Davie v. State

• Decision Date: 09 March 2009
• Docket Number: No. 26608.,26608.
• Citation: 675 S.E.2d 416
• Parties: Jeffrey Eugene DAVIE, Petitioner, v. STATE of South Carolina, Respondent.
• Court: South Carolina Supreme Court

675 S.E.2d 416

Jeffrey Eugene DAVIE, Petitioner, v. STATE of South Carolina, Respondent.

No. 26608.

Supreme Court of South Carolina.

Submitted November 19, 2008.

Decided March 9, 2009.

Rehearing Denied April 10, 2009.

Deputy Chief Appellate Defender Wanda H. Carter, of South Carolina Commission on Indigent Defense, Division of Appellate Defense, of Columbia, for Petitioner.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General Julie M. Thames, of Columbia, for Respondent.

Justice BEATTY:

In this post-conviction relief (PCR) case, the Court granted a writ of certiorari to review the PCR judge's denial of relief to Jeffrey Eugene Davie (Petitioner) for his plea of guilty which resulted in a sentence of twenty-seven years in prison. Petitioner primarily contends the PCR judge erred in ruling that plea counsel was not ineffective for failing to communicate a fifteen-year plea offer made by the State. We reverse the PCR judge's order, vacate Petitioner's sentence, and remand for re-sentencing.

FACTUAL/PROCEDURAL HISTORY

Pursuant to a plea agreement, Petitioner pled guilty in November 2000 to trafficking crack cocaine, third offense; distribution of crack cocaine, third offense; distribution of crack cocaine within proximity of a public park; conspiracy to violate the South Carolina drug laws; unlawful conduct toward a child; failure to stop for a blue light; driving under suspension, third offense; and child endangerment. In exchange for Petitioner's "straight up" plea, the State agreed to dismiss additional charges. At the plea hearing, the State stipulated that the dismissal of the other charges would preclude the State from seeking a sentence of life without the possibility of parole for Petitioner.¹ The judge sentenced Petitioner to an aggregate of twenty-seven years' imprisonment. Petitioner did not directly appeal his plea or sentence.

On April 12, 2001, Petitioner filed a PCR application. In his application, Petitioner moved for the PCR court to vacate his guilty plea and sentence on the ground the State reneged on a twenty-five-year sentencing cap. In an amended application, Petitioner raised several subject matter jurisdiction challenges to the charges for which he pled guilty. Additionally, Petitioner alleged he was denied effective assistance of counsel on the ground his plea counsel failed to properly advise him of the sentencing enhancements for his prior drug offenses. In an amended application dated July 31, 2002, Petitioner's PCR counsel reiterated Petitioner's prior claims but also alleged that plea counsel had failed to inform Petitioner of a written plea agreement in which the State offered a fifteen-year sentence in exchange for Petitioner's plea to all of the pending charges.

At the PCR hearing, Petitioner testified that two years after he pled guilty he discovered the State initially extended a plea offer of fifteen years. Because plea counsel never communicated this offer to him, Petitioner claimed ineffective assistance of counsel. Petitioner stated he would have accepted the fifteen-year deal had he been aware of it prior to the plea proceeding.

Plea counsel testified he was not aware of the State's offered plea agreement for a fifteen-year sentence until after the offer had expired. Counsel explained he was in the process of relocating his office at the time the State mailed its written plea offer. As part of the office relocation, counsel stated he acquired a new post office box. Had he been aware of the offer, counsel claimed he would have communicated it to Petitioner. Counsel believed Petitioner would have accepted the plea offer had it been communicated to him. Counsel further testified that the only subsequent offer was the one Petitioner accepted at his plea hearing, wherein Petitioner pled "straight up" to the eight charges in return for the State dropping the remaining three charges and seeking a sentence of life without parole.

At the conclusion of the PCR hearing, Petitioner's counsel argued that plea counsel's failure to communicate the plea offer to Petitioner constituted ineffective assistance of counsel. In terms of relief, counsel requested the PCR court remand the case for a re-sentencing hearing with the directive that the new sentence could not exceed the twenty-seven-year sentence that was previously imposed.

The judge denied Petitioner's request for relief, finding "no proof of ineffective assistance of counsel regarding the unfortunate circumstances, which caused a plea offer to lapse prior to [Petitioner's] consideration of the same." The judge stated it was "unfortunate" that Petitioner did not have the opportunity to consider the fifteen-year plea offer. However, the judge noted the offer was not available to Petitioner at the time of his guilty plea. Additionally, the judge found Petitioner knowingly and voluntarily pled guilty given he was fully advised of the rights he was waiving by pleading guilty and he understood the underlying charges of his guilty plea. The judge also concluded Petitioner ultimately benefited from the State's agreement by avoiding a sentence of life without parole.²

The Court granted the Petitioner's request for a writ of certiorari to review the PCR judge's decision.

DISCUSSION

Petitioner contends his plea counsel was ineffective in failing to communicate the State's initial fifteen-year plea offer to him. Because he would have accepted the offer, Petitioner asserts he was prejudiced by counsel's deficient performance. We agree.

Standard of Review

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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This Court has held that a defendant has the right to effective assistance of counsel during the plea bargaining process. Judge v. State, 321 S.C. 554, 471 S.E.2d 146 (1996), overruled on other grounds by Jackson v. State, 342 S.C. 95, 535 S.E.2d 926 (2000). "There is a strong presumption that counsel rendered adequate assistance and exercised reasonable professional judgment in making all significant decisions in the case." Ard v. Catoe, 372 S.C. 318, 331, 642 S.E.2d 590, 596, cert. denied, ___ U.S. ___, 128 S.Ct. 370, 169 L.Ed.2d 247 (2007).

In a PCR proceeding, the applicant bears the burden of establishing that he or she is entitled to relief. Caprood v. State, 338 S.C. 103, 109, 525 S.E.2d 514, 517 (2000). "In the context of a guilty plea, the court must determine whether 1) counsel's advice was within the range of competence demanded of attorneys in criminal casesi.e. was counsel's performance deficient, and 2) if there is a reasonable probability that, but for counsel's errors, the defendant would not have pled guilty." Smith v. State, 369 S.C. 135, 138, 631 S.E.2d 260, 261 (2006) (citing Hill v Lockhart, 474 U.S. 52, 56-58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)). "The defendant's undisputed testimony that he would not have pled guilty to the charges but for trial counsel's advice is sufficient to prove that defendant would not have pled guilty." Id. at 138, 631 S.E.2d 260, 631 S.E.2d at 261. "In determining guilty plea issues, it is proper to consider the guilty plea transcript as well as evidence at the PCR hearing." Suber v. State, 371 S.C. 554, 558, 640 S.E.2d 884, 886 (2007).

"This Court gives great deference to the post-conviction relief (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). 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. Smith, 369 S.C. at 138, 631 S.E.2d at 261. This Court will uphold the findings of the PCR court when there is any evidence of probative value to support them, and will reverse the decision of the PCR court when it is controlled by an error of law. Suber, 371 S.C. at 558-59, 640 S.E.2d at 886.

To prevail on his claim of ineffective assistance of counsel, Petitioner was required to prove that 1) plea counsel's failure to communicate the State's initial, fifteen-year plea offer constituted deficient performance, and 2) he was prejudiced by this deficient performance, i.e., there is a reasonable probability that but for counsel's deficient performance, he would have accepted the original plea offer.

Deficient Performance

Although our appellate courts have not directly addressed the question of whether counsel's failure to communicate a plea offer to his or her client constitutes deficient performance, other cases of deficient performance in the context of plea bargaining would appear to support Petitioner's position. See, e.g., Sprouse v. State, 355 S.C. 335, 340, 585 S.E.2d 278, 281 (2003) (finding defendant was entitled to post-conviction relief where the State failed to honor the plea agreement it made with defendant and trial counsel failed to ensure that the State adhered to the original plea agreement); Thompson v. State, 340 S.C. 112, 116-17, 531 S.E.2d 294, 296-97 (2000) (concluding defendant established a claim for ineffective assistance of counsel where trial counsel failed to object when the solicitor recommended the maximum sentence in violation of the plea agreement); Jordan v. State, 297 S.C. 52, 53-54, 374 S.E.2d 683, 684-85 (1988) (holding trial counsel rendered ineffective assistance of counsel in failing to withdraw guilty plea after State reneged on plea, and reasoning that counsel's conduct in not protecting defendant's right to enforce the plea agreement with the solicitor's office fell below "prevailing professional norms").

Because our appellate courts have not specifically ruled on this issue, we are guided by the decisions of other state and federal jurisdictions. As we view these cases, we believe an adoption of a rule...