Mangal v. State

• Decision Date: 19 July 2017
• Docket Number: Opinion No. 27726.
• Citation: 421 S.C. 85,805 S.E.2d 568
• Parties: Farid A. MANGAL, Respondent, v. STATE of South Carolina, Petitioner.
• Court: South Carolina Supreme Court

421 S.C. 85

805 S.E.2d 568

Farid A. MANGAL, Respondent,

v.STATE of South Carolina, Petitioner.

Opinion No. 27726.

Supreme Court of South Carolina.

Heard December 14, 2016

Filed July 19, 2017

Withdrawn, Substituted, and Refiled October 4, 2017

Attorney GeneralAlan Wilson and Assistant Attorney GeneralAlicia A. Olive, both of Columbia, for Petitioner.

John R. Ferguson, of Cox Ferguson & Wham, LLC, of Laurens, and C. Rauch Wise, of Greenwood, for Respondent.

Solicitor J. Strom Thurmond, Solicitor Barry J. Barnette and Amie Clifford, all of Columbia, for Amicus Curiae Solicitors' Association of South Carolina, Inc.

Suzanne B. Cole, of Spartanburg and Candice A. Lively, of Chester, for Amicus Curiae South Carolina Network of Children's Advocacy Centers and University of South Carolina Children's Law Center.

JUSTICE FEW :

Farid A. Mangal was convicted of criminal sexual conduct with a minor, lewd act upon a child, and incest.After his convictions were affirmed, Mangal filed this action for post-conviction relief (PCR).He argues trial counsel was ineffective for not objecting to improper bolstering testimony.The PCR court refused to rule on the improper bolstering issue because the court found Mangal did not raise it in his PCR application or at the PCR hearing.The court of appeals reversed, finding the improper bolstering issue was raised to the PCR court.The court of appeals then proceeded to grant PCR on the merits of the issue before it was considered by the PCR court.We reverse the court of appeals and reinstate the PCR court's order.

I.Facts and Procedural History

The facts surrounding Mangal's sex crimes are set forth in detail in the court of appeals' opinion.Mangal v. State , 415 S.C. 310, 781 S.E.2d 732(Ct. App.2015).Focusing on those facts relevant to the specific issues in this appeal, the victim—Mangal's nineteen- year-old daughter—testified Mangal had been sexually assaulting her since she was ten years old.She described where, when, and how it happened.On cross-examination, trial counsel questioned the victim about inconsistencies in her testimony and suggested she had a motive to lie about the sexual abuse—to gain freedom from Mangal's strict parenting.Mangal testified in his defense and claimed the victim and her mother fabricated the allegations.

Mangal's improper bolstering claim is based on the testimony of the State's witness Nancy Henderson, M.D., a pediatrician the trial court qualified as an expert "in the examination, diagnosis, and treatment of child sex abuse."Dr. Henderson testified she conducted a physical examination of the victim and discovered her "hymen tissue looked very, very normal" except for a "marked narrowing" at one spot.¹Dr. Henderson concluded this was "a sign of some type of penetration."She then testified the victim had been "sexually abused," and that her opinion was "based on the history [the victim] shared with me and based on my examination."Trial counsel cross-examined Dr. Henderson in part by emphasizing her reliance on the victim's history—as opposed to the physical examination—in forming her opinion that the hymen injury resulted from sexual abuse.

The jury convicted Mangal of criminal sexual conduct with a minor in the first degree, criminal sexual conduct with a minor in the second degree (two counts), lewd act upon a child,² and incest.The trial court sentenced Mangal to thirty years in prison, and the court of appeals affirmed his convictions.State v. Mangal , Op.No. 2009-UP-113, 2009 WL 9528831(S.C. Ct. App. filed March 4, 2009).

Mangal filed his PCR application without the assistance of counsel.³As required by section 17-27-50 of the South Carolina Code(2014)andRule 71.1(b) of the South Carolina Rules of Civil Procedure, he made the application on the form prescribed by this Court.See Form 5, SCRCP Appendix of Forms.In the blank requiring the applicant to "State concisely the grounds on which you base your allegation that you are being held in custody unlawfully," Mangal handwrote, (a)"ineffective assistance of counsel trial,"(b)"prejudiceness,"(c)"ineffective assistance of appellate counsel."In the blank requiring the applicant to "State concisely and in the same order the facts which support each of the grounds set out [above]," Mangal handwrote (a)"failure to preserve direct appeal issue,"(b)"failed to investigate documentary evidence and witnesses," and (c)"fail to make an additional object [ion] to the sufficiency of the curative charge or moved for a mistrial."He also wrote "will amend pursuant to SCRCP, Rule 71.1" to include "new grounds upon appt. of PCR counsel," in apparent recognition that Rule 71.1(d) requires, "Counsel shall insure that all available grounds for relief are included in the application and shall amend the application if necessary."

Mangal was subsequently appointed counsel, and later retained a different attorney who represented him at the PCR trial, but no written amendment to Mangal's original application was filed.Mangal's counsel began the PCR hearing by calling witnesses, giving no indication to the PCR courthe intended to raise any issues not set forth in the original application.During his presentation of evidence, PCR counsel asked trial counsel why he did not object to "improper bolstering" testimony given by Dr. Henderson, and the State briefly cross-examined him on the same subject.However, PCR counsel did not mention any intent to make an ineffective assistance claim based on a failure to object to improper bolstering testimony until the end of the hearing.At that point, he argued trial counsel was ineffective in several respects not mentioned in the original application, including for not objecting to the alleged improper bolstering testimony of Dr. Henderson.

The PCR court denied relief in a written order without addressing the improper bolstering issue.Mangal made a motion under Rule 59(e) of the South Carolina Rules of Civil Procedure to alter or amend the judgment, arguing the PCR court should have addressed the improper bolstering issue.The PCR court denied the motion and held the improper bolstering issue was "not presented to the court in the application or in an amendment, and no testimonial evidence from the applicant was presented in support of these allegations."

Mangal filed a petition for a writ of certiorari seeking review of the denial of PCR, which we transferred to the court of appeals pursuant to Rule 243(l) of the South Carolina Appellate Court Rules.Mangal argued trial counsel was ineffective for not objecting to Dr. Henderson's testimony and the PCR court erred by not ruling on the issue.The court of appeals agreed the PCR court erred in not ruling on the improper bolstering issue.Mangal , 415 S.C. at 317-18, 781 S.E.2d at 735-36.The court of appeals then addressed the merits of the issue, finding Dr. Henderson's testimony was improper bolstering and counsel was ineffective for not objecting to it.415 S.C. at 319-20, 781 S.E.2d at 736-37.The court of appeals remanded to the court of general sessions for a new trial.415 S.C. at 319-20, 781 S.E.2d at 737.The State filed a petition for a writ of certiorari for review of the court of appeals' decision, which we granted.

II.Standard of Review

Our standard of review in PCR cases depends on the specific issue before us.We defer to a PCR court's findings of fact and will uphold them if there is any evidence in the record to support them.Sellner v. State , 416 S.C. 606, 610, 787 S.E.2d 525, 527(2016)(citingJordan v. State , 406 S.C. 443, 448, 752 S.E.2d 538, 540(2013) ).We do not defer to a PCR court's rulings on questions of law.⁴"Questions of law are reviewed de novo, and we will reverse the PCR court's decision when it is controlled by an error of law."Sellner , 416 S.C. at 610, 787 S.E.2d at 527(citingJamison v. State , 410 S.C. 456, 465, 765 S.E.2d 123, 127(2014) ).On review of a PCR court's resolution of procedural questions arising under the Post-Conviction Procedure Act or the South Carolina Rules of Civil Procedure, we apply an abuse of discretion standard.SeeWinkler v. State , 418 S.C. 643, 663, 795 S.E.2d 686, 697(2016)(applying an abuse of discretion standard to the trial court's decision on a motion for a continuance);Sweet v. State , 255 S.C. 293, 296, 178 S.E.2d 657, 658(1971)(same).

III.Presentation of the Improper Bolstering Issue

We first address the court of appeals' ruling that the improper bolstering issue was presented to the PCR court, and thus the PCR court erred in not ruling on it.We find the PCR court acted within its discretion in refusing to address the issue.First, the written application makes no mention of a claim based on improper bolstering, and no amendment to the written application was ever made.Second, PCR counsel began the hearing without mentioning there would be any additional claims for ineffective counsel beyond those listed in the original application.Third, even when PCR counsel questioned trial counsel on why he did not object to Dr. Henderson's testimony, he did not inform the PCR courthe would make a claim for ineffectiveness based on the failure to make an objection.

Fourth, when PCR counsel did finally mention an ineffectiveness claim based on the testimony of Dr. Henderson, he did not make the claim with specificity.In what was essentially a closing argument, PCR counsel argued for relief on several unrelated grounds, and then stated,

We also brought up the issue of Dr. Henderson.I believe in this casewe have no case law specifically on allowing an expert to say in her opinion abuse occurred.She wasn't asked that question.She gave that answer.It did not receive an objection which we believe it should have.It was improper vouching.

There was no further discussion of any claim for ineffectiveness based on trial counsel not objecting to Dr. Henderson's testimony.

To the extent PCR counsel's brief statement constitutes a claim for...