Jan 20, 2013 | Criminal Defense, Drug Crimes and Controlled Substances Defense, Felony Drug Possession, Felony Possession of a Firearm, Possession with Intent to Distribute a Controlled Substance, Uncategorized
A York man with convictions dating back to 1998 that prevent him from having a weapon was arrested Friday by deputies on drug and weapons charges, according to jail records.
The man was charged with possession of a weapon by a convicted felon, possession of drugs with intent to distribute, and possession of marijuana, jail records showed Saturday. The man’s criminal record according to State Law Enforcement Division records includes conviction for assault, domestic violence, and escape from prison.
The York County Clerk of Court public index shows an attempted murder charge against the man was dismissed in December due to insufficient evidence to prosecute him on the charge. Jail records Saturday showed the man was being held on $10,620 bond. If you or a loved one is facing drug charges, contact the law offices of Reeves, Aiken, and Hightower, LLP to consult with one of our criminal attorneys. Our criminal attorneys also handle many other types of criminal cases in North and South Carolina. We are licensed in both North Carolina and South Carolina, where you can contact us at 704-499-9000 or 877-374-5999 toll-free.
Jan 19, 2013 | Burglary/Robbery/Larceny, Criminal Defense, Felony Possession of a Firearm, Uncategorized
Authorities are charging a gunman with armed robbery after he stole money and jewelry from a clerk late Wednesday at the Dollar General in Lancaster County, SC.
As the clerk was closing the store around 10 p.m., the man entered the store on Pageland Highway with a handgun and demanded money from the cash register along with her personal jewelry, according to a release from Lancaster County Sheriff’s Office.
If you or someone you know is coping with criminal charges in North or South Carolina, contact the law offices of Reeves, Aiken, and Hightower, LLP to consult with one of our criminal attorneys.
We handle many different types of criminal cases, including but not limited to, drug related offenses, driving under the influence (DUI), and robbery/burglary. Our criminal attorneys want to help you or someone you know with the difficulties you may encounter with your case. We are licensed in both North Carolina and South Carolina, where you can contact us at 704-499-9000 or 877-374-5999 toll-free.
Jan 19, 2013 | Criminal Defense, Drug Crimes and Controlled Substances Defense, Felony Drug Possession, Possession with Intent to Distribute a Controlled Substance, Uncategorized
A man and woman were arrested this week after trying to fill fraudulent prescriptions for Oxycodone and Adderall at Rock Hill pharmacies, according to Rock Hill Police reports. Narcotics investigators were advised that a man and a woman dropped off fraudulent prescriptions at the Walgreens on Cherry Road and the CVS on Celanese Road on Wednesday, said the commander of York County’s Drug Enforcement Unit.
Police arrested the man and woman at a Rock Hill CVS, the reports state. In addition to trying to obtain “trafficking amounts” of Oxycodone, Brown said, they had other drugs with them in Rock Hill, along with Oxycodone. Rock Hill officers found the man and woman with 18 units of Alprazolam, “with the intent to distribute,” the report states.
Police also confiscated a blank prescription pad and $6,212 in cash incident to the arrest of the two. The man and woman are each charge
d with possession with intent to distribute near a school Oxycodone and Alprazolam, trafficking Oxycodone and possession of a prescription pad, according to police.
Criminal drug charges bring hardship and stress to any person. If you or someone you know is dealing with drug charges in North or South Carolina, contact the law offices of Reeves, Aiken, and Hightower, LLP to consult with one of our criminal attorneys. We have criminal attorneys who want to help you and who handle many other types of criminal cases. We are licensed in both North and South Carolina, where you can contact us at 704-499-9000 or 877-374-5999 toll-free.
Mar 11, 2012 | Criminal Defense, Uncategorized
This SC Supreme Court decision reaffirms the critical importance of issuing warrants. Without the signature of the issuing judge, the warrant is just a “piece of unfinished paper.” Any evidence obtained pursuant to such a “warrant” is, therefore, invalid and must be suppressed. If ever confronted with a law enforcement officer seeking to search your home or business, ask to see the warrant. If not signed, you can object to allowing the police to go forward. If they insist on proceeding, call an experienced criminal defense lawyer immediately and decline to answer any questions until you get advice. Better make sure your attorney knows and understands this complex area of criminal law and is willing to fight to make sure you get a fair and just trial. There is too much at stake to risk an inexperienced lawyer.
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 803-548-4444 for a private consultation. Or visit our firm’s website at www.rjrlaw.com
THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Petitioner/Respondent,
v.
Kevin Covert, Respondent/Petitioner.
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal from Greenville County
James C. Williams, Jr., Circuit Court Judge
Opinion No. 26632
Heard January 21, 2009 – Filed April 13, 2009
AFFIRMED AS MODIFIED
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott and Senior Assistant Attorney General Norman Mark Rapoport, all of Columbia, and Robert Mills Ariail, of Greenville, for Petitioner/Respondent.
Katherine Carruth Link, of West Columbia, for Respondent/Petitioner.
JUSTICE PLEICONES: We granted certiorari to review the Court of Appeals decision in State v. Covert, 368 S.C. 188, 628 S.E.2d 482 (Ct. App. 2006)[1] and now affirm, as modified, that court’s decision to grant respondent a new trial. In a split decision, Judges Short and Anderson found reversible error in the jury’s possession of a statute during deliberations; in addition, Judge Short found that evidence should have been suppressed, and Judge Anderson found reversible error in the verdict form.
We hold, as did Judge Short, that an unsigned search warrant is invalid, and agree with Judge Anderson that when a verdict form is submitted to a jury in a criminal case, it must affirmatively offer a “not guilty” option. Finally, while we agree with Judges Short and Anderson that it was error to permit this jury to have a written version of the trafficking statute with it during deliberations, we would not find sufficient prejudice from that error alone to warrant reversal.
ISSUES
| Did Judge Short err in holding that an unsigned search warrant is invalid? |
| Did Judge Anderson err in finding the verdict form here was so prejudicial as to require reversal? |
| Did permitting the jury to have a written version of the trafficking statute with it during deliberations require reversal? |
ANALYSIS
1. Warrant
The search warrant in this case is signed by the magistrate, and dated September 28, 2002; the accompanying two-page affidavit is signed by her on each page, and both these signatures are dated September 26, 2002. The return is signed and dated September 27, 2002. It is undisputed that the warrant was obtained and served on September 26, 2002.
At trial, respondent contended that the warrant was unsigned when it was served, that it was therefore invalid, and that accordingly the evidence seized pursuant to the search should be suppressed. Respondent argued that, without the magistrate’s signature, the warrant was not issued within the meaning of South Carolina’s search warrant statute, S.C. Code Ann. § 17-13-140 (1985). The trial judge refused to suppress the evidence even though he found the warrant had not been signed before it was served, holding that the search warrant statute was subject to a “good faith” exception, and that such an exception was applicable here.
On appeal, Judge Short held that the search warrant was not issued within the meaning of the statute because it lacked a timely signature. Judge Short also held there was a good faith exception to the statutory warrant procedures, but that it was inapplicable here. We agree that the absence of the magistrate’s signature at the time the warrant was served invalidates it, but do not reach the issue whether there exists a “good faith” exception to the statutory warrant requirements since we find, as explained below, that no warrant was ever issued.
We have held, in the context of an arrest warrant, that such a warrant is not lawful where the issuing judicial officer failed to sign the warrant on the space provided on the warrant form. Davis v. Sanders, 40 S.C. 507, 19 S.E 138 (1894). Although the State would characterize such an omission as merely procedural or ministerial, we disagree. The Davis Court gave a persuasive explanation of the signature requirement, albeit in the context of an arrest warrant:
[W]hen it is remembered that a sheriff or other officer, who undertakes to arrest a citizen under a warrant, is bound to show his warrant, if demanded, to the person proposed to be arrested, and if he refuses to do so the arrest may be lawfully resisted [internal citation omitted], we think it would be very dangerous to the peace of society for the court to hold that a paper, which shows on its face that it is an unfinished paper…would be a sufficient justification for an arrest.
The same policy considerations apply to a search warrant, [2] and thus the lack of the issuing officer’s signature is not excusable as merely procedural or ministerial, but rather negates the existence of a warrant, creating instead “an unfinished paper.” As the DavisCourt went on to hold, the fact that the issuing officer intended to sign the warrant and had in fact signed the back was not sufficient to validate it, nor was the arrest legal despite the fact the officers who executed the arrest pursuant to the “warrant” were “entirely innocent of any intentional wrong.”
The Davis requirement that a warrant must be signed by the issuing judicial officer in order to be complete is a common law decision predicated on public policy considerations. The signature is the assurance that a judicial officer has found that law enforcement has made the requisite probable cause showing, and serves as notice to the citizen upon whom the warrant is served that it is a validly issued warrant. Without the signature, it is merely an “unfinished paper.” Davis, supra; see also DuBose v. DuBose, 90 S.C. 87, 72 S.E. 645 (1911) (“But it has been decided [in Davis] that, when an officer is performing the ministerial duty of issuing a paper on compliance with certain conditions prescribed by law, his signature at the foot of the paper he intended to sign is necessary to its validity”).
We consider also whether the unsigned warrant can be upheld in the face of § 17-13-140, the general search warrant statute. The statute contains requirements different from those mandated by the Fourth Amendment, and is in some ways “more strict” than the federal constitution. State v. McKnight, 291 S.C. 110, 352 S.E.2d 471 (1987). While we have recognized a “good faith” exception to the statute’s requirements where the officers make a good faith attempt to comply with the statute’s affidavit procedures,McKnight, supra, explaining State v. Sachs, 264 S.C. 541, 216 S.E.2d 501 (1975), we have left open the question whether a good faith exception would be applied where “the officers reasonably believe the warrant is valid when the search is made, but is subsequently determined to be invalid.” McKnight, supra. Here, we do not reach the question whether there exists a good faith exception to the statute where a defective warrant is issued, since under South Carolina law an unsigned warrant is not a warrant, and is not capable of being issued within the meaning of § 17-13-140. See also Davis, supra (officers good faith irrelevant where warrant is not signed).
The circuit court erred in refusing to suppress the evidence seized pursuant to the unsigned “warrant.” Respondent is therefore entitled to a new trial.
2. Verdict Form
In this case, the jury was given a verdict form which tracked the provisions of the trafficking statute, but did not specifically allow the jury to return a “not guilty” verdict. We agree with Judge Anderson that this was error and hold that henceforth, any verdict form given to a jury for use in a criminal case must specifically include as an option “not guilty.” We therefore overrule State v. Myers, 344 S.C. 532, 544 S.E.2d 851 (Ct. App. 2001) to the extent it holds that a jury charge can negate prejudice from the lack of a “not guilty” choice on a verdict form.
3. Trafficking Statute
Judge Short and Judge Anderson found reversible error in the trial court’s submission to the jury of the trafficking statute, while Judge Goolsby found no error. Since this case was tried and the appeal decided by the Court of Appeals, we have held that it is within the trial judge’s discretion to “submit its instructions on the law to the jury in writing.” State v. Turner, 373 S.C. 121, 644 S.E.2d 693 (2007). We caution the bench again, as we did in Turner, that this practice should be used sparingly, and only where it will aid the jury and where it will not prejudice the defendant. It is never appropriate, however, to give only part of the charge to the jury as was done in this case.
CONCLUSION
The Court of Appeals decision reversing respondent’s convictions and sentences is
AFFIRMED AS MODIFIED.
WALLER, BEATTY, JJ., and Acting Justice James E. Moore, concur. TOAL, C.J., concurring in a separate opinion.
Chief Justice Toal: Although I concur in the decision to affirm the court of appeals’ decision reversing Covert’s conviction, I write separately because I would reach this decision on different grounds.
As a primary matter, I do not find that Davis v. Sanders, 40 S.C. 507, 19 S.E. 138 (1894) controls this case. Davis was decided over one hundred years ago, prior to the passage of § 17-13-140. Moreover, the Davis Court, in the absence of any statutory authority, relied on prior case law in declaring that a warrant must be signed.[3] See State v. Vaughn, 16 S.C.L. (Harp.) 313 (1824) (holding that a warrant that was signed but not sealed was nevertheless a valid warrant). Moreover, I find it significant that the parties inDavis conceded that a warrant had to be signed, thereby leaving only the issue of whether the magistrate’s notation on the warrant constituted a signature for the Court’s determination. Accordingly, I believe that Davis is somewhat irrelevant to the facts of this case and that we must solely look to § 17-13-140 to determine the validity of this warrant.
Section 17-13-140 does not specifically require the magistrate to sign the warrant, but rather, merely requires that a magistrate “issue” the warrant. Nonetheless, a magistrate’s signature indicates that she has made the necessary probable cause finding required before issuing the warrant. Even assuming that an unsigned warrant is defective, I do not believe that this alone necessarily renders the warrant void ab initio.
This Court has held that the good faith exception to the exclusionary rule applies in cases where officers make a good faith attempt to comply with the statute’s affidavit requirements. See State v. McKnight, 291 S.C. 110, 112-13, 352 S.E.2d 471, 472 (1987) (refusing to apply the good faith exception where the officers failed to attempt to comply in good faith to the affidavit requirements);State v. Sachs, 264 S.C. 541, 559, 216 S.E.2d 501, 510 (1975) (allowing evidence to be admitted pursuant to the good faith exception where officers attempted in good faith to comply with the statutory requirements). In my view, the policy reasons for applying the good faith exception to the exclusionary rule in other cases are applicable in this case. See State v. Harvin, 345 S.C. 190, 194, 547 S.E.2d 497, 500 (2001) (recognizing that the main purpose of the exclusionary rule is the deterrence of police misconduct). Covert does not allege that the officers knew the warrant was unsigned or deliberately obtained the warrant without a signature, and the record contains no evidence that he was prejudiced by the statutory violation. Therefore, I would hold that the officers attempted in good faith to comply with § 17-13-140’s requirements and the exclusionary rule should not render the evidence inadmissible.
In my view, the fatal flaw in the State’s case is its failure to present any evidence at trial that the magistrate made a probable cause finding. As the majority observes, the signature on the warrant indicates that a judicial officer found that law enforcement made the requisite probable cause showing, a finding clearly required before a warrant may be issued. The State bore the burden of proving the validity of the warrant and, in my view, while the absence of a magistrate’s signature may be a factor in determining whether the warrant was issued upon probable cause, it is not dispositive of the determination. However, by failing to call the magistrate to testify that she issued the warrant upon finding probable cause, the State failed to present any evidence to show the warrant was valid and therefore did not carry its burden. See Sachs, 264 S.C. at 555, 216 S.E.2d at 508 (recognizing that “all that is necessary to justify the issuance of a warrant is probable cause”); see also U.S. Const. amend. IV and S.C. Const. art. I (mandating that a warrant must be supported by probable cause).
For these reasons, I would hold that the good faith exception is applicable under these circumstances, but that the State failed to carry its burden of proving the magistrate issued the warrant upon finding probable cause. Accordingly, I concur with the majority’s decision to affirm as modified the court of appeals’ opinion.
[1] The facts are fully reported in that opinion, and the verdict form is reproduced in Judge Anderson’s concurring opinion.
[2] See S.C. Code Ann. § 17-13-150 (2003) (copy of warrant and affidavit shall be furnished to person served)
[3] Specifically, the Davis Court found that the lower court properly charged the jury that “a warrant need not be under seal, yet it must be in writing, and signed by the officer issuing.” Id. at 509, 19 S.E. at 139.
Mar 11, 2012 | Criminal Defense, Uncategorized
This SC Supreme Court case deals with a post-conviction relief petition (PCR) by a criminal defendant who claimed he was not properly advised by his lawyer. The Court found against the PCR relief, but this case also shows what can happen when probation is violated and subsequently revoked. In many criminal cases, the defendant is given a long sentence but a fairly short period of probation. As long as the defendant follows the rules, his probation term will end, and he is free to move on with his life. However, any significant violation can cause the probation to be revoked, and the defendant will be sent to prison for his original sentence. In many cases, a probation violation hearing can be defended. Better make sure your attorney knows what to argue here. The stakes of being sent to prison are too high to risk an inexperienced lawyer.
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 today at 803-548-4444 for a private consultation. Or visit our firm’s website at www.rjrlaw.com
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Harold B. Turner, Petitioner,
v.
State of South Carolina, Respondent.
ON WRIT OF CERTIORARI
Appeal from Spartanburg County
John M. Milling, Circuit Court Judge
Opinion No. 26708
Submitted April 22, 2009 – Filed August 24, 2009
AFFIRMED
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, Assistant Attorney General Prentiss Counts, all of Columbia, for Respondent.
CHIEF JUSTICE TOAL: In this case, the Court granted a writ of certiorari to review the post-conviction relief (PCR) court’s denial of relief to Petitioner Harold B. Turner.
FACTUAL/PROCEDURAL BACKGROUND
In 1994, Petitioner pled guilty to second degree burglary and was sentenced to fifteen years imprisonment, suspended upon time served and five years probation. Subsequently, his probation was revoked. Petitioner did not directly appeal his probation revocation. Petitioner filed an application for PCR alleging probation counsel was ineffective for failing to advise him of his right to a direct appeal.
At the PCR hearing, Petitioner testified that after the revocation hearing, he asked probation counsel, “What can we do?” and that counsel responded “the judge made his ruling,” and testified that he would have requested an appeal if he had known his rights. Probation counsel testified that there were no appealable issues stemming from the probation revocation and that Petitioner never inquired about an appeal. The PCR court found that there were no non-frivolous grounds for an appeal and that no extraordinary circumstances existed and denied Petitioner relief.
This Court granted Petitioner’s request for a writ of certiorari, and Petitioner presents the following issue for review:
Did the PCR court err in finding probation counsel was not ineffective in failing to advise Petitioner of his right to a direct appeal from his probation revocation?
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 certiorari, 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). However, this Court will reverse the PCR court’s decision when it is controlled by an error of law. Pierce v. State, 338 S.C. 139, 145, 526 S.E.2d 222, 225 (2000).
LAW/ANALYSIS
As a primary matter, we must first address the basis upon which Petitioner claims he is entitled to relief. Since Petitioner seeks relief due to ineffective assistance of counsel, Petitioner bases his PCR application on a violation of his Sixth Amendment right to counsel. See Duckson v. State, 355 S.C. 596, 598, 586 S.E.2d 576, 577 (2003), citing McKnight v. State, 320 S.C. 356, 465 S.E.2d 352 (1995) (observing that an ineffective assistance claim is premised on the violation of an individual’s Sixth Amendment right to counsel). However, a probationer does not have a Sixth Amendment right to counsel.[1] Rather, the right to counsel may arise pursuant to the Due Process Clause under the Fifth and Fourteenth Amendments. See Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973).[2] In South Carolina, however, all persons charged with probation violations have a right to counsel and must be informed of this right pursuant to court rules and case law. Barlet v. State, 288 S.C. 481, 483, 343 S.E.2d 620, 621 (1986); Rule 602(a), SCACR.
In Duckson, the parolee filed an application for PCR alleging that he received ineffective assistance of counsel at his parole revocation hearing. In South Carolina, a parolee has a statutory right to have counsel present at a parole revocation hearing[3] but, similar to a probationer, does not have a Sixth Amendment right to counsel. As Duckson makes clear, neither a parolee nor a probationer has a Sixth Amendment right to counsel. Accordingly, this Court held that because the parolee could not assert a Sixth Amendment violation and because he did not contend his due process rights were violated, the parolee failed to allege the parole revocation was unlawful and thus failed to state a claim cognizable in a PCR action.
We find the Duckson analysis instructive to the instant case. Although parole revocation and probation revocation are different types of proceedings,[4] to the extent there is a constitutional right to counsel in either context, it exists only by virtue of the Due Process Clause. See Gagnon, 411 U.S. 778, 782 n.3 (observing that, despite minor differences between parole and probation, the revocation of probation is constitutionally indistinguishable from the revocation of parole). Petitioner has only alleged a Sixth Amendment violation, namely that probation counsel was ineffective in failing to inform him of his right to a direct appeal, and thus, under Duckson, it appears he has failed to state a cognizable claim in a PCR action.
However, Duckson is distinguishable from the instant case in an important respect. Unlike a parolee, we have held that, pursuant to court rule, a probationer has a right to counsel. See Barlet and Rule 602(a). A parolee’s statutory right to have counsel present is not comparable to a probationer’s absolute right under state law to appointed counsel. We now hold that because a probationer has a right to counsel, albeit not a Sixth Amendment right, the same analysis for ineffectiveness that applies in other PCR proceedings involving claims against counsel should, by analogy, apply in PCR proceedings involving claims against probation counsel. In our view, this approach does not elevate form over substance by, for example, allowing a probationer to proceed on a due process violation but not allowing him to proceed on an ineffective assistance claim despite the fact that both claims stem from the failure to be informed of his right to appeal. Additionally, this approach eases confusion as well as the burden on the lower courts by providing a uniform standard.[5]
To this end, we must determine whether, under our Strickland jurisprudence, probation counsel was ineffective for failing to inform Petitioner of his right to appeal the revocation of his probation. We hold that he was not.
Following a trial, counsel must inform a defendant who has been found guilty of a crime of the possibility of an appeal and the method for taking an appeal. Frasier v. State, 306 S.C. 158, 161, 410 S.E.2d 572, 574 (1991). In a plea proceeding, however, there is no requirement that plea counsel inform a defendant of the right to a direct appeal absent extraordinary circumstances. Weathers v. State, 319 S.C. 59, 61, 459 S.E.2d 838, 839 (1995); see also Roe v. Flores-Ortega, 528 U.S. 470 (2000) (holding that counsel has a constitutional duty to inform a defendant of his right to appeal a guilty plea if there is reason to think that a rational defendant would want to appeal or that the defendant demonstrated an interest in appealing).[6]
We hold that probation counsel is not required to inform a probationer of his right to an appeal absent extraordinary circumstances. This holding is in accord with counsel’s duties at a plea hearing. See Weathers, 319 S.C. at 61, 459 S.E.2d at 839 (holding that, “absent extraordinary circumstances, there is no constitutional requirement that a defendant be informed of the right to a direct appeal from a guilty plea.”). In our view, a probationer should not be afforded additional protections in a probation revocation hearing, a proceeding that is not a stage of criminal prosecution and that occurs after sentencing, which are not constitutionally mandated in a guilty plea hearing. In other words, probation counsel is not held to a higher performance standard than that imposed upon plea counsel.
In the instant case, the PCR court found probation counsel’s testimony more credible than Petitioner’s testimony. Additionally, there is evidence in the record to support the PCR court’s finding that there were no non-frivolous grounds for an appeal and that no extraordinary circumstances existed. Accordingly, because Petitioner failed to show extraordinary circumstances, he is not entitled to relief.
CONCLUSION
For these reasons, we affirm the PCR court’s order denying Petitioner relief.
WALLER, PLEICONES, BEATTY and KITTREDGE, JJ., concur.
[1] In Huckaby v. State, 305 S.C. 331, 408 S.E.2d 242 (1991), we held that a probationer must be informed of his right to counsel and he must make a willing and knowing waiver of counsel. We also stated that “a probationer retains his full Sixth Amendment right to counsel.” Id. at 335, 408 S.E.2d at 244. Because a probationer does not have a Sixth Amendment right to counsel, this statement is incorrect, and any interpretation of the opinion asserting that a probationer is afforded the same constitutional protections as an accused is erroneous. A South Carolina probationer’s right to counsel in a probation revocation hearing is grounded in our case law and court rules. A constitutional right to counsel may arise pursuant to the Due Process Clause, but cannot arise pursuant to the Sixth Amendment.
[2] In Gagnon v. Scarpelli, the Supreme Court held that whether a probationer has a constitutional right to counsel in a revocation hearing should be decided on a case-by-case basis, taking into consideration the complexity of alleged violations and whether the probationer can meaningfully contest the alleged violations.
[3] S.C. Code Ann. § 24-21-50 (Supp. 2002).
[4] Parole eligibility is a collateral consequence of sentencing and is a matter that falls within the province of the Board of Probation, Parole, and Pardon Services. Brown v. State, 306 S.C. 381, 382, 412 S.E.2d 399, 400 (1991); S.C. Code Ann. § 24-21-13 (Supp. 2006). Probation, on the other hand, is a matter within the jurisdiction of the trial court and is judicially-imposed at the time of sentencing. Duckson, 355 S.C. at 598 n. 2, 586 S.E.2d at 578 n. 2; S.C. Code Ann. § 24-21-450 (Supp. 2006).
[5] Our holding today does not alter our PCR jurisprudence regarding claims of ineffective assistance of counsel, nor should it be interpreted as creating additional rights to PCR applicants. Indeed, this Court has granted relief based on “ineffective assistance” of PCR counsel despite the fact that the right to PCR counsel arises from Rule 71.1, SCRCP, and not from the constitution. See e.g., Washington v. State, 324 S.C. 232, 478 S.E.2d 833 (1996) (granting PCR where the defendant alleged ineffective assistance of PCR counsel due to so many procedural irregularities) and Austin v. State, 305 S.C. 453, 409 S.E.2d 395 (1991) (recognizing that the constitutional right to counsel does not extend to discretionary appeals on collateral attack, but allowing a PCR applicant to receive a belated appeal from the denial of his initial PCR application where first PCR counsel failed to file a notice of appeal); but see Aice v. State, 305 S.C. 448, 451, 409 S.E.2d 392, 394 (1991) (holding that an allegation that prior PCR counsel was ineffective is not per se a sufficient reason allowing for a successive PCR application).
[6] Although decided prior to Flores-Ortega, the Weathers analysis is compatible with the Flores-Ortega analysis and remains good law.
