Austin v. State, No. 23256

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: PER CURIAM
• Citation: 305 S.C. 453,409 S.E.2d 395
• Parties: Joseph R. AUSTIN, Petitioner, v. STATE of South Carolina, Respondent.
• Docket Number: No. 23256
• Decision Date: 09 September 1991

Page 395

409 S.E.2d 395 305 S.C. 453 Joseph R. AUSTIN, Petitioner,
v.
STATE of South Carolina, Respondent. No. 23256. Supreme Court of South Carolina. Submitted May 17, 1988.
Decided Sept. 9, 1991.

Page 396

D. Mark Stokes, Asst. Appellate Defender, South Carolina Office of Appellate Defense, Columbia, for petitioner.

Atty. Gen., T. Travis Medlock, Chief Deputy Atty. Gen. Donald J. Zelenka, and Asst. Attys. Gen., Frank L. Valenta, Jr., and Miller W. Shealy, Jr., Columbia, for respondent.

PER CURIAM:

This case is before the Court on a Petition for Rehearing. Opinion number 23256, filed August 27, 1990, is withdrawn and the following Opinion is substituted as the Opinion of this [305 S.C. 454] Court. This case involves an appeal from the summary dismissal of petitioner's application for post-conviction relief (PCR). We reverse and remand for an evidentiary hearing.

Petitioner's original application for PCR was denied after a hearing. Petitioner subsequently filed this application alleging only that his PCR counsel was ineffective in failing to seek appellate review of the denial of PCR.

The right to seek appellate review of the denial of PCR is expressly authorized by state law. S.C.Code Ann. § 17-27-100 (1985); Supreme Court Rule 50(9). Whether such review is granted is discretionary with this Court. Knight v. State, 284 S.C. 138, 325 S.E.2d 535 (1985).

While we are aware the constitutional right to counsel does not extend to discretionary appeals on collateral attack, we have ruled that Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), shall continue to apply in PCR matters. Johnson v. State, 294 S.C. 310, 364 S.E.2d 201 (1988); compare Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). Anders requires appellate counsel to brief arguable issues, despite counsel's belief the appeal is frivolous, as a safeguard of the right to appeal. In applying Anders on PCR, we have recognized a prisoner's right to the assistance of appellate counsel in seeking review of the denial of PCR. Supreme Court Rule 50(6) expressly provides for the appointment of counsel to seek appellate review on PCR.

Because petitioner is entitled to the assistance of appellate counsel on PCR, and because we must craft a remedy to correct the unfairness which has occurred, we find his allegation that counsel failed to seek review in this case sufficiently states a claim of ineffective assistance. ¹ We therefore remand for...