Mar 18, 2012 | Drug Crimes and Controlled Substances 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
Donald D. Berry, Petitioner,
v.
State of South Carolina, Respondent.
ON WRIT OF CERTIORARI
Appeal From Cherokee County
Doyet A. Early, III, Post-Conviction Relief Judge
Opinion No. 26618
Submitted November 19, 2008 – Filed March 23, 2009
REVERSED AND REMANDED
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 S. Prentiss Counts, all of Columbia, for Respondent.
JUSTICE KITTREDGE: We granted a writ of certiorari to review the denial of Donald D. Berry’s application for post-conviction relief (PCR). Berry pled guilty to a drug charge, second offense, and was sentenced to prison. The prior offense for enhancement purposes was a drug paraphernalia conviction. Because a drug paraphernalia conviction does not qualify as a prior offense for enhancement purposes under South Carolina’s statutory scheme and plea counsel neither informed Berry of this fact nor made an objection in the plea court, we reverse the denial of PCR, vacate the guilty plea, and remand to the general sessions court.
I.
Berry pled guilty to manufacturing methamphetamine, second offense, and was sentenced to seven years’ imprisonment. The plea was enhanced to a second offense by Berry’s prior conviction for possession of drug paraphernalia. As part of the plea agreement, an accompanying possession with intent to distribute methamphetamine charge was dismissed. The PCR court found Berry did not establish his entitlement to relief and denied his application. Berry sought a writ of certiorari, which we granted.
Section 44-53-470 of the South Carolina Code (Supp. 2007) states, “[a]n offense is considered a second or subsequent offense if . . . the offender has been convicted within the previous ten years of a violation of a provision of this article or of another state or federal statute relating to narcotic drugs, marijuana, depressants, stimulants, or hallucinogenic drugs . . . .” Additionally, section 44-53-375(B)(2) of the South Carolina Code (Supp. 2007) provides the following requirements for an enhanced offense:
[F]or a second offense or if, in the case of a first conviction of a violation of this section, the offender has been convicted of any of the laws of the United States or of any state, territory, or district relating to narcotic drugs, marijuana, depressant, stimulant, or hallucinogenic drugs, the offender must be imprisoned for not less than five years nor more than thirty years, or fined not more than fifty thousand dollars, or both.
II.
Whether a drug paraphernalia conviction qualifies as a prior offense for enhancement purposes has not been decided by this Court. The question is one of statutory construction. See State v. Dingle, 376 S.C. 643, 649, 659 S.E.2d 101, 105 (2008) (“In interpreting statutes, the Court looks to the plain meaning of the statute and the intent of the Legislature.”). Moreover, in construing a criminal statute, we are guided by the rule of lenity—the principle that any ambiguity must be resolved in favor of the accused. State v. Blackmon, 304 S.C. 270, 273, 403 S.E.2d 660, 662 (1991) (“[W]hen a statute is penal in nature, it must be construed strictly against the State and in favor of the defendant.”). We hold that the Legislature intended a prior offense to qualify for enhancement purposes only if the prior offense “relates to” one of the statutorily enumerated drugs.
To construe a paraphernalia conviction as “relating to” drugs would be contrary to unambiguously expressed legislative intent and additionally violate the rule of lenity long established in our jurisprudence. Moreover, were we to construe the phrase “relate to” so loosely as to include a paraphernalia conviction, there would essentially be no limitation for qualifying enhancement offenses. We therefore hold that a conviction for possession of drug paraphernalia may not be used for enhancement purposes as it does not “relate to” drugs as statutorily mandated.
III.
Ineffective Assistance of Counsel
We now turn to Berry’s PCR claim of ineffective assistance of counsel. To establish a claim of ineffective assistance of counsel under the Sixth Amendment, a PCR applicant must prove deficient representation and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984).
Where a defendant pleads guilty upon the advice of counsel, post-conviction relief is available only when the applicant proves the advice he received from counsel “fell below an objective standard of reasonableness” and that “but for” counsel’s deficient representation, he would not have pled guilty. Hill v. Lockhart, 474 U.S. 52, 56-59 (1985). Plea counsel for Berry acknowledges he neither challenged the State’s reliance on the paraphernalia conviction for enhancement purposes, nor informed Berry of the potential challenge.
A. Deficient Representation
We find plea counsel’s failure to inform Berry of the potential challenge of the use of the paraphernalia conviction for enhancement purposes amounts to deficient representation. Strickland v. Washington, 466 U.S. at 687. In so ruling, we recognize that a defendant, for a host of legitimate reasons, may plead guilty to an offense for which a valid legal challenge may exist. See Rollison v. State, 346 S.C. 506, 510, 552 S.E.2d 290, 292 (2001) (“A defendant may, as part of a plea bargain, agree to plead guilty to a crime for which he has been indicted (or to which he has waived grand jury presentment), but of which he is not guilty.”); Anderson v. State, 342 S.C. 54, 58, 535 S.E.2d 649, 651 (2000) (“We find the decision to accept a plea to voluntary manslaughter notwithstanding the lack of any provocation was simply a tactical maneuver to avoid the very real possibility that the jury might come back with a verdict of murder. Accordingly, we find the plea was knowingly and voluntarily entered.”). The difference in such circumstances between a valid guilty plea and an invalid guilty plea lies in the knowing and voluntary nature of the plea. Here, counsel never informed Berry of the potential challenge to the use of the drug paraphernalia conviction for enhancement. In fact, Berry’s plea counsel never gave any thought to the issue.
We believe the Sixth Amendment guarantee of effective assistance of counsel requires that counsel accurately inform a defendant, to the extent possible, of the qualifying nature of a prior offense for enhancement purposes. It may well be that in situations unlike the one before us, the answer is unclear. Yet, an accused is entitled to counsel’s considered and reasonable judgment.[1] In fact, uncertainty concerning a potential legal challenge may well provide a defendant a catalyst in plea negotiations with the State. In this regard, a defendant may choose to forgo a legal challenge and opt for what he considers a favorable plea arrangement, especially where other charges will be dismissed or sentences are run concurrently.
This “give and take” lies at the heart of virtually every guilty plea, as plea agreements allow our overly burdened criminal courts to function. The point, for purposes of the issue before us, is that such decisions must be made knowingly and voluntarily with the advice of constitutionally competent counsel. Simply saying “I never gave it a thought” falls short of the Sixth Amendment guarantee of effective assistance of counsel. As a result, we find counsel’s failure to even consider whether a paraphernalia conviction qualifies for enhancement, and so inform Berry, fell below the standard of objective reasonableness. We therefore find plea counsel provided constitutionally deficient representation.
B. Prejudice
We next turn to the second step in the analysis—whether Berry was prejudiced by the deficient representation. Strickland v. Washington, 466 U.S. at 687. As this was a guilty plea, Berry “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.” Hill, 474 U.S. at 59. During the PCR hearing, Berry repeatedly said that he would have gone to trial had he known that his paraphernalia conviction did not qualify as a prior offense for enhancement purposes. Cf. Robinson v. State, Op. No. 26564 (S.C.Sup.Ct. filed Nov. 24, 2008) (Shearouse Adv.Sh. No. 43 at 25) (granting post-conviction relief and remanding for resentencing where prior uncounseled conviction was improperly used for enhancement and applicant insisted that he wanted to plead guilty free of the “unconstitutional prior conviction[]”). We find Berry has established the prejudice prong of Strickland v. Washington, and we grant him the relief he requests.
IV.
We grant Berry post-conviction relief and return him to his pre-guilty plea position. Berry’s conviction and sentence for manufacturing methamphetamine are vacated. Because the accompanying indictment for possession with intent to distribute methamphetamine was dismissed as part of the plea bargain, it is restored as an active charge. We remand these charges to the general sessions court for disposition.
REVERSED AND REMANDED.
TOAL, C.J., WALLER, and BEATTY, JJ., concur. PLEICONES, J., not participating.
[1] While the case at hand concerns use of prior convictions for enhancement purposes, this reference to an accused’s entitlement to counsel’s considered and reasonable judgment clearly has broad application in Sixth Amendment jurisprudence.
Mar 15, 2012 | Drug Crimes and Controlled Substances Defense, Uncategorized
This SC Supreme Court case discusses when and under what circumstances police may search the interior of a car incident to a lawful stop. As the decision points out, suppressing evidence found during such a search can prove critical to an acquittal or prison term. Here, the search was deemed illegal, but the lawyer’s failure to file a timely appeal rendered the violation of his Fourth Amendment rights moot. The client received a sentence of 25 years. In criminal defense cases, it is necessary to challenge every aspect of a stop, search, and arrest at trial. Search issues can be very complicated and case specific. Better make sure your criminal defense attorney understands the rules and is willing to fight for your rights in court. There is too much at stake to risk an inexperienced or timid 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
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 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.
Mar 11, 2012 | Criminal Defense, Uncategorized
This SC Supreme Court decision illustrates how timely objections at trial can prove critical to the outcome of a case. Here, the prosecutor, obviously overcome with personal emotion in a child sexual abuse case, crossed a proverbial line and basically asked the jury to “speak for the victim.” While such feelings are natural given the horrific nature of this crime and particular facts involved here, the prosecutor has a duty to remain professional and take steps to make sure every criminal defendant receives a fair trial. It is also the duty and obligation of the criminal defesne attorney to zealously defend his client, regardless of any personal feelings he may have about the case or the defendant. Better make sure your attorney has the professional discipline to aggressively defend your case, especially if the crime is emotionally charged. No matter what the crime, it is your lawyer’s job to do everything possible to get you a fair trial and afford you due process.
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 for a private consultation. www.rjrlaw.com
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Brandon Leandre Brown, Respondent,
v.
State of South Carolina, Petitioner.
ON WRIT OF CERTIORARI
Appeal From Florence County
Michael Nettles, Circuit Court Judge
Opinion No. 26691
Submitted June 24, 2009 – Filed July 27, 2009
REVERSED
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General Julie M. Thames, all of Columbia, for Petitioner.
Deputy Chief Appellate Defender Wanda H. Carter, of South Carolina Commission on Indigent Defense, of Columbia, for Respondent.
JUSTICE BEATTY: In this post-conviction relief (PCR) case, this Court granted the State’s petition for a writ of certiorari to review the PCR judge’s order granting Brandon Leandre Brown a new trial for his convictions of first-degree, criminal sexual conduct with a minor (CSC) and transmitting a sexual disease. The State contends the PCR judge erred in finding Brown’s trial counsel was ineffective for failing to object to certain comments made by the solicitor during his closing argument. We reverse.
FACTUAL/PROCEDURAL HISTORY
At trial, four witnesses, all of whom either lived across the street or were visiting across the street from Brown’s residence on August 4, 2001, testified they observed Brown in his three-year-old stepdaughter’s bedroom on top of the child moving his body in a manner that indicated sexual activity. One of the witnesses testified that “[Brown was] humping up and down on her.” The witnesses testified they were able to see the incident through the child’s bedroom window because the blinds were wide open, the light was on in the bedroom, and it was dark outside at 11:30 p.m. One witness, upon his initial observation, retrieved a pair of binoculars to confirm what he thought he had seen. Based on their observations, the witnesses became upset, called the police, and then went to Brown’s residence to assist the child and to confront Brown. All four witnesses testified that when Brown answered the door, he had an erection.
Shortly after the incident, officers with the Timmonsville Police Department responded to Brown’s residence. After interviewing the witnesses for approximately two hours, the officers took Brown to the police station where he gave two audio-taped statements. These statements were admitted at trial. In these statements, Brown denied that he intended to sexually assault his stepdaughter; however, he admitted that he became aroused while wrestling with her and that he may have accidentally penetrated her. In his first statement, Brown explained that he just got too close to the child and that his penis “might have hit her a couple of times.” In his second statement, Brown stated that it was possible that penetration occurred but that he did not intend to penetrate her. Toward the end of the interview, Brown stated “I came . . . into her a couple of times but not intentionally.” When questioned at trial about the incident, Brown testified that he was tickling and wrestling with the child but denied that he penetrated her.
Rhonda Turner, Brown’s ex-wife and the mother of the child, testified that during the time leading up to the incident and the day of the incident, Brown was unemployed and had access to her daughter during the daytime. In describing her relationship with Brown, she stated that they were married for approximately a year and had a son, who was born on July 4, 2001. Rhonda admitted that she contracted gonorrhea from Brown. She testified that she learned of the STD when her physician’s office called her and instructed her to report to the office on the Monday following the August 4, 2001 incident between Brown and her daughter. During that phone call, Rhonda was informed that she had tested positive for gonorrhea and needed to be seen by her doctor. Rhonda delayed this visit for one day because she took her daughter to be medically evaluated on the Monday following the incident. As a result of this evaluation, the child was given a shot for gonorrhea.
When questioned about the incident between Brown and her daughter, Rhonda testified that she spoke with Brown about it at the Timmonsville Police Department. During this conversation, Brown said, “Well, I mean, I may have, you know, been playing with her; and my penis may have fallen out of my boxers; and I may have gotten erected; and her panties may have gone to the side.” Rhonda, however, testified that when she spoke with Brown again during a telephone conversation he said “he didn’t do it.”
As part of its case, the State presented Kathy Saunders as an expert witness in “child sexual assault” and “child sexual abuse.” Saunders testified that she examined the child two days after the incident because she was out-of-town and unable to evaluate the child when she was taken to the emergency room immediately after the incident with Brown. As a result of her examination, Saunders discovered “copious” amounts of green discharge coming from the child’s vaginal opening. Saunders characterized this finding as a “classic” symptom of gonorrhea. Although there was no evidence of an acute injury causing vaginal tearing or bleeding, Saunders noted in her examination that there was redness around the child’s labia and surrounding tissue. Specifically, Saunders testified “[t]here was some mild redness, with what appeared to be resolution of labial lesions or just some type of contact dermatitis.” She further stated the tissue in the surrounding area “appeared kind of red, very thickened or swollen.” Saunders indicated that these physical findings could be consistent with “someone penetrating the [child’s] labia.” In addition to her physical examination, Saunders testified the child’s mother told her that the child had recently been wetting the bed, complained of stomach aches and nightmares, and had vaginal discharge. Saunders believed these symptoms could be indicative of sexual abuse.
In addition to Brown’s testimony and the testimony of several character witnesses, the defense presented evidence attempting to refute that Brown could have transmitted gonorrhea to the child during the August 4, 2001 incident. Specifically, the defense presented medical records which indicated that Brown had been treated for gonorrhea on May 23, 2001, and July 26, 2001.
In support of its theory, the defense also offered the testimony of Dr. Elizabeth Lynn Harvey Baker-Gibbs, an expert witness on the “diagnosis and treatment of sexual abuse.” Dr. Baker-Gibbs testified regarding the type and effectiveness of the medication prescribed for the treatment of gonorrhea. When presented with the facts of the instant case, she opined that if Brown had properly taken his prescribed medication on July 26, 2001, he would not have been contagious after July 29, 2001. Based on these facts, she ultimately concluded that Brown would not have been contagious on August 4, 2001, the date of the incident.
Following motions from counsel, the trial concluded with closing arguments. At end of his closing argument, the solicitor stated:
I embrace my burden because I represent the State of South Carolina. And I think someone said at the beginning of this trial this is trying to protect the rights of people. Well, I tell you what. I’m here to protect the innocent. I’m here to protect [child victim] a four-year-old child now. Three-year-old little child at that time. And I am the last person that you’re going to hear speak up for her.
So, I ask you, when you go back in that jury room, you speak up for [child victim]. We can never put her back to where she was before this abuse occurred. But we can make sure that the perpetrator is punished. So when you go back in that jury room to deliberate, ladies and gentlemen, speak up for [child victim].
Brown’s trial counsel did not object to these remarks. The jury convicted Brown of first-degree criminal sexual conduct with a minor and transmitting a sexual disease. Subsequently, the trial judge sentenced Brown to twenty-five years imprisonment for the CSC charge and a concurrent term of thirty days imprisonment for the transmission of a sexual disease charge.
Brown appealed his convictions and sentences to the Court of Appeals. In an unpublished opinion, the Court of Appeals affirmed Brown’s convictions and sentences. State v. Brown, Op. No. 2004-UP-358 (S.C. Ct. App. filed June 4, 2004).
Following the decision of the Court of Appeals, Brown filed a timely PCR application. Once represented by counsel, Brown filed an amended PCR application. In these applications, Brown alleged his trial counsel was ineffective in several respects, including counsel’s failure to object to the remarks made by the solicitor in his closing argument.
At the PCR hearing, Brown’s counsel asserted the solicitor’s comments “to speak up for the victim” amounted to a “Golden Rule” type argument that has been deemed improper by our state appellate courts. Additionally, PCR counsel contended the improper argument was prejudicial because it appealed to the passion and prejudice of the jury by asking the jury to be an advocate for the child victim.
Brown’s trial counsel, the only witness called to testify, admitted that an objection should have been made to the solicitor’s comments. However, he stated the reason “those statements were not objected to was because I didn’t want to exacerbate a bad set of facts to point out to the jury something that would already aggravate what appeared to be a pretty bad case.” Trial counsel also pointed out the “gravity of the evidence” the State presented against Brown. He further noted he did not want to give the jury a reason to dislike or hate his client.
In an oral ruling, the PCR judge informed counsel that he was granting Brown relief in the form of a new trial solely on the ground that trial counsel was ineffective in failing to object to the remarks made by the solicitor during closing argument.
In a detailed written order, the PCR judge explained that trial counsel’s failure to object to the solicitor’s closing argument was “clearly error.” The judge further found that “[t]here is a reasonable probability, based upon the evidence before this Court, that failure to object to this inappropriate argument undermined the confidence in the outcome in this trial.”
In terms of the evidence, the judge concluded that there was not overwhelming evidence of guilt given it “consisted of very questionable eyewitness testimony, [Brown’s] two statements, and the fact that at some point, although not at the time of the incident, [Brown] had gonorrhea.” The judge characterized the eyewitness testimony as “questionable” in light of defense counsel’s contention at trial that due to the position of the child’s bedroom window “there was no possible way the witnesses could have seen what they claimed to have seen.” Additionally, the judge referenced the State’s expert witness testimony that the child could not have tested positive for gonorrhea the day after the incident and the testimony that Brown could not have been contagious on the date of the incident. The judge further noted that Brown denied sexually assaulting the child and that there was no evidence of “tearing or obvious injury to the child’s vagina.”
The judge also rejected the State’s contention that the solicitor’s comments were so limited that they could not have affected the trial. Specifically, the judge stated that “[g]iven the seriousness of the offense and the emotions involved, these comments were more than enough to place the jury in a position of being asked to stand up for, help, protect, and advocate for a very small child.” The judge believed that “[i]t is clear that the Solicitor’s statements encouraged the jury to depart from neutrality and decide the case based on passion and bias rather than the evidence, which led to the jury’s verdict being undermined.” Ultimately, the PCR judge found trial counsel was ineffective and, as a result, granted Brown a new trial as to both of his convictions.
The State petitioned for and was granted a writ of certiorari for this Court to review the PCR judge’s order.
STANDARD OF REVIEW
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.” Tate v. State, 351 S.C. 418, 425, 570 S.E.2d 522, 526 (2002).
In a PCR proceeding, the applicant bears the burden of establishing that he is entitled to relief. Butler v. State, 286 S.C. 441, 334 S.E.2d 813 (1985). In order to prove that counsel was ineffective, the PCR applicant must show that: (1) counsel’s performance was deficient; and (2) there is a reasonable probability that, but for counsel’s errors, the result of the trial would have been different. Caprood v. State, 338 S.C. 103, 109, 525 S.E.2d 514, 517 (2000) (citing Strickland v. Washington, 466 U.S. 668 (1984)). “A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial.” Ard v. Catoe, 372 S.C. 318, 331, 642 S.E.2d 590, 596 (2007). “Furthermore, when a defendant’s conviction is challenged, ‘the question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt.’” Id. (quotingStrickland v. Washington, 466 U.S. 668, 695 (1984)).
This Court will uphold the findings of the PCR court if there is any evidence of probative value to support them. Cherry v. State, 300 S.C. 115, 119, 386 S.E.2d 624, 626 (1989). However, if no probative evidence supports these findings, the Court will not uphold the findings of the PCR court. Jackson v. State, 355 S.C. 568, 570, 586 S.E.2d 562, 563 (2003). “The decision of the PCR judge may be reversed when it is controlled by an error of law.” Hiott v. State, 381 S.C. 622, 625, 674 S.E.2d 491, 492 (2009).
DISCUSSION
The State contends the PCR judge erred in granting Brown a new trial on the ground that his trial counsel was ineffective in failing to object to certain portions of the solicitor’s closing argument. Initially, the State asserts that counsel was not ineffective given he “articulated a valid reason for not objecting when he stated he was worried about the jury hating his client.” In support of this assertion, the State points to the testimony of trial counsel that “there was a lot of evidence against [Brown] and that he did not wish to aggravate an already bad situation.” The State also references trial counsel’s testimony that the solicitor’s comments were limited in that they were made “quickly.” Even if trial counsel’s performance was deficient in that there was no objection to the solicitor’s comments, the State claims that Brown was not prejudiced in view of the overwhelming evidence of guilt presented at trial.
“A solicitor’s closing argument must be carefully tailored so as not to appeal to the personal biases of the jury.” Von Dohlen v. State, 360 S.C. 598, 609, 602 S.E.2d 738, 744 (2004). “The argument must not be calculated to arouse the jurors’ passions or prejudices, and its content should stay within the record and reasonable inferences that may be drawn therefrom.” Id. at 609-10, 602 S.E.2d at 744.
“‘While the solicitor should prosecute vigorously, his duty is not to convict a defendant but to see justice done.’” State v. Northcutt, 372 S.C. 207, 222, 641 S.E.2d 873, 881 (2007) (quoting State v. Linder, 276 S.C. 304, 312, 278 S.E.2d 335, 339 (1981)). “‘The solicitor’s closing argument must, of course, be based on this principle.’” Id. “A Golden Rule argument asking the jurors to place themselves in the victim’s shoes tends to completely destroy all sense of impartiality of the jurors, and its effect is to arouse passion and prejudice.” State v. Reese, 370 S.C. 31, 38, 633 S.E.2d 898, 901 (2006).
“On appeal, the appellate court will view the alleged impropriety of the solicitor’s argument in the context of the entire record, including whether the trial judge’s instructions adequately cured the improper argument and whether there is overwhelming evidence of the defendant’s guilt.” Simmons v. State, 331 S.C. 333, 338, 503 S.E.2d 164, 166 (1998). “Improper comments do not automatically require reversal if they are not prejudicial to the defendant, and the appellant has the burden of proving he did not receive a fair trial because of the alleged improper argument.” Humphries v. State, 351 S.C. 362, 373, 570 S.E.2d 160, 166 (2002). “The relevant question is whether the solicitor’s comments so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Id.; see State v. Hornsby, 326 S.C. 121, 129, 484 S.E.2d 869, 873 (1997) (“A denial of due process occurs when a defendant in a criminal trial is denied the fundamental fairness essential to the concept of justice.”).
Turning to the facts of the instant case, we find the PCR judge correctly concluded the solicitor’s remarks were improper in that they amounted to an impermissible “Golden Rule” type argument. See State v. Reese, 359 S.C. 260, 271, 597 S.E.2d 169, 175 (Ct. App. 2004) (recognizing that a “Golden Rule” argument which suggests to jurors to put themselves in the shoes of one of the parties is generally impermissible because it encourages the jurors to depart from neutrality and to decide the case on the basis of personal interest and bias rather than evidence), aff’d in part and rev’d in part, 370 S.C. 31, 633 S.E.2d 898 (2006) (affirming the Court of Appeals’ finding that the defendant was entitled to a new trial based on the solicitor’s “Golden Rule” closing argument in which he repeatedly asked jurors to “speak” for the murdered victim).
Here, it is indisputable that the case was “emotionally charged” given it involved sexual misconduct with a three-year-old child. Thus, the solicitor’s remarks imploring the jurors to “speak for” the victim undeniably asked the jurors to set aside their impartiality and, instead, consider the evidence from the subjective position of the child victim.
In view of this improper argument, we agree with the PCR judge that it was incumbent upon Brown’s trial counsel to object to the solicitor’s closing remarks. Furthermore, although we do not believe trial counsel was disingenuous in articulating a trial strategy to explain his failure to object to these comments, we find this “strategy” cannot be construed as a valid one given the evident impropriety of the solicitor’s remarks. Cf. Stokes v. State, 308 S.C. 546, 548, 419 S.E.2d 778, 779 (1992) (“Where . . . counsel articulates a valid reason for employing certain strategy, such conduct will not be deemed ineffective assistance of counsel.”);Whitehead v. State, 308 S.C. 119, 122, 417 S.E.2d 529, 531 (1992) (recognizing that “[c]ourts must be wary of second-guessing counsel’s trial tactics; and where counsel articulates a valid reason for employing certain strategy, such conduct will not be deemed ineffective assistance of counsel”).
Based on the foregoing, we hold trial counsel was deficient in failing to object to the challenged portion of the solicitor’s closing argument because it constituted a “Golden Rule” argument which impermissibly appealed to the passion of the jurors by asking them to “speak up” for the child victim. However, we find Brown did not satisfy his requisite burden of proving that there was a reasonable probability that but for counsel’s deficient performance the result of his trial would have been different.
First, the solicitor’s comments came at the very end of his closing argument and were limited in duration. Thus, we find the solicitor’s comments did not so infect the trial with unfairness as to make the resulting conviction a denial of due process. SeeSmith v. State, 375 S.C. 507, 654 S.E.2d 523 (2007) (concluding any impropriety in the solicitor’s closing argument was not sufficient to grant defendant post-conviction relief where solicitor’s improper use of the pronoun “I” was limited, did not recur throughout his argument, there was overwhelming evidence of the defendant’s guilt, and the trial judge instructed the jury not to consider counsel’s statements as evidence); see also Von Dohlen, 360 S.C. at 613-14, 602 S.E.2d at 746 (holding trial counsel, during the penalty phase of a capital case, was deficient in failing to object to solicitor’s comment for the jurors to put themselves in the victim’s shoes, but finding such deficient performance was not prejudicial); cf. State v. McDaniel, 320 S.C. 33, 462 S.E.2d 882 (Ct. App. 1995) (finding solicitor’s use of “you” forty-five times during closing argument asking the jurors to put themselves in the place of the victim constituted reversible error and warranted a new trial).
Secondly, there was overwhelming evidence of Brown’s guilt. The State presented four eyewitnesses who testified to seeing Brown commit the sexual misconduct against the child. Each of the witnesses testified they could see into the child’s bedroom window because the blinds were wide open, it was dark outside, and there was a light on in the bedroom. They further explained that they were able to see more clearly when they approached the window to confront Brown by banging on the bedroom window. Additionally, each witness testified that when Brown opened the door, he had an erection.
Although Brown’s defense counsel attempted to establish that the witnesses’ testimony differed from their written statements regarding certain details, the witnesses were adamant that they could clearly see through the child’s bedroom window. They also explained that they wrote their statements for the police immediately after witnessing the incident while sitting in the dark on top of the police cars.
The State also presented the two audio-taped statements given by Brown in which he admitted to “accidental” or “possible” penetration of the child. Brown’s ex-wife also testified that when she spoke with Brown at the police station he admitted that he had been playing with the child and said, “my penis may have fallen out of my boxers; and I may have gotten erected; and her panties may have gone to the side.”
Additionally, the State’s expert witness testified that the child exhibited physical and psychological symptoms which were indicative of sexual abuse. This expert witness also confirmed that the child had been diagnosed with gonorrhea. Although the defense presented evidence that Brown may not have been contagious on the day of the incident, there was testimony that prior to the incident he was diagnosed with gonorrhea and had access to the child alone during the day.
Finally, the jury only deliberated for thirty-eight minutes before finding Brown guilty of both charges. Notably, the trial judge also recognized that the evidence of guilt was overwhelming when he stated during sentencing:
I want to say to you also that the evidence in this case, sir, was overwhelming, including four eyewitnesses, which is very unusual for a crime which generally occurs in secret; your obvious and your unnatural state of arousal when you went to the door or when you were confronted about this; the transmission of gonorrhea to a child victim; and your own admissions that are contained in your own statements, sir. All of these are overwhelming evidence in the view of this court.
Based on the foregoing, we hold that any impropriety in the solicitor’s closing argument was not sufficient to warrant the PCR judge’s decision to grant a new trial.
CONCLUSION
Although we find the PCR judge correctly determined that trial counsel was deficient in failing to object to the solicitor’s “Golden Rule” closing argument, we hold Brown failed to prove that there was a reasonable probability that but for this error the result of his trial would have been different. Accordingly, the decision of the PCR judge is
REVERSED.
TOAL, C.J., WALLER, PLEICONES and KITTREDGE, JJ., concur.
