Bray v. State, No. 26045.

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: Per Curiam
• Citation: 620 S.E.2d 743
• Parties: Martin BRAY, Petitioner, v. STATE of South Carolina, Respondent.
• Docket Number: No. 26045.
• Decision Date: 26 September 2005

620 S.E.2d 743 Martin BRAY, Petitioner,
v.
STATE of South Carolina, Respondent. No. 26045. Supreme Court of South Carolina. Submitted September 7, 2005. Decided September 26, 2005.

Page 744

Assistant Appellate Defender Robert M. Pachak, of S.C. Office of Appellate Defense, of Columbia, for Petitioner.

Attorney General Henry D. McMaster, Chief Deputy Attorney General John W. McIntosh, and Assistant Deputy Attorney General Donald J. Zelenka, all of Columbia, for Respondent.

PER CURIAM:

Petitioner seeks a writ of certiorari from the denial of his third application for post-conviction relief (PCR). We grant the petition, dispense with further briefing, and affirm the order of the PCR judge.

The PCR judge found that petitioner did not knowingly and intelligently waive his right to appellate review of the denial of his first PCR application because his PCR counsel failed to advise him of the right to seek appellate review. However, the judge found that petitioner's third PCR action was barred by laches.

This Court has never specifically required counsel to advise a PCR applicant of the right to appellate review of the denial of PCR. In Sutton v. State, 361 S.C. 644, 606 S.E.2d 779 (2004), we held that neither trial nor appellate counsel are required to advise a client of the right to file a PCR application or the time limits for filing. However, in Austin v. State, 305 S.C. 453, 409 S.E.2d 395 (1991), this Court held that an applicant has a right to an appellate counsel's assistance in seeking review of the denial of PCR. Appellate counsel is required to brief arguable issues, despite counsel's belief the appeal is frivolous, to safeguard the right to appeal. Johnson v. State, 294 S.C. 310, 364 S.E.2d 201 (1988). Further, Rule 71.1(g), SCRCP, expressly provides that, if the applicant wishes to seek appellate review, PCR counsel must file a Notice of Appeal, continue representation until relieved, and assist an indigent applicant in obtaining representation by the Office of Appellate Defense.

Page 745

We now hold that counsel is required to advise an applicant of the right to appellate review of the denial of PCR. Accordingly, the PCR judge properly found that petitioner did not knowingly and intelligently waive his right to appellate review since counsel failed to advise him of the right. However, as discussed below, petitioner's application was properly dismissed.

Laches is "neglect for an unreasonable and unexplained length of time,...