Chubb v. State, 23339
Decision Date | 04 February 1991 |
Docket Number | No. 23339,23339 |
Citation | 401 S.E.2d 159,303 S.C. 395 |
Court | South Carolina Supreme Court |
Parties | Johnny CHUBB, Petitioner, v. STATE of South Carolina, Respondent. |
Assistant Appellate Defender, Robert M. Pachak, Tara Dawn Shurling and Robert M. Dudek, of S.C. Office of Appellate Defense, Columbia, for petitioner.
Attorney Gen. T. Travis Medlock, Chief Deputy Atty. Gen. Donald J. Zelenka and Staff Atty., Marshall Prince, Columbia, for respondent.
Petitioner was convicted of burglary and sentenced to life imprisonment in 1982. On direct appeal his conviction was affirmed pursuant to Supreme Court Rule 23. This appeal is from the subsequent denial of post-conviction relief (PCR). We reverse and remand for a new trial.
Petitioner was indicted for burglary under S.C.Code Ann. § 16-11-310 (1976) 1 which mandated life imprisonment unless the jury recommended mercy. After the trial judge submitted the case to the jury, trial counsel realized for the first time the trial would not be a bifurcated proceeding. Because of her erroneous expectation that a separate sentencing proceeding would be held, she failed to present evidence in mitigation or argue for mercy on petitioner's behalf. See State v. Bennett, 256 S.C. 234, 182 S.E.2d 291 (1971) ( ). The jury returned a verdict of guilty with no recommendation of mercy.
Petitioner sought PCR claiming he was prejudiced by counsel's deficient performance. The PCR judge found no prejudice and denied relief. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
A recommendation of mercy rests entirely in the discretion of the jury and may be exercised independently of whether the evidence warrants it. State v. Chasteen, 228 S.C. 88, 88 S.E.2d 880 (1955). In this case, the trial judge informed the jury only that petitioner would receive a life sentence "unless you, the members of the jury, by a special verdict recommend him to the mercy of the court." This charge, though not erroneous absent a request for further instruction, did not remedy counsel's total failure to argue for mercy. Cf. State v. Worthy, 239 S.C. 449, 123 S.E.2d 835 (1962) ( ). On the facts presented here, we find petitioner was prejudiced in sentencing by counsel's deficient performance. Cf. State v. McGee, 268 S.C. 618, 235 S.E.2d 715 (1977) ( ).
In Watson v. State, 287 S.C. 356, 338 S.E.2d 636 (1985), this Court remanded for a sentencing proceeding where a defendant pleaded guilty to burglary under former § 16-11-310 and was not informed he had a right to have a jury determine whether to recommend mercy. Here, petitioner did not plead guilty, but rather a jury determined his guilt. As noted above, a bifurcated proceeding is not required in a non-capital case. Therefore, the determination of guilty and whether mercy should be recommended should be made in one proceeding by the same jury. We have found that petitioner's counsel was ineffective for failing to argue for mercy to the jury which determined petitioner's guilt. To remand for a sentencing proceeding only would be inconsistent with our finding that the determination of guilt and mercy recommendation should be made in one proceeding. Therefore, we find that petitioner is entitled to a new trial.
REVERSED AND REMANDED for a new...
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State v. Cross
...evidence." 355 S.C. at 34, 583 S.E.2d at 750."[A] bifurcated proceeding is not required in a non-capital case." Chubb v. State , 303 S.C. 395, 397, 401 S.E.2d 159, 161 (1991).4 "[A bifurcated trial] is not required by either the common law, the statutory law, or the constitution of this Sta......
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Simmons v. State
...Thus, because the probability for prejudice is great, we grant petitioner a new trial on the burglary charge. See Chubb v. State, 303 S.C. 395, 401 S.E.2d 159 (1991) (holding because determination of guilt and whether mercy should be recommended should be made in one proceeding by the same ......
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State v. Bright
... ... controlled by an error of law."). A bifurcated trial was ... not required because this was a non-capital case. See ... Chubb v. State, 303 S.C. 395, 397, 401 S.E.2d 159, 161 ... (1991) ("[A] bifurcated proceeding is not required in a ... non-capital case."); ... ...
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Patrick v. State, 25427.
...was clearly prejudiced by counsel's failure to argue for mercy. Regardless, Petitioner is entitled to relief under Chubb v. State, 303 S.C. 395, 401 S.E.2d 159 (1991). Under Chubb, failure to argue mercy is per se Accordingly, we REVERSE the PCR court's finding that Petitioner was not preju......