Legge v. State
| Decision Date | 01 April 2002 |
| Docket Number | No. 25433.,25433. |
| Citation | 349 S.C. 222,562 S.E.2d 618 |
| Parties | Ronald Wilson LEGGE, Petitioner, v. STATE of South Carolina, Respondent. |
| Court | South Carolina Supreme Court |
Timothy Edward Meacham, of Jebaily, Glass & Meacham P.A., of Florence, for petitioner.
Attorney General Charles M. Condon, Chief Deputy Attorney General, John W. McIntosh, Assistant Deputy Attorney General, B. Allen Bullard, and Assistant Attorney General W. Bryan Dukes, all of Columbia, for respondent.
We granted this petition for a writ of certiorari to determine whether the post-conviction relief (PCR) court erred by finding petitioner had received ineffective assistance of appellate counsel. We reverse.
Petitioner was convicted of one count of criminal sexual conduct with a minor (CSC) and one count of a lewd act on a minor. He was sentenced to respective imprisonment terms of fifteen years and five years, to be served concurrently. On direct appeal, the Court of Appeals affirmed his convictions. State v. Legge, Op. No. 95-UP-225 (S.C. Ct.App. filed July 25, 1995). We denied a petition for a writ of certiorari from that decision.
Petitioner then filed an application for post-conviction relief. After a hearing, the PCR court found appellate counsel ineffective for failing to raise an issue on appeal. The PCR court granted petitioner a review of the issue pursuant to White v. State, 263 S.C. 110, 208 S.E.2d 35 (1974).1 Petitioner's remaining allegations were denied.
Whether appellate counsel was ineffective for failing to raise an issue on appeal regarding testimony of petitioner's lack of remorse? 2
For petitioner to be granted PCR as a result of ineffective assistance of counsel, he must show both: (1) that his counsel failed to render reasonably effective assistance under prevailing professional norms, and (2) that he was prejudiced by his counsel's ineffective assistance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Brown v. State, 340 S.C. 590, 533 S.E.2d 308 (2000). Appellate counsel was not ineffective for failing to raise the lack of remorse issue. Had appellate counsel raised the issue, it would not have been preserved for the appellate court's review. See State v. Hicks, 330 S.C. 207, 499 S.E.2d 209,cert. denied, 525 U.S. 1022, 119 S.Ct. 552, 142 L.Ed.2d 459 (1998) (); State v. Dickman, 341 S.C. 293, 534 S.E.2d 268 (2000) ().
At trial, trial counsel objected to Detective McPherson's testimony on the ground that he was not competent to give testimony on petitioner's demeanor and on Miranda3 grounds.4 However, at the PCR hearing, petitioner stated he wanted appellate counsel to argue on appeal that the testimony should have been objected to because the testimony was an attempt to show petitioner lacked remorse. Because the issue would not have been preserved for appeal, appellate counsel cannot be ineffective for failing to raise the issue.
Accordingly, we reverse the PCR court's grant of relief.5
REVERSED.
1. We note the PCR court's grant of the issue pursuant to White v. State is in error because petitioner in fact had an appeal and, as such was not denied his right to an appeal. White v. State is inapplicable because it provides the right to a belated appeal when the applicant did not knowingly and intelligently waive his right to an appeal. The State, however, did not raise this issue.
2. The testimony of which petitioner complains follows:
Detective Ken McPherson: I advised [petitioner] that [the child] had told me that he had been sexually assaulted and that he had named him ... as the perpetrator.
Solicitor: ... what reaction, if any, did you observe from [petitioner]?
McPherson: He said that he didn't do it but he would hope that we would find out who did.
Solicitor: And what concerns, if any did [petitioner] register regarding the child's sexual abuse?
McPherson: He showed no concern towards his child.
4. Defense counsel's Miranda objection was based on the allegation that the testimony was a comment on p...
To continue reading
Request your trial
-
Elam v. SOUTH CAROLINA DEPT. OF TRANSP.
... ... over months because "[t]here must be finality, a time when the case in the trial court is really over and the loser must appeal or give up"); State ex rel. Douglas v. Bible Baptist Church of Lincoln, 218 Neb. 307, 353 N.W.2d 20 (1984) (in case involving successive written motions, appeal was ... ...
-
Collins Music Co., Inc. v. IGT
... ... State, 309 S.C. 157, 172, 420 S.E.2d 834, 842 (1992)(quoting Budinich v. Becton Dickinson and Co., 486 U.S. 196, 200, 108 S.Ct. 1717, 100 L.Ed.2d 178 ... ...
-
Cade v. State
... ... did an outstanding job ... in preserving these issues, ” we are of a different ... opinion. These issues were not preserved, and, because they ... were not, appellate counsel cannot be faulted for not having ... raised them before the court of appeals. [4] Legge v ... State, 349 S.C. 222, 225, 562 S.E.2d 618, 620 (2002); ... State v. Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691, ... 693-94 (2003) (In order for an issue to be preserved for ... appellate review, it must have been raised and ruled upon by ... the trial judge.”) ... ...
-
Gilchrist v. State
...First, appellate counsel is not ineffective for failing to raise on appeal an issue that was not preserved for review. Legge v. State, 349 S.C. 222, 562 S.E.2d 618 (2002). We find trial counsel's submission of the request to charge, without any further explanation of his point, was insuffic......