Dalton v. State, No. 4323.

CourtCourt of Appeals of South Carolina
Writing for the CourtAnderson
Citation654 S.E.2d 870
PartiesRichard C. DALTON, Respondent, v. STATE of South Carolina, Petitioner.
Decision Date18 December 2007
Docket NumberNo. 4323.
654 S.E.2d 870
Richard C. DALTON, Respondent,
v.
STATE of South Carolina, Petitioner.
No. 4323.
Court of Appeals of South Carolina.
Submitted December 1, 2007.
Decided December 18, 2007.

[654 S.E.2d 871]

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General Molly R. Crum, of Columbia, for Petitioner.

Lanelle C. Durant, of Columbia, for Respondent.

ANDERSON, J.:


The post-conviction relief (PCR) court granted Richard C. Dalton's (Dalton) application for relief after finding his guilty plea was involuntary due to counsel's failure to interview witnesses. This court granted the State's petition to review the PCR court's decision. We reverse.1

FACTUAL/PROCEDURAL BACKGROUND

Dalton was indicted for two counts of criminal sexual conduct with a minor second degree against two step-daughters, fifteen-year-old "Child A" and thirteen-year-old "Child B." Respondent was represented by appointed counsel. Concerning the charge involving Child A, Dalton pled guilty as indicted to one count of criminal sexual conduct with a minor second-degree on July 18, 2002. He waived presentment on the other charge involving Child B and pled guilty to one count of lewd act on a minor. Dalton was sentenced to: (1) twenty years for criminal sexual conduct with a minor second-degree, provided upon fifteen years the balance would be suspended with five years probation and (2) a concurrent term of fifteen years for lewd act on a minor.

At the guilty plea hearing, evidence of Dalton's guilt on the charge involving Child A was presented. The solicitor told the judge that Child A said Dalton fondled her, had sexual intercourse with her at least four times, and engaged in oral sex. The judge was informed that Child B reported Dalton fondled her and made some oral sexual contact. Dalton admitted to a Department of Social Services caseworker that he would "eat [Child A] out," but he denied having sex. Additionally, Dalton gave a statement to police confessing he did have sex with Child A. Dalton only disagreed with the length of time over which the events occurred.

Dalton's counsel at the plea hearing indicated he had explained to Dalton the charges, the possible punishment, his constitutional rights including his right to a jury trial, and his right to present the lewd act charge to a grand jury. Counsel said Dalton understood and wished to plead guilty. The plea court advised Dalton that by entering a guilty plea he would give up his constitutional rights to (1) remain silent and not be compelled to testify against himself; (2) be tried by a jury of peers or equals to which the State would be required to prove his guilt beyond a reasonable doubt; and (3) confront

654 S.E.2d 872

and cross-examine witnesses presented against him as well as his right to call witnesses in his own behalf.

Regarding the lewd act charge, the plea court explained it was not a lesser included offense of criminal sexual conduct second degree and it had not been presented to a grand jury. The court informed Dalton a grand jury could determine probable cause and a trial would follow, or the grand jury could return a no bill. The plea court asked:

Q: Do you understand that process?

. . .

A: Yes, sir.

Q: And do you still wish to give up your right of presentment of this charge to the Grand Jury.

A: Yes, sir.

After assuring Dalton understood the constitutional rights that he would be giving up by pleading guilty, the colloquy continued as follows:

Q: Understanding the nature of the charges against you and the consequences of a guilty plea, how do you plead to these charges, guilty or not guilty?

A: Guilty.

Q: Do you understand that, when you plead guilty, that you will waive or give up any possible defenses that you might have to these charges?

A: Yes, sir.

Q: And do you also understand that, if you've given an incriminating statement in this case, that, by pleading guilty, that you will waive or give up the right to contest or challenge whether such a statement was freely and voluntarily given in accordance with your constitutional rights?

A: (Nods affirmatively.)

Q: Did you commit these offenses?

A: Yes, sir.

The plea court asked Dalton whether he understood the recommended concurrent sentences were not binding and he could be sentenced to the maximum on both charges. Dalton answered affirmatively. The court continued:

Q: You still wish to enter your plea of guilty?

A: Yes, sir.

Q: Now, Mr. Dalton, when you enter a plea of guilty — has anyone promised you anything or threatened you in order to get you to enter this plea of guilty?

A: No, sir.

Q: Are you entering this plea of your own free will and accord?

A: Yes, sir, I am.

Q: Are you satisfied with the manner in which [your counsel] has advised and represented you?

A: Yes, sir.

Q: Do you need any more time to speak with him?

A: No.

Q: You feel that he's done everything for you that he could have or should have done?

A: Well, he's — no, not really. I believe that he, he needs to bring up the fact that I know I'm guilty and I admit my fault here. But I have no criminal prior record at this, this matter. I —

Q: He's gonna be able to tell me that in a few minutes.

. . .

Q: What, what I'm asking you is up until —

A: He's done his, his job very well.

Q: All right. All right. So, you're completely satisfied with —?

A: Yes.

Q: — what he's done?

A: Yes, sir.

Dalton's counsel informed the plea court Dalton intended to plead guilty to spare the victims from having to testify. He explained Dalton's only prior record was limited to minor traffic offenses, and he was working and taking care of his family when charged. The judge was told that Dalton had developed a crack habit in the time leading up to

654 S.E.2d 873

the charges and this legal trouble was out of the ordinary for him. The court accepted Dalton's guilty plea, finding it was voluntarily, knowingly and intelligently made, with the advice and counsel of a competent lawyer with whom Dalton was satisfied.

Dalton failed to timely file and serve his pro se direct appeal. On November 25, 2002, he filed an application for post-conviction relief alleging ineffective assistance of counsel and involuntary pleas. An evidentiary hearing was held on May 28, 2004, and relief was granted by a written order on February 11, 2005. Dalton's petition for appeal bond was denied by the South Carolina Supreme Court, and the State filed a petition for writ of certiorari. Jurisdiction was transferred to this court on February 15, 2006.

ISSUE

Did the PCR court err in finding that counsel was ineffective for failing to interview witnesses when Dalton pled guilty?

STANDARD OF REVIEW

The proper standard of review of a post-conviction relief evidentiary hearing is whether "any evidence of probative value" exists to sustain the PCR judge's findings. Wicker v. State, 310 S.C. 8, 11, 425 S.E.2d 25, 27 (1992); Cherry v. State, 300 S.C. 115, 386 S.E.2d 624 (1989). In a PCR proceeding, the applicant bears the burden of proving the allegations in their application. Butler v. State, 286 S.C. 441, 442, 334 S.E.2d 813, 814 (1985); Rule 71.1(e), SCRCP.

Where ineffective assistance of counsel is alleged as a ground for relief, the applicant must prove that "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result." Strickland v. Washington, 466 U.S. 668, 669, 104 S.Ct. 2052, 80 L.Ed.2d 674, (1984); Butler v. State, 286 S.C. 441, 334 S.E.2d 813 (1985). The proper measure of performance is whether the attorney provided representation within the range of competence required in criminal cases. The courts presume that counsel 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. The applicant must overcome this presumption in order to receive relief. Cherry, 300 S.C. at 118, 386 S.E.2d at 625.

A two-pronged test is used in evaluating allegations of ineffective assistance of counsel. A PCR applicant who pleads guilty on the advice of counsel may collaterally attack the plea only by showing that (1) counsel was ineffective and (2) there is a reasonable probability that but for counsel's errors, the applicant would not have pled guilty and would have insisted on going to trial. Roscoe v. State, 345 S.C. 16, 20, 546 S.E.2d 417, 419 (2001). When alleging that his guilty plea was induced by ineffective assistance of counsel, an applicant must prove that counsel's advice was not "within the competence demanded of attorneys in criminal cases." Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

LAW/ANALYSIS

Dalton argued his guilty plea was involuntary due to trial counsel's failure to interview witnesses before advising him to plead guilty. In the order granting Dalton's application for relief, the PCR court agreed and annunciated in its order:

Had applicant's trial counsel consulted with the witnesses given him by the applicant, there is reasonable probability that results of proceedings could have been different. As argued by Applicant, Trial Counsel's failure to interview any of the witnesses left this Applicant with no defense or evidence of mitigation at trial, effectively forcing him to throw himself upon the mercy of the court.

The Court finds Trial Counsel's argument that it was needless to interview witnesses due to Applicant's Statement is not convincing. Applicant's Statement did not address the charges comprising the lewd act, and was less conclusive on all elements of the CSC second degree charge. Applicant's witness who testified at the PCR Hearing called into question the credibility of the...

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6 practice notes
  • Young v. Lewis, C/A No.: 5:18-3046-RMG-KDW
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • April 11, 2019
    ...the defendant had a full understanding of the consequences of his plea and the charges against him. Dalton v. State, 376 S.C. 130, 138, 654 S.E.2d 870, 874 (Ct. App. 2007) (citing Boykin v. Alabama, 395 U.S. 238, 242 (1969)). A defendant's knowing and voluntary waiver of statutory or consti......
  • Garren v. State, Appellate Case No. 2015-000756
    • United States
    • United States State Supreme Court of South Carolina
    • April 25, 2018
    ...inmate's right to contest the validity of such a plea is usually, but not invariably, foreclosed." Dalton v. State , 376 S.C. 130, 137, 654 S.E.2d 870, 874 (Ct. App. 2007) (citing Blackledge v. Allison , 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977) ). Indeed, where a thorough collo......
  • Pegues v. Kendall, C. A. 5:21-763-TMC-KDW
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • November 4, 2021
    ...valid reasons why he or she should be allowed to depart from the truth of his statements. Dalton 4 v. State, 376 S.C. 130, 137-38, 654 S.E.2d 870, 874 (Ct. App. 2007) (citing Crawford v. United States, 519 F.2d 347, 350 (4th Cir. 1975)). The standards do not establish mechanical rules; the ......
  • Presley v. Eagleton, C/A No.: 1:14-3785-BHH-SVH
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • July 27, 2015
    ...a criminal inmate presents valid reasons why he should be allowed to Page 28depart from the truth of his statements." Dalton v. State, 654 S.E.2d 870 (S.C. Ct. App. 2007) (citing Crawford v. United States, 519 F.2d 347 (4th Cir. 1975)). Petitioner acknowledged at the PCR hearing he had sign......
  • Request a trial to view additional results
6 cases
  • Young v. Lewis, C/A No.: 5:18-3046-RMG-KDW
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • April 11, 2019
    ...the defendant had a full understanding of the consequences of his plea and the charges against him. Dalton v. State, 376 S.C. 130, 138, 654 S.E.2d 870, 874 (Ct. App. 2007) (citing Boykin v. Alabama, 395 U.S. 238, 242 (1969)). A defendant's knowing and voluntary waiver of statutory or consti......
  • Garren v. State, Appellate Case No. 2015-000756
    • United States
    • United States State Supreme Court of South Carolina
    • April 25, 2018
    ...inmate's right to contest the validity of such a plea is usually, but not invariably, foreclosed." Dalton v. State , 376 S.C. 130, 137, 654 S.E.2d 870, 874 (Ct. App. 2007) (citing Blackledge v. Allison , 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977) ). Indeed, where a thorough collo......
  • Pegues v. Kendall, C. A. 5:21-763-TMC-KDW
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • November 4, 2021
    ...valid reasons why he or she should be allowed to depart from the truth of his statements. Dalton 4 v. State, 376 S.C. 130, 137-38, 654 S.E.2d 870, 874 (Ct. App. 2007) (citing Crawford v. United States, 519 F.2d 347, 350 (4th Cir. 1975)). The standards do not establish mechanical rules; the ......
  • Presley v. Eagleton, C/A No.: 1:14-3785-BHH-SVH
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • July 27, 2015
    ...a criminal inmate presents valid reasons why he should be allowed to Page 28depart from the truth of his statements." Dalton v. State, 654 S.E.2d 870 (S.C. Ct. App. 2007) (citing Crawford v. United States, 519 F.2d 347 (4th Cir. 1975)). Petitioner acknowledged at the PCR hearing he had sign......
  • Request a trial to view additional results

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