Franklin v. Catoe, 25353.
Decision Date | 27 August 2001 |
Docket Number | No. 25353.,25353. |
Parties | Ellis FRANKLIN, Respondent/Petitioner, v. William D. CATOE, Director, South Carolina Department of Corrections, Petitioner/Respondent. |
Court | South Carolina Supreme Court |
346 S.C. 563
552 S.E.2d 718
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.
Kenneth M. Suggs, of Suggs & Kelly, P.A., of Columbia, and David P. Voisin, of Center for Capital Litigation, of Columbia, for respondent/petitioner.
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
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
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
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
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
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