Bell v. State
Decision Date | 05 November 2014 |
Docket Number | No. 5277.,5277. |
Citation | 765 S.E.2d 4,410 S.C. 436 |
Court | South Carolina Court of Appeals |
Parties | Chico BELL, Respondent, v. STATE of South Carolina, Petitioner. Appellate Case No. 2011–201106. |
Attorney General Alan McCrory Wilson, Senior Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Megan E. Harrigan, all of Columbia, for Petitioner.
Appellate Defender Susan Barber Hackett, of Columbia, for Respondent.
In this post-conviction relief (PCR) action, we affirm the PCR court's order granting Chico Bell's application for relief.
Following a Richland County jury trial, Bell was convicted of armed robbery and sentenced to twenty years of imprisonment. Bell filed a direct appeal, which this court affirmed. See State v. Bell, Op. No.2009–UP–027, 2009 WL 9524574 (S.C. Ct.App. filed Jan. 13, 2009). Bell subsequently filed an application for PCR, which the PCR court granted. This court granted the State's petition for a writ of certiorari on the issue of whether the PCR court erred in finding trial counsel was ineffective for failing to communicate a ten-year plea offer to Bell.1 We affirm.
At the PCR hearing, Bell testified he first learned of the State's plea offer “during the sentencing part of the process[,]” and the plea offer was “something about ten years.” Bell stated no one with the public defender's office told him about the ten-year plea offer prior to the verdict. Bell testified he would have taken the plea offer if he had known about it. Additionally, Bell asserted if the State offered him the ten-year deal again, he would take it.
Trial counsel testified nothing in the file indicated the offer was extended to Bell. Trial counsel stated that when she first met with Bell, she did not have the file with her. Trial counsel explained that during her last meeting with Bell, they discussed the evidence, and her notes indicated Bell did not want to plead guilty. The State conceded an offer was never extended to Bell, but the State contends an offer never existed.
In its written order, the PCR court found Bell proved trial counsel was ineffective by failing to communicate the plea offer to him before the jury's verdict. First, the PCR court found “a plea offer was made by the State and that [c]ounsel failed to communicate the plea offer to [Bell].” Second, the PCR court found Bell's testimony that he would have accepted the plea offer had he known about it was credible. Third, the PCR court found the difference between the sentence Bell received, twenty years, and the plea offer, ten years, was proof of prejudice. Further, the PCR court found Bell established prejudice by his own testimony “and by the circumstances of the case.” Finally, the PCR court found “[t]here is a reasonable probability that, but for this error of [c]ounsel, the result to [Bell] would have been different.”
As a remedy, the PCR court found, “as did the Davie2 Court, ... that the appropriate remedy is to grant PCR and send the case back to ourt for [Bell] to be re-sentenced as if he had accepted the ten (10) year offer.” Accordingly, the PCR court vacated Bell's twenty-year sentence and remanded the matter for a resentencing hearing “on the plea offer of ten years.”3 The State filed a Rule 59(e), SCRCP, motion to alter or amend, which the PCR court denied. The State's petition for certiorari followed.
Did the PCR court err in finding trial counsel was ineffective for failing to communicate the plea offer to Bell?
Upon appellate review, this court gives great deference to the PCR court's findings of fact and conclusions of law. Dempsey v. State, 363 S.C. 365, 368, 610 S.E.2d 812, 814 (2005). This court also “gives great deference to a PCR [court's] findings where matters of credibility are involved.” Simuel v. State, 390 S.C. 267, 270, 701 S.E.2d 738, 739 (2010). “In reviewing the PCR court's decision, an appellate court is concerned only with whether any evidence of probative value exists to support that decision.” Davie, 381 S.C. at 608, 675 S.E.2d at 420. “This [c]ourt will uphold the findings of the PCR court when there is any evidence of probative value to support them, and [it] will reverse the decision of the PCR court when it is controlled by an error of law.” Id.
The State argues the PCR court erred in finding trial counsel was ineffective for failing to communicate the plea offer because Bell presented no evidence an enforceable plea offer existed. The State maintains the trial court did not appropriately consider the solicitor's comments disavowing the plea offer during the sentencing portion of the trial. Bell argues the State conceded the plea offer was never extended to him, and its only argument is with the credibility of the evidence that the plea offer ever existed.
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, 685–86, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Our supreme court has also held “a defendant has the right to effective assistance of counsel during the plea bargaining process.”
Davie, 381 S.C. at 607, 675 S.E.2d at 419. “[A]s a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.” Frye, 132 S.Ct. at 1408 ; see also Davie, 381 S.C. at 609, 675 S.E.2d at 420 (2009) ( ).
“In a PCR proceeding, the applicant bears the burden of establishing that he or she is entitled to relief.” Davie, 381 S.C. at 607, 675 S.E.2d at 419. “The [applicant] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.
Id. at 610–11, 675 S.E.2d at 421.
During sentencing, Bell's counsel stated, “I would like to point out that in this case he was offered to plead to the minimum of 10 years....” The solicitor responded, The solicitor also stated, “I just want to reiterate, I have never tendered a plea offer on this case.” Bell's trial counsel responded, “I disagree.” The trial judge stated, “We are not going to argue, it is my job to sentence.”
We acknowledge the State's argument that the solicitor's comments during the sentencing hearing were entitled to consideration. See Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977) (). However, we are mindful of our standard of review, and we find evidence to support the PCR court's decision that trial counsel was ineffective for failing to extend the plea offer. See D...
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