Duckson v. State

• Decision Date: 08 September 2003
• Docket Number: No. 25712.,25712.
• Citation: 586 S.E.2d 576,355 S.C. 596
• Court: South Carolina Supreme Court
• Parties: Alphonso DUCKSON, Petitioner, v. STATE of South Carolina, Respondent.

355 S.C. 596

586 S.E.2d 576

Alphonso DUCKSON, Petitioner, v. STATE of South Carolina, Respondent.

No. 25712.

Supreme Court of South Carolina.

Submitted March 19, 2003.

Decided September 8, 2003.

Deputy Chief Attorney Joseph L. Savitz, III, of S.C. Office of Appellate Defense, of Columbia, for Petitioner.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Chief Deputy Capital & Collateral Litigation Donald J. Zelenka, Assistant Deputy Attorney General Allen Bullard, and Assistant Attorney General Elizabeth R. McMahon, all of Columbia, for Respondent.

JUSTICE PLEICONES:

Petitioner's parole was revoked following a hearing at which he was represented by a retained attorney. Petitioner then filed an application for post-conviction relief (PCR) alleging, among other things, that his parole revocation attorney rendered ineffective assistance of counsel. Following an evidentiary hearing, the PCR judge held:

(1) Petitioner had stated no cognizable claim under the Uniform Post Conviction Relief Act;¹ and (2) Petitioner failed to prove that his parole revocation counsel was ineffective.

We granted certiorari, and now affirm.

ISSUE

Has petitioner stated a cognizable PCR claim?

ANALYSIS

In Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000), we held that, generally, PCR is available "only when the applicant mounts a collateral attack challenging the validity of his conviction or sentence ..." Id. at 367, 527 S.E.2d at 749 (emphasis in original). The only exceptions are that a PCR action may be brought to assert a claim that the applicant's sentence has expired, or that his probation, parole, or conditional release has been unlawfully revoked. Id., citing S.C.Code Ann. § 17-27-20(a)(5).

At first glance, it would appear that petitioner's claim of ineffective assistance of counsel brings this action within the ambit of § 17-27-20(a)(5). An ineffective assistance claim is premised, however, on the violation of an individual's Sixth Amendment right to counsel. See, e.g., McKnight v. State, 320 S.C. 356, 465 S.E.2d 352 (1995). No such Sixth Amendment right to counsel exists, however, in the context of a parole revocation hearing which is an administrative rather than a criminal proceeding.² See In re McCracken, 346 S.C. 87, 551 S.E.2d 235 (2001) (Sixth Amendment right to the effective assistance of counsel limited to criminal actions).³ A constitutional right to counsel may arise in a parole revocation proceeding by virtue of the Due Process clause. See Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Further, a state statute permits counsel to appear at such a hearing. S.C.Code Ann. § 24-21-50 (Supp.2002). At his parole revocation hearing, petitioner was represented by his retained attorney. Since petitioner's attorney was permitted to appear, and since petitioner does not contend that his Due Process rights⁴ were violated, he has failed to allege that his parole revocation hearing was "unlawful." Petitioner has therefore failed to state a claim cognizable in a PCR action. S.C.Code Ann. § 17-27-20(a)(5).

Accordingly, the decision of the PCR court is

AFFIRMED.

TOAL, C.J., MOORE and BURNETT, JJ., concur.

WALLER, J., concurring in result in a separate opinion.

JUSTICE WALLER concurring in the result:

Because I believe petitioner had a right to the effective assistance of counsel at his parole revocation hearing, and therefore can bring a post-conviction relief (PCR) action, I disagree with the majority's reasoning. However, since petitioner failed to establish counsel's ineffectiveness, I concur in result only.

FACTS

Petitioner was convicted of murder in 1969 and sentenced to life imprisonment. He was paroled in 1979, went back to prison in 1984 because of a parole violation, and was paroled again in 1988.

The instant action stems from his 1999 parole revocation. According to the warrant issued in October 1998 by the Department of Probation, Parole and Pardon Services, petitioner violated his parole by failing to report, changing his residence at 4063 Charleston Highway, West Columbia, without permission, and failing to pay a supervision fee.⁵ On April 7, 1999, the Parole Board held a hearing at which petitioner was represented by John Watson.⁶ Petitioner contested the violations, but the Parole Board revoked his parole, thereby reinstating his life sentence.

At the PCR hearing, petitioner testified that he had a seventh-grade education and worked for steel companies. He stated he had not moved from his Charleston Highway residence and explained that his parole agent might have visited his residence while he was in the hospital since he was going every day for treatments. As to his attorney's performance at the parole revocation hearing, petitioner asserted Watson should have presented witness testimony. He showed that the arrest warrant, which was served on petitioner in January 1999, listed the 4063 Charleston Highway address. In addition, petitioner called his sister, Willie Deen Anderson, who testified that petitioner had been sick, and before he went back to jail, she drove him to the hospital every day for six months.

Watson testified for the State at the PCR hearing. Watson explained he attempted to convince the Parole Board that: (1) petitioner had not moved from his Charleston Highway residence, (2) any failure to report was because petitioner was in the hospital frequently for dialysis treatments, and (3) the $100 arrearage had been paid by Watson. Watson showed the Parole Board letters to petitioner at the Charleston Highway address and the receipt for the $100 payment. Watson testified he unsuccessfully attempted to contact petitioner's landlady and that other witnesses, such as petitioner's former wife and his daughter, refused to testify on petitioner's behalf.

The PCR court found petitioner had no right to counsel at the parole revocation hearing and therefore could not state a PCR claim. Alternatively, the PCR court found that even if petitioner was entitled to counsel, he had not shown counsel was ineffective.

DISCUSSION

As recognized by the majority, a parolee may have a right to counsel at a parole revocation hearing. See Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). In Gagnon, the United States Supreme Court was faced with the question of whether "an indigent probationer or parolee has a due process right to be represented by appointed counsel at these hearings." Id. at 783, 93 S.Ct. 1756. The Supreme Court started its analysis by looking at Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), which established the minimum requirements of due process for parole revocation. The Supreme Court rejected the argument that because of the rights outlined by Morrissey, counsel was unnecessary. Instead, the Supreme Court noted that "the effectiveness of the rights guaranteed by Morrissey may in some circumstances depend on the use of skills which the probationer or parolee is unlikely to possess." 411 U.S. at 786,93 S.Ct. 1756. The Gagnon Court concluded that the entitlement of counsel should be determined on a case-by-case basis. Giving guidance on how courts should make this determination, the Supreme Court stated the following:

[C]ounsel should be provided in cases where, after being informed of his right to request counsel, the probationer or parolee makes such a request, based on a timely and colorable claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present. In passing on a request for the appointment of counsel, the responsible agency also should consider, especially in doubtful cases, whether the probationer appears to be capable of speaking effectively for himself.

411 U.S. at 790-91, 93 S.Ct. 1756.

This Court has not had the occasion to address whether a parolee is entitled to counsel at a parole revocation hearing. However, the Court has held that at a probation revocation hearing, there is a right to counsel. See Barlet v. State, 288 S.C. 481, 343 S.E.2d 620 (1986) (discussing Gagnon, as well as holding that Supreme Court Rule 51 [now Rule 602, SCACR] requires that all persons charged with probation violations be advised of their right to counsel, and indigent persons be advised of their right to court appointed counsel); see also Salley v. State, 306 S.C. 213, 215, 410 S.E.2d 921, 922 (1991) ("The right to counsel attaches in probation revocation hearings."); Huckaby v. State, 305 S.C. 331, 335, 408 S.E.2d 242, 244 (1991) ("all persons charged with probation violations must be advised of their right to counsel") (citing Barlet, supra).

In my opinion, the right to counsel likewise attaches at a parole revocation hearing, or at the very least, at those parole revocation hearings that meet the guidelines for appointment of counsel laid out by the Supreme Court in Gagnon. See Gagnon, 411 U.S. at 790-91, 93 S.Ct. 1756.⁷ As to the instant case, petitioner clearly contested the some of the alleged parole violations and offered reasons in mitigation for others. In addition, he testified he only has a seventh grade education, which presumably would impact his ability to effectively present his case. Finally, it appears from Watson's PCR testimony that a certain amount of investigation and evidence gathering was required for the hearing, which clearly would have been near impossible for petitioner to accomplish since he was incarcerated. Accordingly, given the facts of this case, it is my opinion petitioner clearly was entitled to counsel at his parole revocation hearing. See id.

Petitioner makes the very reasonable argument that he was entitled to the...