Franklin v. Catoe, No. 25353.

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtTOAL, Chief Justice
Citation552 S.E.2d 718,346 S.C. 563
PartiesEllis FRANKLIN, Respondent/Petitioner, v. William D. CATOE, Director, South Carolina Department of Corrections, Petitioner/Respondent.
Decision Date27 August 2001
Docket NumberNo. 25353.

346 S.C. 563
552 S.E.2d 718

Ellis FRANKLIN, Respondent/Petitioner,
v.
William D. CATOE, Director, South Carolina Department of Corrections, Petitioner/Respondent

No. 25353.

Supreme Court of South Carolina.

Heard November 14, 2000.

Decided August 27, 2001.

Rehearing Denied September 28, 2001.


346 S.C. 565
Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, and Assistant Deputy Attorney General Donald J. Zelenka, all of Columbia, for petitioner/respondent

Kenneth M. Suggs, of Suggs & Kelly, P.A., of Columbia, and David P. Voisin, of Center for Capital Litigation, of Columbia, for respondent/petitioner.

346 S.C. 566
TOAL, Chief Justice

The State appeals the post conviction relief ("PCR") court's order granting Ellis Franklin ("Franklin") a new trial on his capital murder charge. Franklin cross appeals the PCR court's ruling that he was not entitled to a new trial on his non-murder charges. We reverse.

FACTUAL/PROCEDURAL BACKGROUND

In January of 1993, Franklin was found guilty of murder, burglary in the first degree, grand larceny, and criminal sexual conduct in the first degree. In the penalty phase, the jury found four statutory aggravating circumstances and recommended a death sentence. The trial judge sentenced Franklin to death for murder, to ten years for grand larceny, to thirty years for criminal sexual conduct, and to life imprisonment for burglary. This Court affirmed these convictions on direct appeal. State v. Franklin, 318 S.C. 47, 456 S.E.2d 357 (1995). Franklin's petition for writ of certiorari to the United States Supreme Court was denied. Franklin v. South Carolina, 516 U.S. 856, 116 S.Ct. 160, 133 L.E.2d 103 (1995).

Franklin then filed for PCR on March 14, 1996. An evidentiary hearing was held on January 27, 1998. The evidentiary hearing was limited to the following allegations in Franklin's petition for relief:

1. Applicant did not knowingly or intelligently waive his right to address the jury at the conclusion of the guilt phase of his capital trial as guaranteed by S.C.Code Ann. § 16-3-28 (Supp.2000) and the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
2. Applicant was denied his right to the effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and South Carolina law by the following acts and omissions of trial counsel:
Counsel failed to explain to applicant that he had the right to address the jury at the conclusion of the guilt/innocence phase. See S.C.Code Ann. § 16-3-28.

On October 2, 1998, the PCR judge entered an order granting Franklin post conviction relief and requiring a new

346 S.C. 567
trial on all the charges. The State then moved to alter or amend the judgment asserting the non-murder charges of burglary, grand larceny, and criminal sexual conduct charges should not be affected by the alleged error and should be reinstated. On February 12, 1999, the PCR judge granted the State's request to limit relief to Franklin's murder conviction. Both parties appealed. This Court granted certiorari as to the State's Questions I and II and Franklin's Question II, and the following issues are before this Court
I. Did the PCR court err by finding Franklin did not waive his statutory right to make a personal closing statement in the guilt phase of his trial?
II. Assuming there was no waiver of Franklin's statutory right to make a closing statement in the guilt phase, did the PCR court err by granting a new trial because Franklin did not show he was prejudiced under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.E.2d 674 (1984) or Rule 61, SCRCP, by the lack of waiver?
III. Did the PCR court err by denying relief on Franklin's non-capital convictions after finding he had not knowingly and intelligently waived his right to address the jury during the guilt phase of his trial and after finding that counsel was ineffective for not advising him of that right?

LAW/ANALYSIS

I. Waiver

The State argues the PCR court erred in holding Franklin did not knowingly and intelligently waive his statutory right under S.C.Code Ann. § 16-3-28 to make a personal closing statement during the guilt phase of his capital murder trial. We disagree.

On October 2, 1998, the PCR court granted Franklin post conviction relief on the ground he did not knowingly and intelligently waive his statutory right to make an argument in the guilt phase of his trial.1 In reviewing a grant of post conviction relief, we are "concerned only with whether there is any evidence of probative value to support the PCR judge's

346 S.C. 568
decision." Palacio v. State, 333 S.C. 506, 512, 511 S.E.2d 62, 65 (1999); Skeen v. State, 325 S.C. 210, 481 S.E.2d 129 (1997). Therefore, the PCR court's findings should be affirmed if there is "any probative evidence" to support the court's findings. Palacio, supra.

Section 16-3-28 provides: "Notwithstanding any other provision of law, in any criminal trial where the maximum penalty is death or in a separate sentencing proceeding following such trial, the defendant and his counsel shall have the right to make the last argument." Before the abolition of in favoremvitae review, we held in State v. Orr, 304 S.C. 185, 403 S.E.2d 623 (1991), a capital defendant was entitled to reversal of his conviction where the trial judge failed to obtain an on-therecord waiver of the defendant's statutory right under section 16-3-28. See also State v. Cooper, 312 S.C. 90, 439 S.E.2d 276 (1994); State v. Reed, 293 S.C. 515, 362 S.E.2d 13 (1987), overruled in part by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991).

After in favorem vitae review was abolished, we stated the appropriate forum for addressing this issue was a post conviction relief proceeding "where the facts surrounding the trial can be fully explored." State v. Rocheville, 310 S.C. 20, 25, 425 S.E.2d 32, 35 (1993); Cartrette v. State, 323 S.C. 15, 448 S.E.2d 553 (1994); State v. Torrence, supra. We found "[t]he post conviction relief process is specifically designed to allow for an inquiry into the relevant facts surrounding the adequacy of a defendant's information and/or waiver of rights..." Cartrette, 323 S.C. at 18, 448 S.E.2d at 555. Therefore, under the current law, a petitioner for post conviction relief may no longer rely solely on the trial record to demonstrate the lack of waiver. The PCR court should analyze all the facts surrounding the trial to determine if a petitioner knowingly and intelligently waived his rights under section 16-3-28.

The trial record, PCR transcript, affidavits, and depositions support the PCR court's finding that Franklin did not knowingly and intelligently waive his right. There was no on-the-record waiver of Franklin's statutory right to personally address the jury at the end of the guilt phase. At the conclusion of the guilt phase, the trial court merely stated the order of closing arguments, but did not mention a defendant's right to

346 S.C. 569
address the jury. After reviewing the record, we cannot find any reference to Franklin's rights under section 16-3-28 until the penalty phase of the trial.2

Testimony at the PCR hearing further supports Franklin's argument that no waiver occurred. Two defense attorneys represented Franklin in his initial trial. Although it was not their first murder trial, it was the first capital case tried by either attorney. One of Franklin's attorneys testified he did not know at the time of trial a defendant had the right to make a closing argument in the guilt phase and did not advise

346 S.C. 570
Franklin he had such a right. He stated if he had known of the right, he "would have advised [Franklin] that was his right and certainly would have left it up to him to make a decision regarding what he wished to do." Co-counsel testified similarly. He stated at the time of the trial he was not aware of the guilt phase statutory right. He further stated he personally did not advise Franklin of this right, and, to his knowledge, his co-counsel had not either. Former solicitor Wade Kolb, the prosecutor in Franklin's case, also testified at the PCR hearing. He stated he did not specifically hear the trial court discuss a defendant's rights under section 16-3-28 with either defense counsel or Franklin. Finally, Franklin testified before the PCR judge. He stated neither of his counsel ever informed him of a statutory right to make a closing argument in the guilt phase.

Therefore, there is ample probative evidence to support the PCR court's finding that Franklin did not waive his right to make a personal argument during the guilt phase of the trial. The PCR court was correct in finding Franklin did not knowingly and intelligently waive his right under section 16-3-28.

II. Prejudice

The State argues the PCR court erred in granting Franklin a new trial because Franklin did not show he was prejudiced under Strickland by the lack of waiver. We agree and hold Franklin should have been required to show prejudice under Strickland,

In order to prevail in a PCR action, an applicant has to satisfy a two prong test.3 First, he must show his counsel's

346 S.C. 571
performance fell below an objective standard of reasonableness. Secondly, he is required to prove he suffered prejudice as a result of counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.E.2d 674 (1984); Johnson v. State, 325 S.C. 182, 480 S.E.2d 733 (1997). To prove prejudice, an applicant must show there is a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different. Id. Franklin has met his burden as to the first prong of the test by showing his counsel did not apprise him of his rights under section 16-3-28 and did not object to the trial court's failure to obtain a waiver. The State contends Franklin must also prove prejudice in this case, while Franklin argues...

To continue reading

Request your trial
40 practice notes
  • Smalls v. State, Appellate Case No. 2016-001079
    • United States
    • United States State Supreme Court of South Carolina
    • February 7, 2018
    ..."a reasonable probability ... the factfinder would have had a reasonable doubt" cannot possibly be met. In Franklin v. Catoe , 346 S.C. 563, 552 S.E.2d 718 (2001), although we discussed the specific impact of counsel's error, we also discussed what is "overwhelming evidence.&......
  • Rivera v. Lewis, C/A No. 5:16-00837-MGL-KDW
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • November 9, 2016
    ...and was not in fear for his life. Based upon all of this evidence, the Applicant cannot demonstrate prejudice. See Franklin v. Catoe, 346 S.C. 563, 570 n.3, 552 S.E.2d 718, 722 n.3 (2001) (finding overwhelming evidence of guilt negated any claim that counsel's deficient performance could ha......
  • State v. Northcutt, No. 26271.
    • United States
    • United States State Supreme Court of South Carolina
    • February 20, 2007
    ...trial judge committed error is the first step of our analysis. Next we must determine whether the error was harmless. Franklin v. Catoe, 346 S.C. 563, 572, 552 S.E.2d 718, 723 (2001) ("the harmless error rule and a prejudice analysis are no strangers to cases involving the death Whethe......
  • Bowman v. State, Appellate Case No. 2012-213468
    • United States
    • United States State Supreme Court of South Carolina
    • January 10, 2018
    ...a few pages of questioning on this issue during a multi-day sentencing hearing had been excluded." We agree. See Franklin v. Catoe , 346 S.C. 563, 552 S.E.2d 718 (2001) (finding ineffective assistance of counsel claims based on statutory violations in capital sentencing procedures are ......
  • Request a trial to view additional results
40 cases
  • Smalls v. State, Appellate Case No. 2016-001079
    • United States
    • United States State Supreme Court of South Carolina
    • February 7, 2018
    ...standard of "a reasonable probability ... the factfinder would have had a reasonable doubt" cannot possibly be met. In Franklin v. Catoe , 346 S.C. 563, 552 S.E.2d 718 (2001), although we discussed the specific impact of counsel's error, we also discussed what is "overwhelming evidence." 34......
  • Rivera v. Lewis, C/A No. 5:16-00837-MGL-KDW
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • November 9, 2016
    ...and was not in fear for his life. Based upon all of this evidence, the Applicant cannot demonstrate prejudice. See Franklin v. Catoe, 346 S.C. 563, 570 n.3, 552 S.E.2d 718, 722 n.3 (2001) (finding overwhelming evidence of guilt negated any claim that counsel's deficient performance could ha......
  • State v. Northcutt, No. 26271.
    • United States
    • United States State Supreme Court of South Carolina
    • February 20, 2007
    ...trial judge committed error is the first step of our analysis. Next we must determine whether the error was harmless. Franklin v. Catoe, 346 S.C. 563, 572, 552 S.E.2d 718, 723 (2001) ("the harmless error rule and a prejudice analysis are no strangers to cases involving the death Whether an ......
  • Bowman v. State, Appellate Case No. 2012-213468
    • United States
    • United States State Supreme Court of South Carolina
    • January 10, 2018
    ...if a few pages of questioning on this issue during a multi-day sentencing hearing had been excluded." We agree. See Franklin v. Catoe , 346 S.C. 563, 552 S.E.2d 718 (2001) (finding ineffective assistance of counsel claims based on statutory violations in capital sentencing procedures are su......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT