Dean v. State
| Decision Date | 01 April 2015 |
| Docket Number | 2015-UP-176 |
| Parties | Charles Ray Dean, Petitioner, v. State of South Carolina, Respondent. Appellate Case No. 2012-212092 |
| Court | South Carolina Court of Appeals |
UNPUBLISHED OPINION
Heard February 3, 2015.
Appeal From Horry County George C. James Jr., Circuit Court Judge
Appellate Defender David Alexander, of Columbia, for Petitioner.
Attorney General Alan McCrory Wilson and Assistant Attorney General Christina Catoe Bigelow, both of Columbia, for Respondent.
In this post-conviction relief (PCR) matter, Petitioner Charles Ray Dean argues the PCR court erred in finding his Sixth Amendment right to effective assistance of counsel was not violated. Specifically, Dean argues plea counsel gave Dean erroneous sentencing advice and Dean would have proceeded to trial but for plea counsel's error. We reverse.
When Dean appeared before the plea court, he was informed that for the charge of murder, he was facing a minimum sentence of thirty years' imprisonment and a maximum sentence of life without parole. Dean maintained he still wished to plead guilty and the court accepted his plea as voluntary, knowing and intelligent. Plea counsel then requested the plea court sentence Dean to the minimum sentence of thirty years' imprisonment, at which point the plea court interrupted counsel to say, "That's day[-]for[-]day." According to plea counsel and Dean, they did not hear this statement at the time. At the end of the colloquy, the plea court sentenced Dean to thirty years' imprisonment and once again stated, "You have to serve it day[-]for[-]day." Both Dean and plea counsel were surprised when they heard the second "day-for-day" clarification.
Dean did not file a direct appeal but later filed an application for PCR, alleging ineffective assistance of plea counsel which the PCR court denied. A petition for writ of certiorari followed, which was granted by this court.
"On appeal in a PCR action, this [c]ourt applies an 'any evidence' standard of review." Taylor v. State, 404 S.C. 350, 359, 745 S.E.2d 97, 101 (2013). Under this standard, the PCR court's ruling will be upheld if it is supported in the appendix by any evidence of probative value and not controlled by an error of law. Shumpert v. State, 378 S.C. 62, 66, 661 S.E.2d 369, 371 (2008); Speaks v. State, 377 S.C. 396, 399, 660 S.E.2d 512, 514 (2008). However, reversal is warranted where no evidence of probative value supports the PCR court's decision. See Palacio v. State, 333 S.C. 506, 513, 511 S.E.2d 62, 66 (1999).
Did the PCR court err in finding Dean's right to effective assistance of counsel was not violated?
Dean maintains that plea counsel erroneously informed him before his plea that he would be required to serve only 85% of his sentence. Indeed, plea counsel acknowledged he was under the impression-after speaking with a trusted lawyer-that Dean would have to serve only 85% of his sentence under "the new law."[1] Dean further contends that neither the plea court nor plea counsel informed him that he was going to have to serve the thirty-year sentence day-for-day until after the guilty plea was entered. Immediately after sentencing, Dean wanted to "go back in front of the judge" and "pull [his] plea, " but plea counsel refused to do so because he did not believe the court was going to let Dean withdraw the plea. In sum, Dean argues that if plea counsel or the court had informed Dean that he was required to serve his sentence day-for-day before he entered his plea, he would have gone to trial instead of pleading guilty. We agree and find Dean has met his burden to prove ineffective assistance of counsel.
"In order to establish a claim for ineffective assistance of counsel, the [petitioner] must show that: (1) counsel failed to render reasonably effective assistance under prevailing professional norms, and (2) counsel's deficient performance prejudiced the [petitioner's] case." Speaks, 377 S.C. at 399, 660 S.E.2d at 514 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). The Strickland test requires a petitioner to make a showing on both prongs in order to prove ineffective assistance of counsel. Strickland, 466 U.S. at 687.
Here, the PCR court held that plea counsel's performance was not deficient. We disagree and find Dean's and plea counsel's testimonies reveal Dean received erroneous sentencing advice.
"In the context of a guilty plea, the deficiency prong inquiry turns on whether the plea was voluntarily, knowingly, and intelligently entered." Taylor, 404 S.C. at 360, 745 S.E.2d at 102. With regard to a PCR action, "[s]imply put, the first inquiry is whether trial counsel's advice was deficient." Alexander v. State, 303 S.C. 539, 542, 402 S.E.2d 484, 485 (1991). If a petitioner successfully proves his or her guilty plea was based on inaccurate sentencing advice from counsel, the deficiency prong has been satisfied. Id. at 542–43, 402 S.E.2d at 485 (). However, "the transcript of the guilty plea hearing will be considered to determine whether information conveyed by the plea [court] cured any possible error made by counsel." Burnett v. State, 352 S.C. 589, 592, 576 S.E.2d 144, 145 (2003); id. at 593-94, 576 S.E.2d at 146 ().
In this case, plea counsel testified that prior to the plea, he discussed Dean's case with another trusted lawyer, who told him that Dean would be required to serve only 85% of whatever his sentence would be under "the new law." Plea counsel was then asked, "[D]id you specifically tell Mr. Dean that it would be eighty[-]five percent?" Plea counsel responded, "I don't remember the exact words[, ] but that was discussed." (emphasis added). In the PCR hearing, plea counsel acknowledged Dean's surprise when he learned that he would have to serve his time day-for-day and not just 85% of the sentence. Counsel testified that after the plea, when they "got to the lock up[, ] Mr. Dean was highly upset with me because the judge had said [day-for-day] at the end of the plea." (emphasis added). Dean also testified at the PCR hearing. Dean maintained that at the time of the plea, he was under the impression that he was going to have to serve only 85% of his sentence.
We find plea counsel's testimony that "[85%] was discussed, " along with Dean's understanding that he would have to serve only 85% of his sentence, reveals that plea counsel's performance was deficient because he offered erroneous sentencing advice to Dean. See Alexander, 303 S.C. at 542-43, 402 S.E.2d at 485 (). Moreover, Dean and plea counsel expressed surprise upon hearing the plea court explain to Dean that he would have to serve his sentence "day-for-day." At no time should plea counsel have discussed 85% with Dean because, even under "the new law, " Dean would not be eligible for an early release after pleading guilty to murder. See S.C. Code Ann. § 24-13-125(A) (Supp. 2014) ().
Notwithstanding plea counsel's deficient advice, this court still has to review the transcript of the guilty plea hearing to determine whether information conveyed by the plea court cured any possible error made by counsel. See Burnett, 352 S.C. at 592, 576 S.E.2d at 145. "[E]ven where counsel offers misinformation, this deficiency can be cured where the trial court properly informs the defendant about the sentencing range." Bennett v. State, 371 S.C. 198, 205 n.6, 638 S.E.2d 673, 676 n.6 (2006).
In this case, the plea court informed Dean that he was facing a sentence of thirty years' to life imprisonment with no recommendation from the solicitor, and Dean stated he still wished to plead guilty. Furthermore, the plea court informed Dean he would not be eligible for parole and twice stated his sentence would be "day-for-day." However, these day-for-day clarifications were not given until after Dean's plea was accepted.
We acknowledge that no South Carolina law directly addresses whether information conveyed during a plea hearing-but after the plea has been accepted-can cure plea counsel's deficient advice. Under the circumstances of this case, however, we find a clarification from the plea court would need to be given before the plea was accepted to have any curative effect. See Holden v. State, 393 S.C. 565, 574–75, 713 S.E.2d 611, 616 (2011) (); Bennett, 371 S.C. at 205 n.6, 638 S.E.2d at 676 n.6 (same); Moorehead v. State, 329 S.C. 329, 333, 496 S.E.2d 415 416–17 (1998) (); see also Burnett, 352 S.C. at 593, 576 S.E.2d at 146 (); see generally Roddy v. State, 339 S.C. 29, 33, 528 S.E.2d 418, 421 (2000) (...
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