McMillian v. State

• Decision Date: 20 July 2009
• Docket Number: No. 26688.,26688.
• Citation: 680 S.E.2d 905
• Parties: Ervin McMILLIAN, Petitioner, v. STATE of South Carolina, Respondent.
• Court: South Carolina Supreme Court

680 S.E.2d 905

Ervin McMILLIAN, Petitioner, v. STATE of South Carolina, Respondent.

No. 26688.

Supreme Court of South Carolina.

Submitted April 22, 2009.

Decided July 20, 2009.

Appellate Defender Robert M. Pachak, of South Carolina Office of Indigent Defense, of Columbia, for Petitioner.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley E. Elliott, and Assistant Attorney General Brian T. Petrano, all of Columbia, for Respondent.

Justice BEATTY.

Ervin McMillian¹ filed a petition for a writ of certiorari seeking review of an order denying his application for post-conviction relief (PCR). We granted the petition to decide the following question: Was counsel ineffective for advising McMillian that the intent to commit a crime could be inferred from the act of trespassing, such that it would provide a factual basis to support a plea to first-degree burglary? We hold counsel was not ineffective and affirm.

FACTS

McMillian was charged with first-degree burglary as a result of an incident that occurred in Columbia, South Carolina on April 10, 2004. At approximately 1:00 a.m. on that date, McMillian knocked on the door of the home of Lanelle Hicks and her adult son, Mark Hicks. Lanelle Hicks looked out a window and saw McMillian, so she went to her son's room to wake him. At that point, McMillian's knocking turned into beating on the door, and then he crashed the door open, damaging the door. As soon as McMillian entered the house, however, Mark Hicks took McMillian back outside and held him there with the assistance of a neighbor until the police arrived.

McMillian subsequently pled guilty to the charge of first-degree burglary. At the plea proceeding, McMillian stated that he "had been drinking and drugging" (with crack cocaine) the night of the incident and that he thought someone was chasing him and trying to kill him. McMillian maintained he knocked on the door of the Hicks home in order to get some help, but he admitted that he pushed the door open to get inside the home. McMillian stated he believed he "was justified in asking for help," but admitted that he "know[s] that [he] did wrong."

In contrast, the solicitor advised the plea judge that according to the victims they never heard McMillian ask for help and "he never asked for the police. All he did was kick their door in and rip the door jam off." Earlier in the plea proceeding, the solicitor noted that McMillian has a criminal record dating back to 1977 that includes prior convictions for, among other things, housebreaking, malicious injury to real property, second-degree burglary, and strong armed robbery.

In a separate sentencing proceeding, McMillian again admitted he "pushed the door open," but maintained he did not "go there with the intent to take anything." The plea judge sentenced McMillian to nineteen years in prison for first-degree burglary. No direct appeal was taken.

McMillian filed a PCR application. At the PCR hearing, McMillian asserted, among his claims, that his attorney did not explain to him that the State must prove not only that he had broken into the victims' home, but that he did so with the intent to commit a crime. He maintained he would have exercised his right to go to trial and would not have pled guilty if his attorney had properly advised him that there was no evidence to support an inference of his intent to commit a crime.

McMillian's counsel testified that she believed there was evidence of intent to commit a crime and that she had advised McMillian of all the elements of first-degree burglary. Counsel stated, "I explained that to Mr. McMillian, that the intent could be inferred from the trespassing because it was not his property, and he was illegally on someone else's property, and he broke the door down of—pushed the door open. I said that it could be inferred from—trespass could be with the intent to commit a crime. Trespass could be inferred from these actions."

Counsel stated she hired a private investigator to look into McMillian's story that he had been chased by someone and, "[a]fter a period of time ... he [McMillian] said the person kind of existed in his head, I guess." She said a neighbor saw McMillian "looking in the windows of the home prior to him just bursting in the door." Thus, she could not substantiate McMillian's claim that he believed someone was chasing him.

McMillian's PCR attorney contended McMillian's assertion that he was high on drugs and thought he was being chased when he went to the home did not support a charge of first-degree burglary, as he had no intent to commit a crime, and plea counsel erred in advising him that intent to commit a crime could be inferred from an act of trespass.

The PCR judge denied McMillian's application and found the allegation that there was no factual basis to support a plea to first-degree burglary was without merit. The judge noted: "Counsel testified that had she gone to trial, intent to commit a crime could be inferred from the act of trespassing. Applicant testified that he did not own the house and did not have permission to enter the house. Further, the evidence suggested that he physically broke the door open to enter. Accordingly, this allegation is denied and dismissed."

McMillian's attorney submitted a Johnson² petition for a writ of certiorari to review the PCR order. This Court directed the parties to brief the following issue: Was counsel ineffective in advising McMillian that the intent to commit a crime could be inferred from the act of trespassing, such that it would provide a factual basis to support a plea to first-degree burglary?

LAW/ANALYSIS

The Sixth Amendment to the United States Constitution guarantees a defendant the right to effective assistance of counsel. U.S. Const. amend. VI; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Lomax v. State, 379 S.C. 93, 665 S.E.2d 164 (2008).

The United States Supreme Court has announced a two-pronged test to establish ineffective assistance of counsel by which a PCR applicant must show (1) counsel's performance was deficient, and (2) the deficient performance prejudiced the defendant. Strickland, 466 U.S. at 687, 104 S.Ct. 2052; Cherry v. State, 300 S.C. 115, 386 S.E.2d 624 (1989). Under the second prong, the PCR applicant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

The two-part test adopted in Strickland also "applies to challenges to guilty pleas based on ineffective assistance of counsel." Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). In the context of a guilty plea, the applicant "must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 59, 106 S.Ct. 366. "The longstanding test for determining the validity of a guilty plea is `whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'" Id. at 56, 106 S.Ct. 366 (quoting North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970)).

"In a PCR proceeding, the burden is on the applicant to prove the allegations in his application." Lounds v. State, 380 S.C. 454, 460, 670 S.E.2d 646, 649 (2008). "In resolving PCR issues relating to guilty pleas, it is proper to consider the guilty plea transcript as well as the evidence at the PCR hearing." Pelzer v. State, 381 S.C. 217, 222, 672 S.E.2d 790, 792 (Ct.App.2009).

"This Court will uphold the findings of the PCR judge when there is any evidence of probative value to support them." Suber v. State, 371 S.C. 554, 558, 640 S.E.2d 884, 886 (2007). "This Court will reverse the PCR judge's decision when it is controlled by an error of law." Id. at 558-59, 640 S.E.2d at 886.

First-degree burglary is a statutory offense in South Carolina that is defined as follows: "A person is guilty of burglary in the first degree if the person enters a dwelling without consent and with intent to commit a crime in the dwelling, and" any one of several enumerated aggravating circumstances exists. S.C.Code Ann. § 16-11-311(A) (2003) (emphasis added). In this case, the aggravating circumstance is "the entering or remaining occurs in the nighttime." Id. § 16-11-311(A)(3).

On review, McMillian asserts he received ineffective assistance of counsel because "[t]here is ambiguous precedent on whether one can infer intent [to commit a crime] from trespassing."

This Court has previously held that for a charge under the old statute of housebreaking, i.e., breaking and entering into a dwelling with the intent to commit a felony or a crime of a lesser grade, found in section 1139 of the South Carolina Code of 1932, the element of intent to commit a crime of a lesser grade could be satisfied by a trespass. See State v. Christensen, 194 S.C. 131, 9 S.E.2d 555 (1940). In Christensen, "the defendant was convicted of breaking and entering with the intent to commit a misdemeanor, to wit, a trespass" after the defendant, who was an agent of the landlord, went into a tenant's dwelling with the specific intent of taking personal property to sell for overdue rent. Id. at 138, 9 S.E.2d at 558.

The Christensen Court cited a prior decision that stated the mere breaking and entering of a house is not a crime under the statute prohibiting the breaking and entering into a dwelling with the intent to commit a felony or a crime of a lesser grade,³ but found that if Christensen were guilty of a trespass, "[i]t was for the jury to say whether such breaking and entry under the circumstances constituted a crime under Section 1139 and the finding of the jury on this issue will not be disturbed by this Court." Id. at 137-39, 9 S.E.2d at 558-59.

McMillian...