Hyman v. State

• Decision Date: 14 March 2012
• Docket Number: No. 27105.,27105.
• Citation: 397 S.C. 35,723 S.E.2d 375
• Parties: Marcus HYMAN, Petitioner, v. STATE of South Carolina, Respondent.
• Court: South Carolina Supreme Court

397 S.C. 35

723 S.E.2d 375

Marcus HYMAN, Petitioner,

v.STATE of South Carolina, Respondent.

No. 27105.

Supreme Court of South Carolina.

Heard Oct. 18, 2011.Decided March 14, 2012.

Appellate Defender LaNelle C. DuRant, of Columbia, for Petitioner.

Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Senior Assistant Attorney General David Spencer, all of Columbia, for Respondent.

Chief Justice TOAL.

Marcus Hyman (Petitioner) appeals the denial of his request for post-conviction relief (PCR) on the ground that his counsel was ineffective. We affirm.

Facts/Procedural Background

In June 2007, a grand jury indicted Petitioner for the offenses of distribution of cocaine, third offense, and distribution of cocaine within the proximity of a school or park. In September 2007, Petitioner pleaded guilty to these charges, and after a colloquy with the plea judge, he relinquished various constitutional rights, including his right to a jury trial. The plea judge sentenced Petitioner to the mandatory minimum sentence of fifteen years imprisonment for the distribution charge and ten years for the proximity charge, to run concurrently. No direct appeal was taken. However, Petitioner subsequently filed an application for PCR.

Central to Petitioner's ineffective assistance of counsel claim on appeal is a videotape recording of the drug transaction, forming the basis of his charges, that Petitioner never saw prior to pleading guilty. At the evidentiary hearing, Petitioner testified that, after his arrest, he requested to view all of the evidence in the State's possession. Defense counsel testified that she became aware of the videotape early in her representation of Petitioner when she read Petitioner's arrest warrant. Shortly thereafter, defense counsel informed Petitioner of the existence of the videotape and its alleged content.

Defense counsel subsequently undertook negotiations with the solicitor to work out a plea agreement on Petitioner's behalf.¹ These negotiations ultimately resulted in the solicitor agreeing to reduce the distribution charge to a second offense, in exchange for Petitioner's agreement to serve five years in prison. This offer was conditioned on Petitioner's agreement not to view the videotape due to the involvement of a confidential informant, whose identity the State sought to conceal but would have been revealed to Petitioner if Petitioner watched the videotape.² At the evidentiary hearing, defense counsel testified that plea offers conditioned on the nondisclosure of certain evidence in the State's possession were “basically protocol for all drug cases,” so as not to “burn[ ] ... [the] confidential informant” unless necessary, or compromise the informant's safety.³ The solicitor's offer was set to expire on September 18, 2007, at whatever time the plea judge retired for the afternoon.

At the evidentiary hearing, Petitioner testified he repeatedly told defense counsel that he wanted to watch the videotape, and stated that his personal review of the videotape was critical to whether he planned to accept the offer because he wanted to discern whether the videotape depicted his involvement in the drug transaction. To the contrary, defense counsel testified that her notes from conversations with Petitioner during this time reveal that she spoke to Petitioner on August 9, 2007, and again on September 7, 2007, and during both conversations, Petitioner stated he wanted her to watch the videotape. Consequently, defense counsel testified, she watched the videotape on September 14, 2007, and testified the videotape “clearly” depicted Petitioner engaged in a drug transaction.⁴ Defense counsel relayed these impressions to Petitioner while the five-year offer was still on the table. During this conversation, after defense counsel described the perpetrator as wearing a hat, Petitioner informed her that “it couldn't possibly be him” in the videotape because he never wore hats. Therefore, defense counsel asked the narcotics officer for still photographs from the videotape, which she showed to Petitioner prior to the expiration of the offer. Petitioner testified he recognized himself as the subject of these photographs, but testified that the images did not show him engaged in a drug transaction.⁵ Petitioner still refused to accept the solicitor's offer.

As promised, the offer expired when the plea judge retired on September 18, 2007. The next day, September 19, 2007, the parties picked a jury in Petitioner's trial, with opening statements to follow on September 20, 2007. After jury selection but before his trial began in full, Petitioner pleaded “straight up” to the charges.⁶ At the evidentiary hearing, defense counsel testified Petitioner never saw the videotape because he decided not to proceed to trial.⁷

The PCR judge denied Petitioner's application and dismissed it with prejudice. In determining that counsel was not ineffective, the PCR judge noted that defense counsel watched the videotape, Petitioner had the opportunity to see still photographs made from the videotape, and plea counsel met with Petitioner to discuss the charges against him, the punishment he faced, and the negotiations. Furthermore, the PCR judge found defense counsel more credible than Petitioner. The PCR judge stated he was concerned over the seemingly widespread policy of withholding evidence from criminal defendants to allegedly protect the identity of confidential informants, which he described as effectively “impair[ing] a defendant's ability to make an intelligent choice regarding his jury trial rights.” However, because counsel watched the videotape, the State provided still photographs to Petitioner, and the evidence was not exculpatory, the PCR judge found that Petitioner could not demonstrate that he was prejudiced by not watching the videotape himself.

Issue

Does probative evidence in the record support the PCR court's finding that counsel was not ineffective, even though Petitioner was not provided the opportunity to watch the videotape prior to his guilty plea?

Standard of Review

In PCR proceedings, the applicant bears the burden of proving the allegations contained in his application. Butler v. State, 286 S.C. 441, 442, 334 S.E.2d 813, 814 (1985) (citation omitted). On appeal, the PCR court's ruling should be upheld if it is supported by “any evidence” of probative value in the record. Cherry v. State, 300 S.C. 115, 119, 386 S.E.2d 624, 626 (1989) (quoting Webb v. State, 281 S.C. 237, 314 S.E.2d 839 (1984)). However, reversal is appropriate where the PCR court's decision is controlled by an error of law. Suber v. State, 371 S.C. 554, 558–59, 640 S.E.2d 884, 886 (2007) (citation omitted). “This Court gives great deference to the [PCR] court's findings of fact and conclusions of law.” Dempsey v. State, 363 S.C. 365, 368, 610 S.E.2d 812, 814 (2005) (citation omitted).

Law/Analysis

Petitioner contends that because he was not provided the opportunity to view the videotape recording of the drug transaction forming the basis of his convictions, he did not enter his guilty plea freely, voluntarily, and knowingly, and as a result, his counsel was ineffective. We disagree.

A criminal defendant is guaranteed the right to effective assistance of counsel under the Sixth Amendment to the United States Constitution. U.S. Const. amend. VI; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “Where allegations of ineffective assistance of counsel are made, the question becomes, ‘whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ ” Butler, 286 S.C. at 442, 334 S.E.2d at 814 (quoting Strickland, 466 U.S. at 686, 104 S.Ct. 2052). As such, courts evaluate allegations of ineffective assistance of counsel using a two-pronged test. Cherry, 300 S.C. at 117, 386 S.E.2d at 625 (citing Strickland, 466 U.S. at 668, 104 S.Ct. 2052). First, the applicant must demonstrate counsel's representation was deficient, which is measured by an objective standard of reasonableness. Strickland, 466 U.S. at 687–88, 104 S.Ct. 2052. “Under this prong, ‘[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms.’ ” Cherry, 300 S.C. at 117, 386 S.E.2d at 625 (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). Second, the applicant must demonstrate he was prejudiced by counsel's performance in such a manner that, but for counsel's error, there is a reasonable probability the result of the proceedings would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.

The Strickland test operates similarly when an applicant claims counsel was ineffective in the context of a guilty plea. Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). In the guilty plea context, the inquiry with respect to the counsel's alleged deficiency turns on whether the plea was voluntarily, knowingly, and intelligently entered. Anderson v. State, 342 S.C. 54, 57, 535 S.E.2d 649, 651 (2000). Furthermore, “[t]he second, or ‘prejudice,’ requirement ... focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process.” Hill, 474 U.S. at 59, 106 S.Ct. 366. Therefore,

A defendant who enters a plea on the advice of counsel may only attack the voluntary and intelligent character of the plea by showing that counsel's representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's errors, the defendant would not have pled guilty, but would have insisted on going to trial.

Holden, 393 S.C. at 572, 713 S.E.2d at 615 (citation omitted). “There is a strong presumption that counsel rendered...