Moorehead v. State
| Decision Date | 12 January 1998 |
| Docket Number | No. 24742,24742 |
| Court | South Carolina Supreme Court |
| Parties | Gary MOOREHEAD, Respondent, v. STATE of South Carolina, Petitioner. |
Assistant Appellate Defender Lisa T. Gregory, of S.C. Office of Appellate Defense, Columbia, for respondent.
On advice of counsel, respondent pled guilty to two separate charges arising from different facts: criminal sexual conduct (CSC) third degree and unlawful use of telephone. No direct appeal was taken. We granted the State's petition for a writ of certiorari to review the grant of post-conviction relief (PCR) and now reverse.
The following facts were presented at the plea hearing by the assistant solicitor:
Your Honor, as to the unlawful use of telephone, [respondent] called the victim, who is his ex, who is his ex-girlfriend, and harassed and threatened her. One call was overheard by a Lex Morgan, a police officer, who told [respondent] not to call anymore, but he continued to call her....
As to the criminal sexual conduct, the victim is T.G., twelve years old. She was riding around with some friends very late at night on March 4th and went to the home of Mr. Moorehead's brother, [Terry] Moorehead, to ask if she could spend the night because she was in trouble with her mother. She knew Mr. Moorehead's brother, who is deaf. She had told, at the time when she met Mr. Moorehead, she told him she was fifteen. He told her she could sleep in his room, so she went into his room. She fell asleep. When she woke up, he was also awake. They began kissing, and he took off her clothes and had sex with her. She was menstruating at the time. She tells me that it's her understanding that he did use a condom. Your Honor, she said there was no consent. Afterwards, she got on the floor, went to sleep, and Mr. Moorehead slept in the bed. She woke up at seven a.m. and went home. She told her mother three days later. Mr. Moorehead, when questioned by the police, said she had never been in his house; however, she could describe the bedroom. They did find what appeared to be blood stains on the mattress and took them to SLED.
Respondent's sentence on the CSC charge was ten years, suspended after seven, and five years probation. At the PCR hearing, respondent testified he pled guilty to the CSC charge on counsel's advice that he would receive only probation. He claimed he answered the trial judge's questions regarding the plea affirmatively because
I done what [counsel] told me to do.... He said the judge knew about all of this and that's how things was done around here. That's why I told the judge that, hoping that--well, knowing that I was going to get probation, I thought, instead of being sent to the Department of Corrections.
Counsel, on the other hand, testified he never promised respondent a straight probationary sentence although they did discuss probation to follow his active jail time as part of the plea negotiations.
The PCR judge found counsel was ineffective for advising respondent he would receive only probation and that respondent would not have pled guilty but for this erroneous advice. This was error.
When considering an allegation on PCR that a guilty plea was based on inaccurate advice of counsel, the transcript of the guilty plea hearing will be considered to determine whether any possible error by counsel was cured by the information conveyed at the plea hearing. Wolfe v. State, 326 S.C. 158, 485 S.E.2d 367 (1997). At the plea hearing, the trial judge asked respondent if he understood that the possible sentence for the CSC charge was ten years and respondent answered that he did. The trial judge also summarized the plea agreement on the record before accepting respondent's plea and respondent answered that he understood it. Even if trial counsel erroneously informed respondent that his sentence would Further, respondent's explanation that he answered the trial judge affirmatively on counsel's alleged advice that the questions were meaningless does not support the grant of PCR. Id. ().
be probationary, any misconception was cured at the plea hearing.
We conclude there is no evidence to...
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