Abney v. State

• Decision Date: 24 April 2014
• Docket Number: Appellate Case No. 2010–164906.,No. 5207.,5207.
• Citation: 757 S.E.2d 544,408 S.C. 41
• Court: South Carolina Court of Appeals
• Parties: Ted E. ABNEY, Petitioner, v. STATE of South Carolina, Respondent.

408 S.C. 41

757 S.E.2d 544

Ted E. ABNEY, Petitioner,

v.STATE of South Carolina, Respondent.

Appellate Case No. 2010–164906.

No. 5207.

Court of Appeals of South Carolina.

Heard Nov. 13, 2013.

Decided March 19, 2014.

Rehearing Denied April 24, 2014.

Appellate Defender Kathrine H. Hudgins, 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, J. Rutledge Johnson, all of Columbia, for Respondent.

KONDUROS, J.

In this post-conviction relief (PCR) action, Ted E. Abney claims his trial counsel's assistance was rendered ineffective when counsel did not request a jury instruction on the lesser included offense of strong arm robbery. He further contends he was prejudiced by his attorney's decision because he was convicted of armed robbery. We affirm.

FACTS/PROCEDURAL HISTORY

the victim testified that on October 30, 2004, she parked outside the Citgo Station in Prosperity, South Carolina. She went into the store, purchased items, and returned to her car. She put her purchases on the passenger seat and walked around to the driver's side. As she opened the driver's side door, Abney came up behind her and leaned over her so that she could not get away. He pushed something into her ribs and told her “don't move, don't say nothing or I will kill you.” She testified at trial she believed he had a gun. He then took her purse and drove away in a white van. Abney turned himself in to the Newberry police a few days after the incident. He admitted taking the purse but insisted he never had a weapon. No weapon was ever recovered.

Abney was charged with armed robbery and possession of a firearm or knife during the commission of a violent crime charge. during his trial, the court granted Abney's motion for directed verdict on the possession of a firearm or knife during the commission of a violent crime charge. The armed robbery charge went to the jury. Neither Abney nor the State asked for a jury charge on the lesser included offense of strong arm robbery. Abney was found guilty of armed robbery and sentenced to twenty-six years' imprisonment. He appealed his sentence to this court, which dismissed the appeal.¹ On March 12, 2009, he filed an application for PCR. On May 24, 2010, the PCR court issued an order denying relief and dismissing the application. Abney then filed a petition for writ of certiorari. This court granted the petition. This appeal followed.

STANDARD OF REVIEW

“In reviewing the PCR judge's decision, an appellate court is concerned only with whether any evidence of probative value exists to support that decision.” Holden v. State, 393 S.C. 565, 573, 713 S.E.2d 611, 615 (2011). A petitioner for PCR bears the burden of establishing he is entitled to relief. Goins v. State, 397 S.C. 568, 573, 726 S.E.2d 1, 3 (2012). An appellate court “will uphold the findings of the PCR court when there is any evidence of probative value to support them, and will reverse the decision of the PCR court when it is controlled by an error of law.” Id. Appellate courts give great deference to PCR courts' findings of fact and conclusions of law. Holden, 393 S.C. at 573, 713 S.E.2d at 615.

LAW/ANALYSIS

Abney argues trial counsel was ineffective because he did not request a jury instruction on the lesser included offense of strong arm robbery. He believes this decision fell below an objectively reasonable standard. He asserts he was prejudiced by this decision because he would have been convicted of strong arm robbery instead of armed robbery if the jury received the instruction. We disagree.

The South Carolina Code defines armed robbery as the commission of a:

robbery while armed with a pistol, dirk, slingshot, metal knuckles, razor, or other deadly weapon, or while alleging, either by action or words, he was armed while using a representation of a deadly weapon or any object which a person present during the commission of the robbery reasonably believed to be a deadly weapon.

S.C.Code Ann. § 16–11–330 (2003) (emphasis added). Strong arm robbery is defined under common law “as the felonious or unlawful taking of money, goods, or other personal property of any value from the person of another or in his presence by violence or by putting such person in fear.” State v. Rosemond, 356 S.C. 426, 430, 589 S.E.2d 757, 758 (2003).

The trial court is required to charge a jury on a lesser included offense “if there is any evidence from which it could be inferred the lesser, rather than the greater, offense was committed.” State v. Gourdine, 322 S.C. 396, 398, 472 S.E.2d 241, 241 (1996). However, the trial court should refuse to charge on a lesser included offense when there is no evidence that the defendant committed the lesser rather than the greater offense. State v. Smith, 315 S.C. 547, 549, 446 S.E.2d 411, 413 (1994).

“In order to establish a claim of ineffective assistance of counsel, a PCR applicant must prove: (1) that counsel failed to render reasonably effective assistance under prevailing professional norms; and (2) that the deficient performance prejudiced the applicant's case.” Porter v. State, 368 S.C. 378, 383, 629 S.E.2d 353, 356 (2006). Under the second prong, the PCR applicant “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial.” Simmons v. State, 331 S.C. 333, 338, 503 S.E.2d 164, 166 (1998). “[T]he court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690, 104 S.Ct. 2052.

Counsel must articulate a valid reason for employing a certain strategy to avoid a finding of ineffectiveness. Roseboro v. State, 317 S.C. 292, 294, 454 S.E.2d 312, 313 (1995). When counsel articulates a strategy, it is measured under an objective standard of reasonableness. Ingle v. State, 348 S.C. 467, 470, 560 S.E.2d 401, 402 (2002). “[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Strickland, 466 U.S. at 691, 104 S.Ct. 2052.

South Carolina has not considered the specific situation presented by this case. However, other states have determined whether failing to ask for a jury charge on a lesser included offense is a valid trial strategy. Alabama, Georgia, and Utah all found refusing to ask for a charge on a lesser included offense could be a reasonable trial strategy. See Harbin v. State, 14 So.3d 898, 909 (Ala.Crim.App.2008), Ojemuyiwa v. State, 285 Ga.App. 617, 647 S.E.2d 598, 605 (2007); Havard v. State, 928 So.2d 771, 791 (Miss.2006). The Supreme Court of Mississippi stated that “[t]rial counsel's decision not to submit lesser offense instructions, while it turned out to be unsuccessful, was appropriate trial strategy, and thus beyond the realm of serious consideration on a claim of ineffective assistance of counsel.” Havard, 928 So.2d at 791.

We find evidence supported the PCR court's decision. Abney does not prove trial counsel failed to meet an objectively reasonable standard. Trial counsel was able to articulate a valid reason for employing his strategy. He testified that during a break in the trial, he and Abney felt they were winning the case and he would be found not guilty of armed robbery.² Therefore, the trial counsel did not feel it was in his client's best interests to ask for a jury instruction on strong arm robbery.

We, therefore, do not reach whether Abney was prejudiced by his trial counsel's actions.

CONCLUSION

Because the record contains evidence supporting the PCR court's finding and Abney failed to meet his burden of proof, the PCR court's decision is

AFFIRMED.

PIEPER, J., concurring.

I concur with the majority opinion that the evidence supports the PCR court's determination Abney did not prove trial counsel rendered ineffective assistance by failing to request a jury instruction on the lesser included offense of strong arm robbery. I write separately to further discuss the decision-making authority between a criminal defendant and his lawyer.

Certain decisions are considered fundamental and personal to a criminal defendant, and thus, are waivable only by the defendant. United States v. Teague, 953 F.2d 1525, 1531 (11th Cir.1992). For example, a defendant has the ultimate authority to decide “whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal.” Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). Conversely, decisions primarily involving trial strategy and tactics may be made by trial counsel. Sexton v. French, 163 F.3d 874, 885 (4th Cir.1998). Examples of such decisions include “which jurors to accept or strike, which witnesses should be called on the defendant's behalf, what evidence should be introduced, whether to object to the admission of evidence, [and] whether and how a witness should be cross-examined.” People v. Hambrick, 96 A.D.3d 972, 973, 947 N.Y.S.2d 139 (N.Y.App.Div.2012). What motions to file and “whether to put on evidence so as to preserve the final word in closing argument” are also strategic and tactical decisions to be made by trial counsel. Wright v. State, 322 Ga.App. 622, 745 S.E.2d 866, 868 (2013).

The 1980 American Bar Association's (ABA) Standards for Criminal Practice commentary provided the decision to ask for a lesser included offense was a right reserved for the defendant, explaining:

[It is]...