Mack v. State, Appellate Case No. 2020-000329

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: CHIEF JUSTICE BEATTY
• Citation: 858 S.E.2d 160,433 S.C. 267
• Decision Date: 28 April 2021
• Docket Number: Appellate Case No. 2020-000329,Opinion No. 28025
• Parties: John Willie MACK, Sr., Petitioner, v. STATE of South Carolina, Respondent.

433 S.C. 267
858 S.E.2d 160

John Willie MACK, Sr., Petitioner,
v.
STATE of South Carolina, Respondent.

Appellate Case No. 2020-000329
Opinion No. 28025

Supreme Court of South Carolina.

Heard March 3, 2021
Filed April 28, 2021

Appellate Defender Jessica M. Saxon, of Columbia, for Petitioner.

Attorney General Alan McCrory Wilson and Assistant Attorney General Chelsey Faith Marto, both of Columbia, for Respondent.

CHIEF JUSTICE BEATTY :

858 S.E.2d 161

433 S.C. 269

We granted John Willie Mack, Sr.’s petition for a writ of certiorari to review Mack v. State , Op. No. 2019-UP-386 (S.C. Ct. App. filed Dec. 18, 2019), in which the court of appeals affirmed the PCR court's dismissal of Mack's second application for post-conviction relief ("PCR") alleging his DNA counsel failed to timely appeal the denial of his application for DNA testing under the Access to Justice Post-Conviction DNA Testing Act ("DNA Act"), S.C. Code Ann. §§ 17-28-10 to -120 (2014). Because Mack was prevented from seeking appellate review, we find it is necessary to provide an avenue of relief akin to Austin v. State , 305 S.C. 453, 409 S.E.2d 395 (1991) that affords him the opportunity to obtain belated review. Accordingly, we reverse and remand to the court of

433 S.C. 270

general sessions for an evidentiary hearing consistent with this opinion.

I. FACTS

On September 6, 2005, LaRhonda Moss ("Victim") returned to her home in Spartanburg after spending the Labor Day weekend out of town and discovered someone had broken into the house through her bedroom window. She noticed her television, laptop computer, CD changer, and certain items of jewelry were missing and other personal items were strewn throughout the home. Notably, blood was found on her entertainment center in the living room, on a bookshelf in the hallway, and on the wall near a light switch in the bedroom. Law enforcement swabbed the blood and sent the evidence to the State Law Enforcement Division ("SLED") for DNA testing. The physical items containing the blood were not collected or preserved. Photographs showing the location of the blood evidence were taken at the crime scene, but they were subsequently lost and not available at trial. Thereafter, law enforcement discovered the blood samples from Victim's home matched Mack's DNA in the Combined DNA Index System ("CODIS"), and he was indicted for first-degree burglary and grand larceny. Three years later, the State moved to compel Mack to submit to a buccal swab test to confirm the DNA match, and the circuit court granted the request. The DNA evidence found in the blood samples was the only evidence presented at trial linking Mack to the charged crimes. The case proceeded to a jury trial in February 2011, and Mack was convicted and sentenced to life imprisonment without the possibility of parole for first-degree burglary and a concurrent term of five years’ imprisonment for grand larceny. Mack appealed his convictions and sentences, and the court of appeals affirmed in State v. Mack , Op. No. 2013-UP-161, 2013 WL 8507869 (S.C. Ct. App. filed April 17, 2013).

In September 2012, while his appeal was still pending, Mack filed a pro se application for forensic DNA testing pursuant to the DNA Act. In May 2013, while his application for DNA testing was pending, Mack filed his first application for post-conviction

433 S.C. 271

relief under the Uniform Post-Conviction Procedure Act ("PCR Act"), S.C. Code Ann. §§ 17-27-10 to -160 (2014), alleging ineffective assistance of trial counsel. At the start of his PCR hearing in January 2015, he moved for a continuance in order to first obtain a ruling on his 2012 pro se application for DNA testing under the DNA Act. The PCR court denied the continuance on the ground that his ineffective assistance of trial counsel claim was not related to his request for new DNA testing, and any decision as to his PCR application would have no bearing on his request for relief under the DNA Act. In April 2015, the PCR court denied his PCR application, and Mack filed a Johnson¹ petition for a writ of certiorari to review the decision. Following an order from this Court

858 S.E.2d 162

requesting Mack to file another petition addressing a specific question, we denied the petition in February 2018.

In October 2014, a hearing was held on Mack's pro se application for post-conviction DNA testing during which he requested testing of the physical items where his blood was allegedly found rather than a retesting of the swabs collected in 2005. On May 18, 2015, the court issued an order denying his request, finding (1) testimony at trial established the blood samples taken at the crime scene were tested and matched Mack in a 1 in 1.3 quadrillion probability; (2) he did not raise the issue at trial of producing the actual items from which the blood samples were taken; and (3) the items he sought to test were previously subjected to DNA testing and further testing would not provide a more probative result. Mack received written notice of entry of the order on May 20, 2015, and his DNA counsel served a notice of appeal on the State on June 3, 2015. The court of appeals dismissed the appeal as untimely under Rule 247(b), SCACR. Mack v. State , S.C. Ct. App. Order dated July 16, 2015.

In September 2015, Mack filed a second PCR application alleging DNA counsel was ineffective for failing to timely appeal the denial of his application for post-conviction DNA testing. The State filed a return and moved to dismiss his application. Two years later, the PCR court held a hearing on

433 S.C. 272

Mack's second PCR application and dismissed with prejudice his request for relief. Specifically, the PCR court held his second PCR application failed to state a cognizable claim for relief, was barred by the statute of limitations, and was successive to his previous application under the PCR Act. The court also determined his claim was prohibited by section 17-28-60 of the DNA Act. Mack appealed the PCR court's order, and the court of appeals affirmed the dismissal of his second PCR application. Mack v. State , Op. No. 2019-UP-386, 2019 WL 6899946 (S.C. Ct. App. filed Dec. 18, 2019). Following the denial of his petition for rehearing, Mack filed a petition for a writ of certiorari to review the court of appeals’ decision, which this Court granted.

II. STANDARD OF REVIEW

"In a PCR case, this Court will uphold the PCR court's factual findings if there is any evidence of probative value in the record to support them." Thompson v. State , 423 S.C. 235, 239, 814 S.E.2d 487, 489 (2018) (citing Sellner v. State , 416 S.C. 606, 610, 787 S.E.2d 525, 527 (2016) ). "However, this Court gives no deference to the PCR court's conclusions of law, and we review those conclusions de novo." Id. (citing Jamison v. State , 410 S.C. 456, 465, 765 S.E.2d 123, 127 (2014) ).

III. DISCUSSION

Mack contends the court of appeals erred in affirming the PCR court's dismissal of his second PCR application alleging DNA counsel was ineffective for failing to timely appeal the denial of his application for post-conviction DNA testing. Specifically, he claims that filing a second PCR application was his only avenue to seek appellate review and to obtain his "one fair bite at the apple" due to DNA counsel's deficient conduct. See Odom v. State , 337 S.C. 256, 261–62, 523 S.E.2d 753, 755–56 (1999) (stating "an applicant is entitled to a full adjudication on the merits of the original petition, or ‘one bite at the apple’ " and noting Austin "never received a full procedural ‘bite at the...