Hansen v. Warden, Wateree River Corr. Inst., Civil Action No. 6:11-2670-RMG-KFM
| Decision Date | 27 July 2012 |
| Docket Number | Civil Action No. 6:11-2670-RMG-KFM |
| Court | U.S. District Court — District of South Carolina |
| Parties | Phillip A. Hansen, #192632, Petitioner, v. Warden, Wateree River Correctional Institution, Respondent. |
The petitioner, a state prisoner proceeding pro se, seeks habeas corpus relief pursuant to Title 28, United States Code, Section 2254.
Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) DSC, this magistrate judge is authorized to review post-trial petitions for relief and submit findings and recommendations to the District Court.
The petitioner is currently confined in Wateree River Correctional Institution of the South Carolina Department of Corrections ("SCDC") pursuant to orders of commitment of the Clerk of Court for Sumter County. The petitioner was indicted in July 2006 for Burglary 1st Degree (2006-GS-0578). Charles T. Brooks, III, represented the petitioner on the charge. On November 6, 2006, the petitioner proceeded to a jury trial before the Honorable John M. Milling, Circuit Court Judge. After pre-trial motions, the petitioner entered a guilty plea to Burglary 1st Degree pursuant to North Carolina v. Alford, 400 U.S. 25 (1970). The petitioner was sentenced to the negotiated sentence of 15 years imprisonment suspended to ten years. As part of the negotiation, another burglary charge against the petitioner was nol prossed. The petitioner did not appeal.
On March 26, 2006, the petitioner broke into the residence of John Lewis Jackson in Sumter County and stole an air compressor and a drill. Prior to the burglary, Mr. Jackson had left his residence and gone to the grocery store. He returned about 15 minutes later and saw a blue Ford Ranger backed in next to his residence. Mr. Jackson discovered the petitioner leaving from behind the house. He pulled up and spoke to the petitioner from a few feet away and asked him what he was doing there. Mr. Jackson could see an air compressor and a DeWalt drill similar to items he owned in the back of the petitioner's truck. When he started to question the petitioner further, the petitioner drove away. Mr. Jackson got the petitioner's tag number and contacted the police. Subsequently, the police obtained a search warrant for the petitioner's residence. At the petitioner's residence, police found the Ford Ranger pick-up with the matching tag number. They recovered the air compressor and the DeWalt drill. Mr. Jackson testified that there was no question that the recovered air compressor belonged to him and that the drill was similar. He also identified the petitioner from a photographic lineup. The petitioner was eventually arrested. The petitioner had prior convictions for Burglary 2nd from 1988, 1990, and 1992. He also had previously been convicted of simple possession of marijuana and drug paraphernalia in 1989. In 1998, he had a conviction for failure to stop for a blue light, a 2000 conviction for petty larceny, and 2001 convictions for driving under suspension and possession of crack cocaine.
The petitioner filed an application for post-conviction relief ("PCR") on January 11, 2007. The respondent filed a Return on May 22, 2007. The petitioner also submitted a pro se amendment to his application dated August 18, 2007. An evidentiary hearing was held on April 3, 2009, before the Honorable George C. James, Circuit Court Judge. Thepetitioner was present at the hearing and was represented by Patrick Killen. The respondent was represented by Mary S. Williams of the S.C. Attorney General's Office.
At the hearing, the petitioner testified in his own behalf. Charles T. Brooks, III, the petitioner's plea counsel, also testified. The Court also had before it the records of the Sumter County Clerk of Court, the plea transcript, and the petitioner's records from the SCDC. On May 26, 2009, the PCR court entered its Order of Dismissal, denying and dismissing the petitioner's PCR allegations with prejudice (App. 127-34).
After first reviewing the procedural posture of the case, the PCR court noted in its order of dismissal that, in his application for PCR, the petitioner alleged he was being held unlawfully for the following reasons:
(App. 128). The PCR court also noted that at the evidentiary hearing the petitioner also alleged that he thought he was pleading guilty to Burglary 2nd Degree, a non-violent offense for which he would be parole eligible upon service of 65% of his sentence, insufficient investigation by his counsel, and that he was denied a direct appeal (App. 128).
The PCR court reviewed the petitioner's claim of ineffective assistance of counsel, noting the applicant must prove that "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result" (App. 128-29 (). The PCR court then applied thetwo-pronged test in Strickland of reasonableness and prejudice to evaluate the petitioner's allegations.
The PCR court noted that the petitioner asserted that his plea was rendered involuntary as a result of counsel's misadvice on the negotiated plea. The PCR court pointed out that to find a guilty plea is voluntarily and knowingly entered into, the record must establish the applicant had a full understanding of the consequences of his plea and the charges against him (App. 129-30 (). The PCR court stated that in determining guilty plea issues it is proper to consider the guilty plea transcript as well as evidence at the PCR hearing (App. 130 (citing Harris v. Leeke, 318 S.E.2d 360 (S.C. 1984)). The PCR court also noted that an applicant who enters a plea on the advice of counsel may only attack the voluntary and intelligent character of the plea by showing that trial counsel's representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for trial counsel's errors, the defendant would not have pled guilty, but would have insisted on going to trial (App. 130 ().
During the PCR hearing, the petitioner testified that counsel informed him that he would be pleading to Burglary - 2nd Degree and would be sentenced to ten years. The petitioner further asserted that he was told that the offense would be classified as non-violent and that he would be eligible for parole upon completion of 65% of his sentence. The petitioner testified that when he signed the sentencing sheet it was completely blank. The petitioner asserted that because the sentencing sheet lists S.C. Code §16-11-312 in the upper right hand corner and CDR code 0080, it is apparent that the intention was to sentence him to Burglary - 2nd Degree (App. 93-98, 130).
The PCR court found the petitioner's claim to be without merit, finding the plea colloquy clearly established the petitioner's understanding that he was pleading to Burglary- 1st Degree. The PCR court found the petitioner was advised that he faced a sentence range of 15 years to life and that the sentence would be considered violent and most serious. The court found the plea judge informed the petitioner that he would have to serve 85% of his sentence before becoming eligible for parole. The court found the Solicitor stated during the plea: "the negotiated sentence is a plea to burglary in the first degree, 15 years suspended to 10 years" (App. 130; see App. 42-46). The court found the petitioner indicated that he understood the negotiated sentence would be 15 years suspended to ten and that an additional count of Burglary - 1st Degree would be nol prossed. The court found the petitioner indicated that, other than the negotiated sentence, no other promises had been made. The court further found the petitioner's argument that due to his limited education he did not understand the terms of the plea to be unconvincing. The court found the petitioner gave clear and appropriate answers at his plea and was able to speak clearly about his claims at the PCR hearing (App. 131; see App. 47).
The court noted counsel explained that the petitioner was originally arrested for Burglary - 2nd Degree, but due to his prior convictions, the petitioner was indicted for Burglary - 1st Degree. The court pointed out that counsel testified that the plea offer was indeed to Burglary - 1st Degree and that the negotiated sentence was 15 years suspended to ten. The court also pointed out counsel denied telling the petitioner that he would be eligible for parole upon 65% of his sentence. Counsel stated that he informed the petitioner that the sentence would be considered violent and would be an 85% sentence, and counsel noted that the plea judge reaffirmed that for the petitioner during the plea. Counsel represented the petitioner on both counts of Burglary - 1st Degree. The court also pointed out counsel testified that the case that the petitioner pled to was a stronger case, so the solicitor intended to move forward with it first and then seek life without parole on the second case. The court also noted counsel testified that he had attempted to negotiate aplea to Burglary - 2nd Degree, but the solicitor never offered a plea to Burglary - 2nd Degree in the case (App. 112-15, 131).
The PCR court found counsel's testimony to be credible that the petitioner was correctly advised concerning the...
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