Murdock v. State, 23766
| Decision Date | 21 December 1992 |
| Docket Number | No. 23766,23766 |
| Citation | 311 S.C. 16,426 S.E.2d 740 |
| Parties | Teresa L. MURDOCK, Petitioner, v. STATE of South Carolina, Respondent. |
| Court | South Carolina Supreme Court |
Assistant Appellate Defender Robert M. Pachak of S.C. Office of Appellate Defense, Columbia, for petitioner.
Attorney Gen. T. Travis Medlock, Chief Deputy Atty. Gen. Donald J. Zelenka, and Asst. Atty. Gen. Lisa G. Jefferson, Columbia, for respondent.
We granted petitioner Teresa L. Murdock's petition for writ of certiorari following the denial of her application for post-conviction relief (PCR). Petitioner alleges she entered her guilty plea upon the erroneous advice of counsel. The PCR judge found counsel was not ineffective and petitioner was not prejudiced. We reverse. The sole issue is whether petitioner received ineffective assistance of counsel.
Petitioner was stopped on October 7, 1989, because she was driving in an erratic manner. She was arrested for driving under the influence and driving under suspension (DUS). Pursuant to the arrest, her car was searched and three bags of what was believed to be cocaine and 81 hits of what was believed to be LSD were found. Subsequently, SLED tested the substances and determined that they are not controlled substances.
Petitioner was indicted for two counts of possession of a counterfeit substance with intent to distribute and DUS. She was also indicted for a second DUS offense which took place on April 3, 1990. Petitioner pled guilty to two counts of DUS and two counts of possession of a counterfeit substance with intent to distribute and was sentenced to two sixty-day imprisonments for the DUS counts and two five-year terms for the possession counts to run concurrently. Petitioner did not make a direct appeal.
This case revolves around the confusion between "counterfeit" and "imitation" substances. Petitioner was indicted for two counts of possession with intent to distribute a counterfeit substance.
"Counterfeit substance" means a controlled substance which, or the container or labeling of which, without authorization, bears the trademark, trade name, or other identifying mark, imprint, number, or device, or any likeness thereof, of a manufacturer, distributor, or dispenser other than the person who in fact manufactured, distributed, or dispenses such substance and which thereby falsely purports or is represented to be the product of, or to have been distributed by, such other manufacturer, distributor, or dispenser.
S.C.Code Ann. § 44-53-110 (1985).
The drugs found in petitioner's possession were not counterfeit drugs. They were imitation drugs.
"Imitation controlled substance" means a noncontrolled substance which is represented to be a controlled substance and is packaged in a manner normally used for the distribution or delivery of an illegal controlled substance.
S.C.Code Ann. § 44-53-110 (1985). We take this opportunity to clarify the practical difference between counterfeit and imitation substances. While there may be exceptions, such as when these substances are legally used for legitimate medical purposes, ordinarily there is no offense involving counterfeit LSD or cocaine, as these drugs are typically produced illegally and, therefore, usually do not have a trademark or label of a manufacturer. 1
Under our current statutes, it is not illegal to merely possess counterfeit drugs. S.C.Code Ann. § 44-53-370(a)(2) (1985). After an unsuccessful attempt to exclude evidence offered to prove intent to distribute, upon counsel's advice, petitioner pled guilty to possession of a counterfeit substance with intent to distribute. Petitioner, however, did not commit any offense because it is not a criminal offense to possess imitation drugs with the intent to distribute. It is illegal only to actually distribute or deliver imitation drugs. S.C.Code Ann. § 44-53-390(a)(6) (1985). 2
This Court's review of PCR matters is limited to a...
To continue reading
Request your trial
-
State v. LARRY DEAN McCLUNEY, 3742.
...failed to prove the criminal offense of trafficking cocaine. Defense counsel contended that our Supreme Court, in Murdock v. State, 311 S.C. 16, 426 S.E.2d 740 (1992), held "it is not illegal ... to possess imitation drugs with intent to distribute." The trial judge denied the motion for a ......
-
State v. McCluney, Opinion No. 3742 (S.C. App. 2/2/2004), Opinion No. 3742.
...failed to prove the criminal offense of trafficking cocaine. Defense counsel contended that our Supreme Court, in Murdock v. State, 311 S.C. 16, 426 S.E.2d 740 (1992), held "it is not illegal . . . to possess imitation drugs with intent to distribute." The trial judge denied the motion for ......
-
State v. McCluney
...that purchasing imitation cocaine does not constitute trafficking. In doing so, the court relied heavily on Murdock v. State of South Carolina, 311 S.C. 16, 426 S.E.2d 740 (1992), which is irrelevant to Respondent's The court should have focused on the State's evidence that Respondent consp......