Apr 15, 2012 | Criminal Defense, Uncategorized
Below is another great article posted by Jeff Welty. Lawyers should avoid the lure of press coverage and remember their oaths to the legal profession. If they seek the “limelight,” they may run afoul of Bar ethics rules. As importantly, they may even cause harm to their client’s ability to get a fair trial.
The attorneys at Reeves, Aiken & Hightower, LLP, are trial lawyers who take high profile cases. However, we know the pitfalls of giving statements to the press and avoid the issue by simply responding with ” no comment.” Our best “press coverage” is our clients themselves if we successfully resolve their case. While we cannot guarantee any particular outcome, we can assure our clients that we will work tirelessly on their behalf and give them full information and options in order for them to make the best decisions on how to proceed. Carefully compare our lawyers’ credentials and experience to any other law firm. Then call us at 877-374-5999 for a private consultation and review of your case. For more information, please visit our firm website at www.rjrlaw.com.
Silence Is Golden: the Withdrawal of Zimmerman’s Attorneys
April 12th, 2012
By Jeff Welty
Although the big news today in the George Zimmerman/Trayvon Martin case is that Zimmerman has been charged with second-degree murder, I want to focus on something that happened earlier in the week: attorneys Craig Sonner and Hal Uhrig held a news conference to announce that they had lost contact with Zimmerman and no longer represented him.
As far as I can tell from media reports and from watching most of the full video, Sonner said that “[a]s of the last couple days [Zimmerman] has not returned phone calls, text messages or emails. He’s gone on his own. I’m not sure what he’s doing or who he’s talking to. I cannot go forward speaking to the public about George Zimmerman and this case as representing him because I’ve lost contact with him.” Apparently they had last spoken to Zimmerman on Sunday, and they announced their withdrawal on Tuesday. In the interim, they said, Zimmerman had called the prosecutor’s office asking to speak to her, had called Sean Hannity and spoken to him, and had set up a website allowing supporters to make donations towards his expenses. Uhrig said that Zimmerman was “in our opinion . . . not doing well emotionally,” was “emotionally crippled,” was “probably suffering from post-traumatic stress syndrome” and “may not be in complete control of what’s going on.” Sommers described him as being in “hiding,” and Uhrig suggested that he was not in Florida, though he remained in the United States. They did say that they continued to believe in Zimmerman’s innocence.
A number of commentators have suggested that the lawyers’ statements at the press conference violated the rules of legal ethics. One even said that “[t]he clip [of the press conference] will be useful in legal ethics classes under the heading ‘HOW NEVER TO BEHAVE.’”
I don’t know anything about Florida’s Rules of Professional Conduct – the relevant portion of the Florida Bar’s website is down – and this isn’t a Florida legal blog. But it’s interesting to analyze the lawyers’ conduct under North Carolina’s rules.
First, did their conduct violate Rule 1.6, which provides that “[a] lawyer shall not reveal information acquired during the professional relationship with a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by [specific circumstances not applicable here]”? This duty extends to former clients, Rule 1.9(c)(2), so the lawyers can’t argue that their withdrawal ended the duty. And it extends not just to information acquired from the client, but to “all information acquired during the representation, whatever the source.” Rule 1.6 cmt. 3. So the fact that the lawyers presumably learned about Zimmerman’s phone calls to the prosecutor and to Hannity from someone other than Zimmerman is irrelevant. And since the lawyers denied being in recent contact with Zimmerman, he can’t have authorized the disclosure. Therefore, nothing else appearing, their disclosure of that information during the press conference would violate the rule.
The argument that Sonner reportedly has made is that “[n]othing was discussed that wasn’t already in the media.” If that’s true, it may be a defense, either on the grounds that a lawyer cannot “reveal” what is already known, or on the grounds that a lawyer is impliedly authorized to “admit a fact that cannot properly be disputed.” Rule 1.6 cmt. 5. As far as I can tell, though, it isn’t true: the lawyers spent 45 minutes talking about the case and answering a barrage of media questions. They addressed their relationship with Zimmerman (including the fact that Sonner agreed to represent him pro bono up until charges were filed, and that Zimmerman had told Sonner that he would turn himself in if a warrant issued against him), recent actions by Zimmerman, and their opinion of Zimmerman’s mental state. Much of that doesn’t seem to have been previously known to or covered by the media. So the lawyers’ conduct appears to have violated Rule 1.6.
Second, did their conduct violate Rule 1.16, which governs the termination of representation? It appears that the withdrawal itself was proper, since Zimmerman apparently stopped communicating with his lawyers and started doing things, like contacting the prosecutor and the media, that the attorneys had advised him not to do. Zimmerman’s failure to communicate with the lawyers may have been a failure to fulfill an obligation to the lawyers, Rule 1.16(b)(6), and his efforts to contact the prosecutor and the media constituted taking action that the lawyers considered imprudent, Rule 1.16(b)(4), either of which provide grounds for withdrawal. However, upon withdrawal, a lawyer is required to “take all reasonable steps to mitigate the consequences to the client,” Rule 1.16 cmt. 9, and portraying Zimmerman as emotionally unstable and in “hiding” outside Florida arguably harmed Zimmerman’s position. The lawyers might have believed that an unexplained withdrawal would have hurt Zimmerman even more, so I don’t think this possible violation is a slam dunk, but one certainly could conclude that the lawyers’ actions were designed to protect their own reputations rather than to benefit Zimmerman, and if so, their conduct also violated Rule 1.16.
Finally, did their conduct violate Rule 3.6, which concerns publicity and media matters? The rule prohibits extrajudicial statements that a lawyer knows or should know will be disseminated in the media and that have a “substantial likelihood of materially prejudicing an adjudicative proceeding.” A comment to the rule states that it is “more likely than not” that such an effect will result from statements about “the character, credibility, [or] reputation . . . of a party.” Rule 3.6 cmt. 5. Whether or not the lawyers’ statements about Zimmerman can properly be said to concern his “character” or “credibility,” it’s reasonable to suggest that they will negatively influence potential jurors’ views of Zimmerman. The comments suggest that Zimmerman is out of control and emotionally unstable, which is exactly the image of Zimmerman that the prosecution can be expected to paint at trial.
So, what should the lawyers have said? Something like this: “We are no longer representing George Zimmerman. We’re sorry, but we can’t answer any more questions about this matter.” And then, silence.
Apr 1, 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
Osiel Gomez Narciso, Petitioner,
v.
State of South Carolina, Respondent.
ON WRIT OF CERTIORARI
Appeal From Beaufort County
J. Cordell Maddox, Jr., Circuit Court Judge
Opinion No. 27104
Heard January 25, 2012 – Filed March 14, 2012
AFFIRMED IN PART, REMANDED IN PART
Appellate Defender Elizabeth A. Franklin-Best, of Columbia, for Petitioner.
Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Matthew J. Friedman, all of Columbia, for Respondent.
CHIEF JUSTICE TOAL: Oseil Gomez Narciso (Petitioner) appeals his conviction for trafficking cocaine, and asserts that the circuit court erred in denying his motion to suppress drug evidence seized by police during a routine traffic stop. Following his conviction, Petitioner signed a Consent Order Granting Belated Direct Appeal (Consent Order) and waived his right to raise any other post-conviction relief (PCR) allegations. Petitioner requests this Court remand his case to determine whether that waiver was entered into knowingly and voluntarily. We affirm the circuit court’s order denying Petitioner’s motion to suppress, and remand the case for a determination as to whether Petitioner’s waiver was entered into knowingly and voluntarily.
FACTUAL/PROCEDURAL BACKGROUND
On August 3, 2005, the Beaufort County Sherriff’s Office (BCSO) conducted a drug investigation focusing on Petitioner. Police believed that Petitioner may have been involved in the sale and distribution of cocaine in the Hilton Head/Bluffton area of Beaufort County. A sheriff’s deputy received information that Petitioner might be operating a vehicle in the area with expired license plates and possibly no driver’s license. The deputy conducted a traffic stop of Petitioner after confirming that his license plates were indeed expired and suspended. A “back-up officer,” arrived on scene shortly thereafter. Police placed Petitioner under arrest for operating the vehicle without a driver’s license and removed him from the vehicle. Police then conducted a “K-9” search of the vehicle. The narcotics-detection dog used in the search alerted on drug residue on the vehicle, and police conducted a search of the cargo compartment. Police seized powdered cocaine from the vehicle, and charged Petitioner with knowingly and intentionally possessing a quantity of powder cocaine with a weight in excess of one hundred grams.
The Beaufort County Grand Jury indicted Petitioner for trafficking cocaine in excess of one hundred grams, and Petitioner proceeded to trial. The jury found Petitioner guilty as indicted. The circuit court sentenced Petitioner to twenty-five years imprisonment. Petitioner did not appeal his conviction or sentence, but subsequently filed a PCR application.
Petitioner claimed in his PCR application that his trial attorney failed to file a timely notice of appeal even after assuring Petitioner that he “had multiple grounds for appeal,” and that he “would almost certainly be successful in overturning the convictions at the appellate level.” According to the Consent Order, Petitioner’s trial counsel admitted that he failed to file an appeal even though Petitioner requested one be filed. Thus, the State consented to granting Petitioner a belated direct appeal pursuant to White v. State, 263 S.C. 110, 208 S.E.2d 35 (1974)[1]. In the same Consent Order, Petitioner “waived his right to raise any other PCR allegations.”
In a petition for writ of certiorari to this Court, Petitioner asserted that the PCR judge properly found that he did not waive his right to a direct appeal, and requested this Court remand his case to determine whether his waiver of any other PCR allegations was entered into knowingly or voluntarily. This Court granted the petition for writ of certiorari as to whether Petitioner knowingly and voluntarily waived his right to direct appeal, dispensed with further briefing on that question, and elected to proceed with further review of the direct appeal issue—the validity of the stop and search. Additionally, this Court granted review of whether Petitioner’s waiver of any other PCR allegations was entered into knowingly and voluntarily.
ISSUES PRESENTED
| Whether the circuit court erred in admitting evidence obtained as a result of Petitioner’s traffic stop. |
| Whether Petitioner’s waiver of PCR allegations, other than the belated direct appeal issue, was entered into knowingly and voluntarily. |
STANDARD OF REVIEW
On appeal from a motion to suppress on Fourth Amendment grounds, this Court applies a deferential standard of review and will reverse only if there is clear error. State v. Tindall, 388 S.C. 518, 520, 698 S.E.2d 203, 205 (2010) (citation omitted). However, this Court is not barred from conducting its own review of the record to determine whether the trial judge’s decision is supported by the evidence. Id.
On certiorari in a PCR action, the Court applies the “any evidence” standard. Accordingly, this Court will affirm if any evidence of probative value in the record exists to support the findings of the PCR court. Terry v. State, 394 S.C. 62, 66, 714 S.E.2d 326, 328 (2011) (citation omitted).
LAW/ANALYSIS
I. Whether the circuit court erred in admitting evidence obtained as a result of Petitioner’s traffic stop.
Petitioner argues that the facts presented by police to the circuit court did not rise to the level of “reasonable suspicion,” and that he was “unreasonably seized.” Thus, according to Petitioner, his Fourth Amendment rights were violated, and this Court should reverse his conviction. We agree with Petitioner that the search incident to arrest in this case violated his Fourth Amendment rights. However, for reasons explained below, the exclusion remedy is unavailable to Petitioner, and thus his conviction will stand.
In New York v. Belton, 453 U.S. 454 (1981), the United States Supreme Court initially explained the constitutionally permissible scope of a search incident to arrest. In that case, police ordered the driver of a speeding vehicle to pull over to the side of the road and stop. Id. at 455. The policeman asked to see the driver’s license and automobile registration and simultaneously smelled burnt marijuana. Id. at 455–56. The officer directed the occupants out of the car and conducted a pat down of the four men. Id. at 456. The officer then conducted a search of the passenger compartment of the car, including a black leather jacket belonging to Belton. Id. He unzipped one of the pockets of the jacket and discovered cocaine. Id.
Belton argued that the cocaine had been seized in violation of the Fourth and Fourteenth Amendments. Belton, 453 U.S. at 456–57. The Court stressed the need to provide a “workable rule,” and held that when a policeman has made a lawful custodial arrest of the occupant of an automobile, “he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” Id. at 459–60. The Court reasoned that the police should also be allowed to examine the contents of any containers found within the passenger compartment, “for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach.” Id. at 460–61 (citations omitted).
In the instant case, the police stopped Petitioner as part of an ongoing drug investigation, but primarily because the license tags on his automobile were expired. The police officer asked Petitioner for his driver’s license, and verified that Petitioner did not possess a valid driver’s license. Thus, he arrested Petitioner, and police searched Petitioner’s vehicle incident to that arrest.
Petitioner challenged the search at trial. The circuit court judge initially expressed concern at the vehicle search following a mere traffic stop, but denied Petitioner’s motion to suppress:
It concerns me that the law enforcement in this case would risk this investigation by making a search under these circumstances without obtaining a search warrant. It would have been a very easy thing to do. There was just no reason that it needed to be done the way that they did it . . . . But after looking especially at the case of New York v. Belton, 433 U.S. 454, is [sic] the only thing that tips the scales in the State’s favor in this case; and that is that a search may be made incident to an arrest of the passenger compartment of the vehicle, including containers located in the passenger compartment where the search incident to arrest even if the detainee has been arrested and removed from the vehicle.
Petitioner’s trial took place in 2007, two years prior to the United States Supreme Court’s holding in Arizona v. Gant, 556 U.S. 332 (2009). In Gant, the United States Supreme Court limited the expansive searches allowed by Belton. The Court noted that Beltonhad been widely understood to “allow a vehicle search incident to arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search.” Id. at 1718. The Court found this reading incompatible with its previous decisions regarding the basic scope of searches incident to lawful custodial arrests. Id. at 1719 (citation omitted). Therefore the Court held that police may search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search or when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle. Id. (citing Thornton v. United States, 541 U.S. 615, 624–25 (2004)).
Newly announced rules of constitutional criminal procedure must apply retroactively to all cases, “pending on direct review or not yet final, with no exception for cases in which a new rule constitutes a ‘clear break’ with the past.” Griffith v. Kentucky, 479 U.S. 314, 328 (1987). Petitioner’s conviction has not yet become final on direct review. Thus, Gant applies retroactively to this case, and Petitioner may invoke its rule of substantive Fourth Amendment law as a basis for seeking relief. However, our analysis of the instant case is further controlled by the United States Supreme Court’s decision in Davis v. United States, 131 S.Ct. 2419 (2011).
In Davis, the defendant was charged and convicted of unlawful possession of a firearm based on discovery of a revolver in a stopped automobile in which he was the only passenger. Id. at 2425–26. During the pendency of Davis’s appeal, the United States Supreme Court decided Gant. The Eleventh Circuit applied Gant‘s new rule and held that the vehicle search incident to arrest violated Davis’s Fourth Amendment rights. Id. at 2426 (citation omitted). However, the court concluded that penalizing the arresting officer for following binding appellate court precedent would do nothing to deter Fourth Amendment violations. Id. (citingUnited States v. Davis, 598 F.3d 1259, 1265–66 (2010)).
The United States Supreme Court agreed, and reasoned that the acknowledged absence of police culpability doomed Davis’s claim. Id. at 2428. “Police practices trigger the harsh sanction of exclusion only when they are deliberate enough to yield ‘meaningful deterrence’ and culpable enough to be ‘worth the price paid by the justice system.'” Id. (citing Herring v. United States, 555 U.S. 135, 144 (2009)). Excluding evidence in cases where the “constable” has scrupulously adhered to governing law deters no police conduct and imposes substantial social costs. Davis, 131 S.Ct. at 2434. Thus, the Court held that when the police conduct a search in objectively reasonable reliance on binding appellate precedent, the exclusionary rule does not apply. Id.
In the instant case, the search incident to arrest violated Petitioner’s Fourth Amendment rights pursuant to Gant. However, excluding the evidence against Petitioner would not deter police misconduct because the police in this instance conducted a search incident to arrest pursuant to binding appellate precedent. See id. at 2426–28. Moreover, exclusion of the evidence in this case would result in severe social costs, including the articulation of an inexplicable and undecipherable message to law enforcement regarding how to conduct a legal search. The protection of the Fourth Amendment can only be realized if the police are acting under a set of rules which make it possible to reach a correct determination beforehand as to whether an invasion of privacy is justified in the interest of law enforcement. Wayne R. LaFave, “Case-By-Case Adjudication” Versus “Standardized Procedures”: The Robinson Dilemma, 1974 Sup. Ct. Rev. 127, 142 (1974).
This Court will only reverse the circuit court’s decision on a motion to suppress when there is clear error. State v. Tindall, 388 S.C. 518, 520, 698 S.E.2d 203, 205 (2010). The circuit court in this case applied the established law to a search executed pursuant to binding precedent. Thus, Davis v. United States, and our own standard of review, commands that the circuit court’s decision be affirmed.[2]
II. Whether the Petitioner’s waiver of PCR allegations, other than the belated direct appeal issue, was entered into knowingly and voluntarily.
Petitioner signed a consent order granting belated direct appeal and waived his right to raise any other PCR allegations. He now asks this court to remand his case for a determination as to whether he knowingly and voluntarily waived his right to raise additional PCR claims.
In order to determine whether a waiver is effective, the court examines the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused. Spoone v. State, 379 S.C. 138, 143, 665 S.E.2d 605, 607 (2008) (citing United States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir. 1995)). Numerous jurisdictions have upheld waivers of post-conviction relief, provided they were knowing and voluntary. Id. at 143, 665 S.E.2d at 607. A defendant’s knowing and voluntary waiver of statutory or constitutional rights must be established by a complete record, and may be accomplished by a colloquy between the court and defendant, between the court and defendant’s counsel, or both. Brannon v. State, 345 S.C. 437, 439, 548 S.E.2d 866, 867 (2001).
In Spoone v. State, 379 S.C. 138, 665 S.E.2d 605 (2008), this Court addressed whether a PCR court erred in enforcing a written plea agreement wherein the petitioner waived his right to direct appeal, PCR, and habeas corpus relief. The petitioner argued that his waiver was not knowing and intelligent because there was no discussion at the plea proceeding about the extent of his understanding of the waiver. Id. at 141, 665 S.E.2d at 607.
The Court took into account that although petitioner had only a ninth grade education, the text of the written plea agreement was straightforward. Id. at 143–44, 665 S.E.2d at 608. In addition, the plea colloquy showed that the PCR court specifically asked petitioner about the waiver both in the language of the plea agreement, and in “plain language.” Id. Two attorneys accompanied petitioner to the plea hearing and both signed the written plea agreement along with petitioner. Id. Thus, this Court held that the PCR court correctly enforced the waiver and dismissed petitioner’s PCR application. Id.
In this case, according to the Consent Order, Petitioner appeared before the PCR court on August 26, 2008. The Consent Order states that Petitioner waived his right to raise any other PCR allegations, but was “granted a belated direct appeal pursuant to White v. State.” The record before this Court of the colloquy between the parties consists of the following:
The court: What’s the—what we got this morning?
Mr. Friedman: Your Honor, the first one is Osiel Gomez Narcisco [sic].
The court: All right.
Mr. Friedman: May we approach on this one?
The court: Yeah
(Bench conference)
Mr. Friedman: Thank you, Your Honor.
The court: Okay. Appreciate it. Thank you.
The Consent Order signed by Petitioner is straightforward. However, Petitioner used an English-speaking interpreter throughout his original trial, and apparently has, at best, a limited command of the English language. The colloquy provided to this Court does not show that the PCR court specifically asked Petitioner about the waiver, either in the language of the Consent Order, or in “plain language.”
The State argues that Petitioner’s case is distinguishable from Spoone because in that case the issue was “whether the right to appellate review and post-conviction review may be waived by a written plea agreement . . . ,” and that “[Petitioner] proceeded to trial and was convicted.” This is a distinction without a difference. The key issue in Spoone and in Petitioner’s case is the circumstances surrounding the waiver of the right to appeal PCR allegations. Aside from the consent agreement, the record in this case does not support the conclusion that Petitioner entered into the agreement knowingly and voluntarily. Additionally, the colloquy between the court and the defendant in this case does not clearly establish that Petitioner knowingly and voluntarily waived his right to raise any other PCR allegations. This Court will affirm the PCR court’s findings if any evidence of probative value exists in the record. Terry v. State, 394 S.C. 62, 66, 714 S.E.2d 326, 328 (2011). However, finding that no such evidence exists in the instant case, we must remand for a determination as to whether Petitioner’s waiver was entered into knowingly and voluntarily.
CONCLUSION
We affirm the circuit court’s denial of Petitioner’s motion to suppress. However, the record does not adequately demonstrate whether Petitioner’s waiver was in accordance with this Court’s waiver jurisprudence. Thus, we remand the case for a determination on that issue.
AFFIRMED IN PART, REMANDED IN PART.
PLEICONES, BEATTY, KITTREDGE and HEARN, JJ., concur.
[1] In White v. State, 263 S.C. 110, 113, 208 S.E.2d 35, 36 (1974), the defendant was convicted of burglary and sentenced to twenty years imprisonment. The defendant did not appeal his conviction or sentence, but subsequently filed a petition for PCR and a circuit court denied that relief in a full evidentiary hearing. Id. The defendant argued on appeal that the PCR judge should have ordered a new trial because the defendant did not knowingly and intelligently waive the right to appeal from his conviction and sentence. Id. at 117, 208 S.E.2d at 39. The defendant’s trial counsel testified at the PCR hearing that he did not advise the defendant of his right to appeal because he was certain the defendant knew of his rights due to his prior criminal record. Id. The PCR judge found that the defendant did not knowingly and intelligently waive his right to appeal, and directed defendant’s new counsel to secure a belated appeal to this Court from his conviction and sentence. Id. at 118, 208 S.E.2d at 39. This Court found that with regard to this belated appeal, no notice of appeal had been filed, and thus the Court had no jurisdiction over such an appeal. Id. at 119, 208 S.E.2d at 39. However, the Court reviewed the record in connection with the properly presented PCR appeal and ruled that “there was no reversible error in the trial and that there was not an arguably meritorious ground of appeal, even if notice of intention to appeal had been timely served . . . .” White, 263 S.C. at 119, 208 S.E.2d at 40.
[2] Respondent argues that due to Gant, the “search-incident-to-arrest logic is no longer appropriate grounds for denying the suppression motion,” and urged this Court to find the search was justified under the automobile exception. However, the decision in Davis being dispositive, this Court need not reach the automobile exception, or any other grounds, for upholding the search. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1998) (holding that appellate courts need not discuss remaining issues when determination of a prior issue is dispositive).
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).
