Odom v. State
Citation | 523 S.E.2d 753,337 S.C. 256 |
Decision Date | 15 November 1999 |
Docket Number | No. 25015.,25015. |
Parties | Herbert Wayne ODOM, Petitioner, v. STATE of South Carolina, Respondent. |
Court | United States State Supreme Court of South Carolina |
Assistant Appellate Defender M. Anne Pearce, of South Carolina Office of Appellate Defense, of Columbia, for petitioner.
Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Teresa A. Knox, and Assistant Attorney General Howard L. Steinberg, all of Columbia, for respondent.
Herbert Wayne Odom ("Odom") appeals the post-conviction relief court's order of dismissal. We reverse and remand.
On August 31, 1993, Odom was arrested for distributing marijuana to an undercover officer within a half mile from the Busy Bee Day Care Center in Sumter County. A jury convicted Odom of one count of distribution on December 1, 1993. The presiding judge imposed a five year sentence and a fine of $5,000. On December 3, 1993, Odom pled guilty to a second count of distribution and the presiding judge imposed a ten year, concurrent sentence for a third offense. Legal counsel represented Odom at both the trial and guilty plea. Odom did not directly appeal either conviction.
On December 18, 1995, Odom filed a pro se post-conviction relief ("PCR") application alleging ineffective assistance of counsel. The PCR judge summarily dismissed Odom's application for failing to file within the one-year statute of limitations1
Odom's first application for PCR was dismissed prior to the filing of this Court's opinion in Peloquin on April 15, 1996. In Peloquin this Court held that PCR applicants convicted before July 1, 1995, the effective date of S.C.Code Ann. § 17-27-45(A), should be allowed to file an application for PCR within one year after the effective date of the statute. Peloquin, 321 S.C. at 469, 469 S.E.2d at 606. If Odom had appealed the first PCR order dismissing his application, this Court would have reversed and remanded for an evidentiary hearing pursuant to Peloquin because Odom was convicted before July 1, 1995, and he filed his first PCR application before July 1, 1996.
On June 18, 1997, Odom filed a second pro se PCR application alleging: (1) ineffective assistance of counsel; and (2) that his first PCR application was erroneously dismissed.2 Odom argued he should be permitted to appeal the dismissal of his first PCR application pursuant to Austin v. State, 305 S.C. 453, 409 S.E.2d 395 (1991). Under Austin, a defendant can appeal a denial of a PCR application after the statute of limitations has expired if the defendant either requested and was denied an opportunity to seek appellate review, or did not knowingly and intelligently waive the right to appeal. Id.; see also King v. State, 308 S.C. 348, 417 S.E.2d 868 (1992)
.
The PCR judge summarily dismissed Odom's second PCR application for failure to comply with the one-year statute of limitations as mandated by S.C.Code Ann. § 17-27-45(A) (Supp.1998) and Peloquin v. State, 321 S.C. 468, 469 S.E.2d 606 (1996). A chronology of significant events in this case is as follows:
ISSUES
LAW/ANALYSIS
Odom argues the PCR judge erred by summarily dismissing his second PCR application which asserted a valid claim to an evidentiary hearing on his right to appellate review under Austin v. State. We agree. All applicants are entitled to a full and fair opportunity to present claims in one PCR application. Successive PCR applications and appeals are generally disfavored because they allow an applicant to receive more than "one bite at the apple as it were." Matthews v. Evatt, 105 F.3d 907, 916 (1997) (quoting Gamble v. State, 298 S.C. 176, 379 S.E.2d 118, 119 (1989)). A successive PCR application is one that raises grounds not raised in a prior application, raises grounds previously heard and determined, or raises grounds waived in prior proceedings. Carter v. State, 293 S.C. 528, 362 S.E.2d 20 (1987); see S.C.Code Ann. § 17-27-90 (1976 & Supp.1997). In order to be entitled to a successive PCR application, the applicant must establish that the grounds raised in the subsequent application could not have been raised in the previous application. Tilley v. State, 334 S.C. 24, 511 S.E.2d 689 (1999). Additionally, successive PCR applications are permitted in rare procedural circumstances. See, e.g., Case v. State, 277 S.C. 474, 289 S.E.2d 413 (1982)
( ); Carter v. State, 293 S.C. 528, 362 S.E.2d 20 (1987) ( ).
This Court has allowed successive PCR applications where the applicant has been denied complete access to the appellate process. Austin v. State, 305 S.C. 453, 409 S.E.2d 395 (1991). Under the PCR rules, an applicant is entitled to a full adjudication on the merits of the original petition, or "one bite at the apple." Aice v. State, 305 S.C. 448, 452, 409 S.E.2d 392, 395 (1991). This "bite" includes an applicant's right to appeal the denial of a PCR application, and the right to assistance of counsel in that appeal. See Aice, 305 S.C. at 448,
409 S.E.2d at 395. As a method of effectuating the purpose of Rule 71.1(g) SCRCP3 and enforcing Austin's entitlement to a PCR proceeding, this Court held Austin could attack his PCR counsel as ineffective by a petition for a writ of certiorari. Id.
417 S.E.2d at 868 ( ); Wicker v. State, 310 S.C. 8, 425 S.E.2d 25 (1992).
In this case, Odom never received a complete "bite at the apple" because both of his PCR applications were summarily dismissed before he was appointed legal counsel. An applicant has a right to an appellate counsel's assistance in seeking review of the denial of PCR. See Austin, 305 S.C. at 454,
409 S.E.2d at 396; Rule 71.1(g), SCRCP. Under the PCR rules, a court will appoint an attorney to a PCR applicant if: (1) an evidentiary hearing is required; or (2) the applicant is indigent and wants to file an appeal. See Whitehead v. State, 310 S.C. 532, 426 S.E.2d 315 (1992); Rule 71.1(d), (g), SCRCP. Since Odom filed both his PCR applications pro se, he never received the benefit of an attorney's advice. The record does hot indicate whether Odom was advised of his right to appeal or of the statute of limitation for an appeal. In order to effectuate an applicant's right to appeal a PCR dismissal, this Court will require PCR judges to advise pro se applicants of both their right to appeal, and also their right to appellate counsel when their PCR applications are summarily dismissed.
Because Odom was entitled to the assistance of appellate counsel during PCR, we reverse the PCR judge's order of dismissal and remand for an evidentiary hearing on the issue of whether Odom knowingly and intelligently waived his right to appellate counsel. Austin, 305 S.C. at 454, 409 S.E.2d at 396. Odom will be entitled to an Austin appeal if it is determined that he did not knowingly and intelligently waive his right to appellate counsel. Id. Odom can then petition for certiorari and this Court will review whether he was prejudiced by his failure to obtain review of a meritorious issue. Id.
The one-year statute of limitations for PCR applications is not applicable to appeals filed pursuant to Austin v. State. Under S.C.Code Ann. § 17-27-45(A) (Supp.1998) an application for relief must be filed "within one year after the entry of a judgment or conviction or within one year after the sending of the remittitur to the lower court from an appeal or the filing of the final decision upon an appeal, whichever is later." Austin appeals are considered "belated appeals" and are used to rectify unjust procedural defects, such as when an attorney does not...
To continue reading
Request your trial-
Protestant Episcopal Church in the Diocese of S.C. v. Episcopal Church, Appellate Case No. 2015-000622
...to allow the parties to litigate the issue. However, this flies in the face of basic appellate principles. Cf. Odom v. State, 337 S.C. 256, 261, 523 S.E.2d 753, 755 (1999) (holding successive PCR applications are disfavored because they allow the applicant more than one bite at the apple). ......
-
In re Chapman
...as providing persons committed under the Act with a right to counsel during their first habeas proceeding. Cf. Odom v. State , 337 S.C. 256, 261, 523 S.E.2d 753, 755 (1999) (explaining successive PCR applications alleging ineffective assistance of counsel are disfavored because they allow a......
-
Robertson v. State
...applicants are entitled to a full and fair opportunity to present claims in one PCR application." Odom v. State , 337 S.C. 256, 261, 523 S.E.2d 753, 755 (1999). "Successive PCR applications and appeals are generally disfavored because they allow an applicant to receive more than ‘one bite a......
-
Pettinato v. Eagleton, C.A. No. 2:05-1226 PMD RSC.
...an opportunity to seek appellate review, or did not knowingly and intelligently waive the right to appeal." Odom v. State, 337 S.C. 256, 260, 263, 523 S.E.2d 753, 755, 756 (1999) ("The one-year statute of limitations for PCR applications is not applicable to appeals filed pursuant to Austin......
-
Biting the Apple Legal and Ethical Obligations of Post-conviction Relief Counsel
...Tilley v. State, 334 S.C. 24, 511 S.E.2d 689 (1999). [9] White v. State, 263 S.C. 110, 208 S.E.2d 35 (1974). [10] Odom v. State, 337 S.C. 256, 261, 523 S.E.2d 753, 755 (1999). [11] S.C. Code Ann. § 17-27-90 (1969). [12] Austin v. State, 305 S.C. 453, 409 S.E.2d 395 (1991); Compare Arnold v.......