Background and Procedural History On September 24, 1997, in Horry County, Jenkins, his nephew, and another individual raped, beat, and robbed a waitress who was on her way to work. Jenkins and his nephew were arrested after a high speed chase. Jenkins was indicted, and on or about December 6, 2000, he pled guilty tocriminal sexual conduct (first degree), kidnapping, and armed robbery. He was represented by Orrie West, Esquire.2 Counsel filed a motion for the court to reconsider Jenkins' sentences. (App. 21). The motion was denied on April 3, 2001. (App. 24).
A direct appeal was filed by way of an Anders3 brief filed by the South Carolina Office of Appellate Defense raising the following issue:
Did the lower court commit reversible error in conducting a hearing upon the motion to reconsider sentence without ensuring that a proper record of that hearing was made by a court reporter?
Jenkins filed a pro se brief pursuant to state procedure raising the following claims:
1) Did the lower court err by sentencing appellant to imprisonment without established jurisdiction?
2) Did the sentencing judge abuse his discretion when he gave appellant a sentence that was excessive an[d] a violation of established state law?
The convictions were affirmed by the South Carolina Court of Appeals. See State v. Jenkins, Unpub.Op.No. 2002-UP-346 (S.C.Ct.App. filed May 16, 2002). The Remittitur was returned on June 3, 2002.
On June 4, 2002, Jenkins filed an application for post-conviction relief ("PCR"). (App. 26). An amended application was filed through counsel, V. Lee Moore, Esquire. (App. 43). A hearing was held on September 23, 2004. (App. 45). On November 24, 2004, the PCR court issued an order granting relief. (App. 109). The State filed a petition for writ of certiorari raising the following issue:
Did the trial court err in granting a new trial on the ground trial counsel was ineffective?
On October 19, 2006, the South Carolina Supreme Court vacated the PCR court's order and remanded the case for a full hearing. (App. 142). The Remittitur was returned on November 7, 2006. (App. 143).
A second hearing was held on October 8, 2007. (App. 144). Jenkins was represented by Barbara W. Pratt, Esquire. A lengthy order of dismissal was issued on March 13, 2008. (App. 292).
The South Carolina Commission on Indigent Defense filed a petition for writ of certiorari on Jenkins' behalf raising the following issues:
1. Did the PCR judge err in denying post-conviction relief where petitioner's guilty plea was not knowingly or voluntarily entered as the direct result of ineffective assistance of counsel in that counsel encouraged petitioner to enter guilty pleas by assuring him that he would receive concurrent sentences and that he would not be sentenced to more than thirty years?
2. Did the PCR judge err in denying post-conviction relief where the sentencing judge imposed an extreme sentence upon petitioner after receiving information regarding petitioner's participation and role in the crime only from the prosecution as the result of his attorney's ineffectively failing to make any factual argument or mitigation presentation during the plea or on reconsideration?
The petition for writ of certiorari was denied by the South Carolina Supreme Court on August 20, 2009. The Remittitur was returned on September 9, 2009.
In his present petition, Jenkins asserts he is entitled to a writ of habeas corpus on the following grounds:
Ground One: The low (sic) court committed reversible error in conducting a hearing upon the motion to reconsider sentences without ensuring that a proper record of that hearing was made by a court reporter.a. The Petitioner contends that without a transcript of the motion hearing there cannot be meaningful appellate review of the issues and arguments raised with respect to Petitioner's motion to reconsider the sentence. The lower court abused its discretion in failing to ensure that a proper record of the hearing was preserved, and petitioner has been prejudiced by the court's omission.
The Petitioner's case should be reversed and remanded for a new hearing to reconstruct the records to reconsider sentences.
Ground Two: Judicial abuse of discretion by issuance of excessive sentence.
a. The Applicant appeared before Honorable Sidney T. Floyd, presiding judge, on charges of kidnapping, 1st degree CSC, and armed robbery and these crimes were committed allegedly upon the same victim during a single incident. However, Applicant was indicted for separate offenses that were joined in the indictment and tried together because they arose of the single chain of circumstances, and were proved by the same evidence.
... Under South Carolina Code Ann. 16-3-652(1)(b), the act of Criminal Sexual Conduct in the 1st degree is proven by the offense of kidnapping and robbery which in essence means these elements of these crimes can be used to prove the other which is a violation under South Carolina Code Ann. 17-25-50... (this is cause to bring this subject up because the Applicant's sentence was excessive by law and caused prejudicial harm under recidivism laws of this State.)
The Applicant contends the Judge abused his discretion and did sentence the Applicant in violation of State law and this act alone was prejudicial to the Applicant where the conviction counts as strikes with this State and used against him as enhancement purposes where he was by law supposed to be sentenced to one offense because the elements of all of the offenses would be and are used to prove the other....
Ground Three: Court lacked jurisdiction to sentence Applicant.
a. The Applicant contends the Judge takes authority under the law and is guided by the law in all that he does and is not at liberty to go outside the law upon sentencing and lacked jurisdiction to do so. Further, the Applicant would contend that his indictment has a defect on its face. From this defect the Applicant claims he is being held unlawfully because the Court of General Sessions lacked jurisdiction over his case and Honorable Sidney T. Floyd, Presiding Judge, abused his authority and discretion when he sentenced Applicant without jurisdiction that was established by law.
... Applicant contends that the State's none compliance with their procedural rules requirement which is mandatory pertaining to the indictment itself prevented theCourt from obtaining jurisdiction to sentence and constitutes a fundamental defect which inherently results in a complete miscarriage of justice.
... Applicant never waived his right to a legal indictment and the indictment presented against him was a fraudulent document which deceived the Applicant as well as the Court and Judge that sentenced in this case.
Ground Four: Ineffective Assistance of Counsel.
a. The Applicant contends his counsel was ineffective in his case and failed to act in the best interest of his client and prejudiced him where Applicant's counsel failed to do the following:
1. Counsel was ineffective where he failed to inform the court jurisdiction over Applicant had not been properly obtained by State's failure to obey rules of criminal procedure Rule 3(c) and statute 17-28-120-150...
2. Counsel erred when he failed to research the existing law pertaining to Applicant and his sentencing phase on his charges where the crimes arose from the same event and against the same victim and the elements of these offense would and could be used to prove the others which denied the Applicant to be sentenced according to the law...
3. Counsel's errors shows he failed to properly investigate applicable law pertaining to Applicant's case and failed to investigate or obtain information from Applicant that would render such investigations unfounded and this error caused Applicant prejudice and bias which was undue in the case and cause at bar which cause the unlawful conviction and sentence.
4. Counsel was ineffective where he failed to properly place into the record the induced agreement which caused Applicant to plead and where he failed to properly inform Applicant concerning the Omnibus Crime Bill or that the judge did not have to go along with any agreements made and he further erred where he advised unprofessionally his client to answer to the questions asked of him by the court "No" concerning promises or coercion or inducements made to him outside the presence of the sentencing judge and the record.
5. Counsel was ineffective where he conspired with the Clerk of Court and the Solicitor in presenting a fraudulent indictment and signed Applicant's sentencing sheet in the furtherance thereofsignifying it to be a legal act which caused the Applicant harm for violation.
