act upon a child. Accordingly, the decision of the PCR judge is
REVERSED.
TOAL, C.J., WALLER, PLEICONES and KITTREDGE, JJ., concur.
[1] The judge read excerpts from the indictments. In terms of the charge of CSC with a minor, first degree the judge informed Respondent that the indictment “alleges you did in Greenville County July 4, ’04 engage in sexual battery with child-victim #3, less than eleven years of age.”
As to one of the charges of lewd act upon a child, the judge stated that the indictment “alleges you did in Greenville County on or about – – between June 1st and June 25th, ’04 being over the age of fourteen willfully and lewdly committed a lewd and lascivious act upon the body or its parts of child-victim #2, a child under the age of sixteen with the intent of arousing, appealing to, gratifying the lusts, passions, or sexual desires of yourself or the child.” The judge reiterated this language as to the second count of lewd act upon a child with the exception that the date of the offense was May 31, 2004, and involved child-victim #1.
[2] The PCR judge found Respondent’s remaining allegations of ineffective assistance of counsel, prosecutorial misconduct, and lack of subject matter jurisdiction to be without merit.
[3] Because the alleged sexual misconduct occurred in July 2004, we cite to this version of the statute given there have been substantive changes made to section 16-3-655 in subsequent years.
Mar 19, 2012 | Burglary/Robbery/Larceny, Criminal Defense, Uncategorized
At Reeves, Aiken & Hightower LLP, our attorneys have over 70 years of combined trial experience in both civil and criminal courts. We are available by mobile phone in the evenings, on weekends, and even holidays. Our lawyers are licensed in both South Carolina and North Carolina and are effective criminal trial attorneys. We are not afraid to go to Court and often do. Tyler Burns is a former 16th Circuit (York County) prosecutor and Art Aiken is a accomplished criminal attorney who has tried virtually every type of criminal case in both state and federal courts. And, Bea Hightower is a former Richland County public defender in Columbia. We welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials and experience to any other law firm. Then call us at 877-374-5999 for a private consultation. Or visit our firm’s website at www.rjrlaw.com.
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Ervin McMillian, Petitioner,
v.
State of South Carolina, Respondent.
ON WRIT OF CERTIORARI
Appeal From Richland County
James R. Barber, Post-Conviction Relief Judge
Opinion No. 26688
Submitted April 22, 2009 – Filed July 20, 2009
AFFIRMED
Appellate Defender Robert M. Pachak, of South Carolina Office of Indigent Defense, of Columbia, for Petitioner.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley E. Elliott, and Assistant Attorney General Brian T. Petrano, all of Columbia, for Respondent.
JUSTICE BEATTY: Ervin McMillian[1] filed a petition for a writ of certiorari seeking review of an order denying his application for post-conviction relief (PCR). We granted the petition to decide the following question: Was counsel ineffective for advising McMillian that the intent to commit a crime could be inferred from the act of trespassing, such that it would provide a factual basis to support a plea to first-degree burglary? We hold counsel was not ineffective and affirm.
FACTS
McMillian was charged with first-degree burglary as a result of an incident that occurred in Columbia, South Carolina on April 10, 2004. At approximately 1:00 a.m. on that date, McMillian knocked on the door of the home of Lanelle Hicks and her adult son, Mark Hicks. Lanelle Hicks looked out a window and saw McMillian, so she went to her son’s room to wake him. At that point, McMillian’s knocking turned into beating on the door, and then he crashed the door open, damaging the door. As soon as McMillian entered the house, however, Mark Hicks took McMillian back outside and held him there with the assistance of a neighbor until the police arrived.
McMillian subsequently pled guilty to the charge of first-degree burglary. At the plea proceeding, McMillian stated that he “had been drinking and drugging” (with crack cocaine) the night of the incident and that he thought someone was chasing him and trying to kill him. McMillian maintained he knocked on the door of the Hicks home in order to get some help, but he admitted that he pushed the door open to get inside the home. McMillian stated he believed he “was justified in asking for help,” but admitted that he “know[s] that [he] did wrong.”
In contrast, the solicitor advised the plea judge that according to the victims they never heard McMillian ask for help and “he never asked for the police. All he did was kick their door in and rip the door jam off.” Earlier in the plea proceeding, the solicitor noted that McMillian has a criminal record dating back to 1977 that includes prior convictions for, among other things, housebreaking, malicious injury to real property, second-degree burglary, and strong armed robbery.
In a separate sentencing proceeding, McMillian again admitted he “pushed the door open,” but maintained he did not “go there with the intent to take anything.” The plea judge sentenced McMillian to nineteen years in prison for first-degree burglary. No direct appeal was taken.
McMillian filed a PCR application. At the PCR hearing, McMillian asserted, among his claims, that his attorney did not explain to him that the State must prove not only that he had broken into the victims’ home, but that he did so with the intent to commit a crime. He maintained he would have exercised his right to go to trial and would not have pled guilty if his attorney had properly advised him that there was no evidence to support an inference of his intent to commit a crime.
McMillian’s counsel testified that she believed there was evidence of intent to commit a crime and that she had advised McMillian of all the elements of first-degree burglary. Counsel stated, “I explained that to Mr. McMillian, that the intent could be inferred from the trespassing because it was not his property, and he was illegally on someone else’s property, and he broke the door down of — pushed the door open. I said that it could be inferred from — trespass could be with the intent to commit a crime. Trespass could be inferred from these actions.”
Counsel stated she hired a private investigator to look into McMillian’s story that he had been chased by someone and, “[a]fter a period of time . . . he [McMillian] said the person kind of existed in his head, I guess.” She said a neighbor saw McMillian “looking in the windows of the home prior to him just bursting in the door.” Thus, she could not substantiate McMillian’s claim that he believed someone was chasing him.
McMillian’s PCR attorney contended McMillian’s assertion that he was high on drugs and thought he was being chased when he went to the home did not support a charge of first-degree burglary, as he had no intent to commit a crime, and plea counsel erred in advising him that intent to commit a crime could be inferred from an act of trespass.
The PCR judge denied McMillian’s application and found the allegation that there was no factual basis to support a plea to first-degree burglary was without merit. The judge noted: “Counsel testified that had she gone to trial, intent to commit a crime could be inferred from the act of trespassing. Applicant testified that he did not own the house and did not have permission to enter the house. Further, the evidence suggested that he physically broke the door open to enter. Accordingly, this allegation is denied and dismissed.”
McMillian’s attorney submitted a Johnson[2] petition for a writ of certiorari to review the PCR order. This Court directed the parties to brief the following issue: Was counsel ineffective in advising McMillian that the intent to commit a crime could be inferred from the act of trespassing, such that it would provide a factual basis to support a plea to first-degree burglary?
LAW/ANALYSIS
The Sixth Amendment to the United States Constitution guarantees a defendant the right to effective assistance of counsel. U.S. Const. amend. VI; Strickland v. Washington, 466 U.S. 668 (1984); Lomax v. State, 379 S.C. 93, 665 S.E.2d 164 (2008).
The United States Supreme Court has announced a two-pronged test to establish ineffective assistance of counsel by which a PCR applicant must show (1) counsel’s performance was deficient, and (2) the deficient performance prejudiced the defendant. Strickland, 466 U.S. at 687; Cherry v. State, 300 S.C. 115, 386 S.E.2d 624 (1989). Under the second prong, the PCR applicant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694.
The two-part test adopted in Strickland also “applies to challenges to guilty pleas based on ineffective assistance of counsel.” Hill v. Lockhart, 474 U.S. 52, 58 (1985). In the context of a guilty plea, the applicant “must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Id. at 59. “The longstanding test for determining the validity of a guilty plea is ‘whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.’” Id. at 56 (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)).
“In a PCR proceeding, the burden is on the applicant to prove the allegations in his application.” Lounds v. State, 380 S.C. 454, 460, 670 S.E.2d 646, 649 (2008). “In resolving PCR issues relating to guilty pleas, it is proper to consider the guilty plea transcript as well as the evidence at the PCR hearing.” Pelzer v. State, 381 S.C. 217, 222, 672 S.E.2d 790, 792 (Ct. App. 2009).
“This Court will uphold the findings of the PCR judge when there is any evidence of probative value to support them.” Suber v. State, 371 S.C. 554, 558, 640 S.E.2d 884, 886 (2007). “This Court will reverse the PCR judge’s decision when it is controlled by an error of law.” Id. at 558-59, 640 S.E.2d at 886.
First-degree burglary is a statutory offense in South Carolina that is defined as follows: “A person is guilty of burglary in the first degree if the person enters a dwelling without consent and with intent to commit a crime in the dwelling, and” any one of several enumerated aggravating circumstances exists. S.C. Code Ann. § 16-11-311(A) (2003) (emphasis added). In this case, the aggravating circumstance is “the entering or remaining occurs in the nighttime.” Id. § 16-11-311(A)(3).
On review, McMillian asserts he received ineffective assistance of counsel because “[t]here is ambiguous precedent on whether one can infer intent [to commit a crime] from trespassing.”
This Court has previously held that for a charge under the old statute of housebreaking, i.e., breaking and entering into a dwelling with the intent to commit a felony or a crime of a lesser grade, found in section 1139 of the South Carolina Code of 1932, the element of intent to commit a crime of a lesser grade could be satisfied by a trespass. See State v. Christensen, 194 S.C. 131, 9 S.E.2d 555 (1940). In Christensen, “the defendant was convicted of breaking and entering with the intent to commit a misdemeanor, to wit, a trespass” after the defendant, who was an agent of the landlord, went into a tenant’s dwelling with the specific intent of taking personal property to sell for overdue rent. Id. at 138, 9 S.E.2d at 558.
The Christensen Court cited a prior decision that stated the mere breaking and entering of a house is not a crime under the statute prohibiting the breaking and entering into a dwelling with the intent to commit a felony or a crime of a lesser grade,[3] but found that if Christensen were guilty of a trespass, “[i]t was for the jury to say whether such breaking and entry under the circumstances constituted a crime under Section 1139 and the finding of the jury on this issue will not be disturbed by this Court.” Id. at 137-39, 9 S.E.2d at 558-59.
McMillian argues counsel was ineffective in advising him that intent to commit a crime could be inferred from a trespass. We disagree. In its general sense, to “trespass” is “to make an unwarranted or uninvited incursion” onto the property of another. Webster’s Third New International Dictionary 2439 (2002).[4]
Certainly, a jury would have been free to disbelieve McMillian’s version of events and find that he had the intent to commit a crime based on his conduct at the time of this offense. In State v. Haney, 257 S.C. 89, 91, 184 S.E.2d 344, 345 (1971), this Court observed that “proof of intent necessarily rests on inference from conduct.” We noted the unexplained breaking and entry of a dwelling in the night is itself evidence of intent to commit larceny:
When the building entered is a dwelling house, the weight of authority holds that the unexplained breaking and entry in the night is itself evidence of intent to commit larceny rather than some other crime. ‘The fundamental theory, in the absence of other intent or explanation for breaking and entering, is that the usual object or purpose of burglarizing a dwelling house at night is theft.’ 13 Am.Jur.2d Burglary, Sec. 52 (1964). Id. at 91-92, 184 S.E.2d at 345. A similar view was expressed by the Supreme Court of Wyoming, which stated:
The law is well settled and widespread that where one breaks into the property of another in the nighttime, an inference may be drawn that he did so with the intent to commit larceny. A reasonable mind recognizes that people do not usually break into and enter the building of another under the shroud of darkness with innocent intent and that the most usual intent is to steal. . . . Direct evidence to prove intent is not necessary. . . . Proof of intent is not a precise process. Mirich v. State, 593 P.2d 590, 593 (Wyo. 1979).
Moreover, even if we interpret McMillian’s argument as being that counsel was ineffective because she referred to unlawful trespass and he did not meet the elements of an unlawful trespass because there was no entry after notice, we find there is no merit to this allegation. There was notice against entry in this case because, as we noted in Christensen, “the presence of closed doors and locked windows [i]s notice to the world that entry is forbidden.” Christensen, 194 S.C. at 141, 9 S.E.2d at 560.
McMillian was facing a possible sentence of life in prison[5] and, based on the colloquy in the transcript, it appears he had hoped for a suspended sentence of less than fifteen years. When that did not occur, he brought this PCR action. We hold that the fact that counsel advised McMillian that a jury could disbelieve his version of events and could find that he entered the dwelling without consent and with the intent to commit a crime was not erroneous advice and counsel was not deficient in her representation. Accordingly, the PCR judge did not err in denying McMillian’s PCR application.
CONCLUSION
Based on the foregoing, the order of the PCR judge is
AFFIRMED.
TOAL, C.J. and KITTREDGE, J., concur. PLEICONES, J., concurring in a separate opinion in which WALLER, J., concurs.
JUSTICE PLEICONES: I agree with the majority that counsel was not ineffective in advising petitioner that a jury could find the requisite intent to commit a crime for purposes of burglary from his trespass into the Hicks’ home. I write separately, however, as I do not join the discussion of statutory “trespass after notice” as I believe it is not implicated by these facts. See State v. Bradley, 126 S.C. 528, 120 S.E. 240 (1923); State v. Cross, 323 S.C. 41, 448 S.E.2d 569 (Ct. App. 1994) (common law trespass discussed).
WALLER, J., concurs.
[1] Ervin McMillian is also referred to as “Ervin Britton” in various documents in the Appendix.
[2] Johnson v. State, 294 S.C. 310, 364 S.E.2d 201 (1988).
[3] The Christensen Court cited State v. Clark, 85 S.C. 273, 67 S.E. 300 (1910), which provides in relevant part as follows:
The first count of the indictment is laid under section 145 of the Criminal Code, which is as follows: “Every person who shall break and enter, or who shall break with intent to enter, in the day time, any dwelling house or other house, or who shall break and enter, or shall break with intent to enter, in the night time, any house, the breaking and entering of which would not constitute burglary, with intent to commit a felony or other crime of a lesser grade, shall be held guilty of a felony,” etc. Under this statute, the mere breaking of a house is not a crime, nor is the mere breaking and entering of a house, or the mere breaking with intent to enter a house any crime. It is only when there is a breaking and entering, or a breaking with intent to enter, “with intent to commit a felony, or other crime of a lesser grade” that the crime denounced by the statute is complete. Id. at 277-78, 67 S.E. at 302 (emphasis in original).
[4] In contrast, an unlawful trespass, or what is commonly called trespass after notice, is distinguishable and is prohibited by section 16-11-620 of the South Carolina Code, which provides as follows:
Any person who, without legal cause or good excuse, enters into the dwelling house, place of business, or on the premises of another person after having been warned not to do so or any person who, having entered into the dwelling house, place of business, or on the premises of another person without having been warned fails and refuses, without good cause or good excuse, to leave immediately upon being ordered or requested to do so by the person in possession or his agent or representative shall, on conviction, be fined not more than two hundred dollars or be imprisoned for not more than thirty days. S.C. Code Ann. § 16-11-620 (2003).
[5] First-degree burglary is a felony punishable by life imprisonment, although the court, in its discretion, may sentence a defendant to a term of not less than fifteen years. S.C. Code Ann. § 16-11-311(B) (2003).
Mar 19, 2012 | Assault and Battery, Criminal Defense, Uncategorized
At Reeves, Aiken & Hightower LLP, our attorneys have over 70 years of combined trial experience in both civil and criminal courts. We are available by mobile phone in the evenings, on weekends, and even holidays. Our lawyers are licensed in both South Carolina and North Carolina and are effective criminal trial attorneys. We are not afraid to go to Court and often do. Tyler Burns is a former 16th Circuit (York County) prosecutor and Art Aiken is a accomplished criminal attorney who has tried virtually every type of criminal case in both state and federal courts. And, Bea Hightower is a former Richland County public defender in Columbia. We welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials and experience to any other law firm. Then call us at 877-374-5999 for a private consultation. Or visit our firm’s website at www.rjrlaw.com.
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Jack R. Bennett, Respondent,
v.
State of South Carolina, Petitioner.
ON WRIT OF CERTIORARI
Appeal from Greenville County
Larry R. Patterson, Circuit Court Judge
Opinion No. 26658
Submitted March 18, 2009 – Re-filed July 13, 2009
REVERSED
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General Karen Ratigan, all of Columbia, for Petitioner.
Division of Appellate Defense, of Columbia, and Susannah Conyers Ross, of Ross & Enderlin, of Greenville, for Respondent.
CHIEF JUSTICE TOAL: In this case, we granted a writ of certiorari to review the post-conviction relief (PCR) court’s grant of Respondent Jack Randall Bennett’s request for relief. The State argues that the PCR court erred in ruling that Respondent received ineffective assistance of trial counsel and appellate counsel. We find that Respondent’s trial counsel and appellate counsel were not ineffective and reverse the PCR court’s grant of relief.
FACTS/PROCEDURAL HISTORY
On the evening of October 13, 1998, Respondent was at the home of Robert Garland (the Victim) in Marietta, South Carolina. Also present were Lisa Ward (Ms. Ward) and Respondent’s wife, Elizabeth Bennett (Ms. Bennett). Respondent and the Victim drank large quantities of beer and moonshine throughout the evening. Additionally, Respondent admits to ingesting multiple Valium pills. During the course of the evening, Respondent became violent with Ms. Bennett. The Victim and Ms. Ward ejected Respondent from the home. Breaking through the front door, Respondent re-entered the Victim’s home and beat him severely.
In January 2001, Respondent was tried for assault and battery with intent to kill (ABWIK), possession of a weapon during the commission of a violent crime, and first-degree burglary. Ms. Bennett was not present for the trial but the trial court admitted her out-of-court statements.
Ms. Ward testified that while Respondent was assaulting the Victim, Ms. Bennett hysterically screamed, “He’s going to kill me.” Trial counsel objected to the admission of the statement on hearsay grounds. The trial judge ruled that Ms. Bennett’s statement was an excited utterance, and thus admissible as an exception to the rule excluding hearsay testimony. Ms. Ward continued her testimony stating that as the two women were exiting the home, Ms. Bennett screamed, “[p]lease hurry, please hurry, because if he gets hold of me, he’s going to kill me.” Trial counsel did not renew his objection.
Next, the State presented Officer Keith Morecraft to read into evidence a statement he took from Ms. Bennett at the crime scene ninety (90) minutes to two hours after the crime had occurred. Trial counsel objected on both hearsay and Confrontation Clause grounds. The trial court overruled the objection and allowed Officer Morecraft to read the statement into evidence.
The jury found Respondent guilty and sentenced him to concurrent terms of eighteen (18) years for ABWIK, five (5) years for possession of a weapon during the commission of a violent crime, and eighteen (18) years for first-degree burglary. Appellate counsel filed an appeal pursuant to Anders,[1] which the court of appeals dismissed. State v. Bennett, Op. No. 2002-UP-452 (S.C. Ct. App. filed June 20, 2002). Respondent filed an application for PCR. After a hearing, the PCR court granted Respondent’s request for relief. The PCR court found that trial counsel provided Respondent with ineffective assistance in failing to adequately object to the admission of Ms. Bennett’s out-of-court statements. The PCR court also found that appellate counsel provided Respondent with ineffective assistance in failing to brief issues concerning the admission of Ms. Bennett’s out-of-court statements.[2]
STANDARD OF REVIEW
In post-conviction relief proceedings, the burden of proof is on the applicant to prove the allegations in his application. Butler v. State, 286 S.C. 441, 442, 334 S.E.2d 813, 814 (1985). If the PCR court’s finding is supported by any evidence of probative value in the record, it should be upheld. Cherry v. State, 300 S.C. 115, 119, 386 S.E.2d 624, 626 (1989).
LAW/ANALYSIS
The State argues the PCR court erred in granting relief on the grounds that trial counsel and appellate counsel provided ineffective assistance to Respondent. We agree.
For an applicant to be granted post-conviction relief as a result of ineffective assistance of counsel, the applicant must show that 1) counsel’s performance was deficient,[3] and 2) he was prejudiced by counsel’s deficient performance.[4] See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984); Porter v. State, 368 S.C. 378, 383, 629 S.E.2d 353, 356 (2006).
I. Trial Counsel
The State argues that the PCR court erred in finding trial counsel ineffective. We agree.
We find that trial counsel’s performance was not deficient and, therefore, his assistance was not ineffective. Trial counsel clearly objected on hearsay grounds to the admission of Ms. Ward’s testimony concerning Ms. Bennett’s out-of-court statement. The trial court correctly ruled that the statements were admissible as excited utterances and overruled trial counsel’s objection.[5] Trial counsel’s decision not to renew his objection to Ms. Ward’s continuing testimony as to Ms. Bennett’s out-of-court statements did not constitute deficient assistance. The second statement offered by Ms. Ward was essentially identical to the first; therefore, because the trial court had already ruled on the issue, it was not necessary for trial counsel to renew his objection. See State v. McDaniel, 320 S.C. 33, 37, 462 S.E.2d 882, 884 (Ct. App. 1995) (“so long as the judge had an opportunity to rule on an issue, and did so, it was not incumbent upon defense counsel to harass the judge by parading the issue before him again.”).
Additionally, trial counsel clearly objected to the admission of Ms. Bennett’s out-of-court statement given to Officer Morecraft. Trial counsel made this objection on multiple relevant grounds and argued it forcefully. Because trial counsel unmistakably represented the interests of his client on this issue, his performance was not deficient.
We find that there is no evidence of probative value in the record to support the PCR court’s finding that trial counsel’s performance was deficient. Therefore, with respect to the PCR court’s grant of Respondent’s requested relief on the grounds of ineffective assistance of trial counsel, we reverse.
II. Appellate Counsel
The State argues that the PCR court erred in finding appellate counsel ineffective. We agree.
A criminal defendant is constitutionally entitled to the effective assistance of appellate counsel. Evitts v. Lucey, 469 U.S. 387, 398 (1985). However, counsel is not required to raise every non-frivolous claim, but may select among them in order to maximize the likelihood of a favorable outcome. Smith v. Robbins, 528 U.S. 259, 288 (2000).
Generally, in analyzing a claim of ineffective assistance of appellate counsel, this Court applies the Strickland test just as it would when analyzing a claim of ineffective assistance of trial counsel.[6] See Southerland v. State, 337 S.C. 610, 616, 524 S.E.2d 833, 836 (1999). Thus, in this case, we ask 1) whether appellate counsel’s performance was deficient, and 2) whether Respondent was prejudiced by appellate counsel’s deficient performance.
Even if appellate counsel’s performance was deficient, we find that such performance did not prejudice Respondent. In order to show that he was prejudiced by appellate counsel’s performance, a PCR applicant must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Cherry, 300 S.C. at 117-18, 386 S.E.2d at 625. Ms. Bennett’s out-of-court statements admitted at trial were cumulative evidence and not necessary to prove Respondent’s guilt. Appellate counsel’s performance did not prejudice Respondent and was, therefore, not ineffective.
Accordingly, we find that the PCR court erred in finding that Respondent received ineffective assistance of appellate counsel.
CONCLUSION
For the foregoing reasons, we hold that the PCR court erred in ruling that trial counsel and appellate counsel were ineffective, and we reverse the PCR court’s order granting relief.
WALLER, PLEICONES, BEATTY and KITTREDGE, JJ., concur.
[1] Pursuant to Anders v. California, “if [appellate] counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw.” 386 U.S. 738, 744 (1967).
[2] The issue appellate counsel briefed in the Anders appeal was unrelated to the admission of Ms. Bennett’s out-of-court statements.
[3] In order to prove that counsel’s performance was deficient, an applicant must show that his counsel failed to render reasonably effective assistance under prevailing professional norms. Cherry v. State, 300 S.C. at 117-18, 386 S.E.2d at 625.
[4] In order to prove that he was prejudiced by his counsel’s deficiency, an applicant must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Cherry v. State, 300 S.C. 115, 117-18, 386 S.E.2d 624, 625 (1989). “A reasonable probability is a probability sufficient to undermine confidence in the outcome of trial.” Johnson v. State, 325 S.C. 182, 186, 480 S.E.2d 733, 735 (1997).
[5] Additionally, Respondent’s own defense that he was entering the home to protect Ms. Bennett opened the door to these statements.
[6] Appellate counsel filed an Anders brief, as opposed to a brief on the merits. Even in this context, when analyzing a claim of ineffective assistance of appellate counsel, we apply the Strickland test. See Smith v. Robbins, 528 U.S. 259, 284 (2000) (finding that even where appellate counsel believes his client’s appeal is without merit and thus files an Anders brief, the appellant may have been entitled to a merits brief and the challenge of appellate counsel’s performance should be reviewed under Stickland.)
