Jordan v. State, No. 27337.

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtJustice KITTREDGE.
Citation752 S.E.2d 538,406 S.C. 443
PartiesRichard G. JORDAN, Petitioner, v. STATE of South Carolina, Respondent. Appellate Case No. 2010–166367.
Decision Date11 December 2013
Docket NumberNo. 27337.

406 S.C. 443
752 S.E.2d 538

Richard G. JORDAN, Petitioner,
v.
STATE of South Carolina, Respondent.

Appellate Case No. 2010–166367.

No. 27337.

Supreme Court of South Carolina.

Submitted Oct. 15, 2013.
Decided Dec. 11, 2013.


[752 S.E.2d 539]


Appellate Defender Robert M. Pachak of Columbia, for Petitioner.

Attorney General Alan McCrory Wilson, Assistant Attorney General Megan E. Harrigan, both of Columbia, for Respondent.


Justice KITTREDGE.

In this post-conviction relief (PCR) case, the Court issued a writ of certiorari to review the denial of Petitioner Richard G. Jordan's application for relief. The PCR court dismissed Petitioner's PCR application, finding Petitioner failed to establish trial counsel had an actual conflict of interest. We reverse and remand to the court of general sessions for a new trial.

I.

In September 2003, a confidential informant notified law enforcement that Cynthia Summers, Petitioner's then-girlfriend, was manufacturing methamphetamine in a camper in Richland County. The informant did not give an address for the camper but provided directions to it, and police officers promptly began an investigation.

Richland County Investigator Robert Crane was familiar with Summers after previously executing a search warrant for methamphetamine at her home. Investigator Crane followed the informant's directions and was able to locate the camper. Upon arriving at the camper, Investigator Crane realized that a Richland County evidence technician (“neighbor”) lived next door to the suspect camper.

The next morning, officers returned to the location and observed Summers at the camper for approximately forty-five minutes. When Summers departed, the officers conducted a traffic stop. No drugs were found during the traffic stop; however, officers did note that the passenger, Willie Hutchinson, had sores on his arms consistent with chemical burns from the manufacture of methamphetamine.

Law enforcement then interviewed the neighbor. The neighbor informed officers that the camper had an exhaust fan that ran at all times, several propane tanks on the premises, and a great deal of suspicious vehicle traffic. With the neighbor's consent, the officers placed video equipment in the neighbor's home to watch the suspect camper over a period of ten days. Petitioner frequented the camper, and he was the only person seen coming to the camper.

Based on the evidence they had gathered, police officers obtained a search warrant for the camper. During the search, officers found methamphetamine, drug paraphernalia, several firearms, and other items indicative of the manufacture of methamphetamine. Officers secured a second search warrant for a storage room on the premises and discovered an additional 417.3 grams of methamphetamine.

Petitioner was arrested and indicted for possession with intent to distribute methamphetamine and trafficking in methamphetamine. At the suggestion of Summers, Petitioner retained Harry Clayton DePew 1 to represent him on the methamphetamine charges. DePew was then representing Summers on an unrelated Lexington County

[752 S.E.2d 540]

charge. DePew did not inform the trial court at any time that he represented both Petitioner and Summers.

At trial, evidence was introduced pointing to Summers' involvement with the methamphetamine lab operation. So strong was the evidence of Summers' involvement that the trial court invited Petitioner to present evidence as to Summers' third-party guilt.2 DePew, however, did not present any evidence to incriminate Summers, though Petitioner testified at the PCR hearing that he had several witnesses that were prepared to testify as to Summers' guilt. Petitioner was convicted on both charges and sentenced to twenty-five years in prison.

Thereafter, Petitioner sought PCR alleging ineffective assistance of counsel because DePew's dual representation of Petitioner and Summers constituted an actual conflict of interest. During the PCR hearing, Petitioner testified that he was not informed of the conflict of interest, did not waive the conflict of interest, and wanted to present a third-party guilt defense as to Summers. Upon examination by PCR counsel, DePew testified as follows:

Q: And if you could explain to me, did you not feel that there was a conflict in presenting a third-party guilt claim that was based on a current client of yours?

A: I had discussed that with [Petitioner] and [Summers]. They were living together at the time and, as I said, he expressed the opinion that he was aware of everything she was doing. And he even spoke with her about what she was doing in Lexington County.

Q: But, you as his attorney, you took the opportunity to explain to him that their interests were adverse and that a conflict would be there if you were representing her on drug charges and then trying to make her out to be his third-party guilt defense. Did you explain that to him?

A: I don't think it was explained in so many words. I mentioned items with him regarding her regarding him [sic], but I do believe he was blinded by love.

Q: Did you put the Court on notice that you had active representation of Ms. Summers at the time you were going to use the third-party guilt claim?

A: No, I did not.

Following the hearing, the PCR judge dismissed Petitioner's PCR application, holding there was no actual conflict of interest and concluding Petitioner failed to show deficient performance and resulting prejudice. Alternatively, the PCR judge found that Petitioner was made aware of all potential conflicts of interest and had waived any such conflicts, though not in writing...

To continue reading

Request your trial
24 practice notes
  • Smalls v. State, Appellate Case No. 2016-001079
    • United States
    • United States State Supreme Court of South Carolina
    • February 7, 2018
    ...is evidence in the record to support them. Sellner v. State , 416 S.C. 606, 610, 787 S.E.2d 525, 527 (2016) (citing Jordan v. State , 406 S.C. 443, 448, 752 S.E.2d 538, 540 (2013) ). We review questions of law de novo, 422 S.C. 181with no deference to trial courts.2 Sellner , 416 S.C. at 61......
  • Winkler v. State, Appellate Case No. 2014-000904
    • United States
    • United States State Supreme Court of South Carolina
    • November 23, 2016
    ...PCR court's conclusion was an error of law, and the error controlled its finding as to trial counsel's performance. See Jordan v. State , 406 S.C. 443, 448, 752 S.E.2d 538, 540 (2013) (stating we "will reverse the decision of the PCR court when it is controlled by an error of law"); Edwards......
  • Winkler v. State, Appellate Case No. 2014-000904
    • United States
    • United States State Supreme Court of South Carolina
    • November 23, 2016
    ...PCR court's conclusion was an error of law, and the error controlled its finding as to trial counsel's performance. See Jordan v. State, 406 S.C. 443, 448, 752 S.E.2d 538, 540 (2013) (stating we "will reverse the decision of the PCR court when it is controlled by an error of law"); Edwards ......
  • Milledge v. State, Appellate Case No. 2014-002386
    • United States
    • United States State Supreme Court of South Carolina
    • March 14, 2018
    ...to which we apply the deferential standard of review applicable to a PCR court's factual findings. See generally Jordan v. State , 406 S.C. 443, 448, 752 S.E.2d 538, 540 (2013) ("This Court gives deference to the PCR judge's findings of fact, and ‘will uphold the findings of the PCR court w......
  • Request a trial to view additional results
24 cases
  • Smalls v. State, Appellate Case No. 2016-001079
    • United States
    • United States State Supreme Court of South Carolina
    • February 7, 2018
    ...is evidence in the record to support them. Sellner v. State , 416 S.C. 606, 610, 787 S.E.2d 525, 527 (2016) (citing Jordan v. State , 406 S.C. 443, 448, 752 S.E.2d 538, 540 (2013) ). We review questions of law de novo, 422 S.C. 181with no deference to trial courts.2 Sellner , 416 S.C. at 61......
  • Winkler v. State, Appellate Case No. 2014-000904
    • United States
    • United States State Supreme Court of South Carolina
    • November 23, 2016
    ...PCR court's conclusion was an error of law, and the error controlled its finding as to trial counsel's performance. See Jordan v. State , 406 S.C. 443, 448, 752 S.E.2d 538, 540 (2013) (stating we "will reverse the decision of the PCR court when it is controlled by an error of law"); Edwards......
  • Winkler v. State, Appellate Case No. 2014-000904
    • United States
    • United States State Supreme Court of South Carolina
    • November 23, 2016
    ...PCR court's conclusion was an error of law, and the error controlled its finding as to trial counsel's performance. See Jordan v. State, 406 S.C. 443, 448, 752 S.E.2d 538, 540 (2013) (stating we "will reverse the decision of the PCR court when it is controlled by an error of law"); Edwards ......
  • Milledge v. State, Appellate Case No. 2014-002386
    • United States
    • United States State Supreme Court of South Carolina
    • March 14, 2018
    ...to which we apply the deferential standard of review applicable to a PCR court's factual findings. See generally Jordan v. State , 406 S.C. 443, 448, 752 S.E.2d 538, 540 (2013) ("This Court gives deference to the PCR judge's findings of fact, and ‘will uphold the findings of the PCR court w......
  • 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