Pantovich v. State, Appellate Case No. 2017-000280

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: JUSTICE HEARN
• Citation: 832 S.E.2d 596,427 S.C. 555
• Parties: Vladimir W. PANTOVICH, Respondent, v. STATE of South Carolina, Petitioner.
• Decision Date: 07 August 2019
• Docket Number: Opinion No. 27915,Appellate Case No. 2017-000280

427 S.C. 555
832 S.E.2d 596

Vladimir W. PANTOVICH, Respondent,
v.
STATE of South Carolina, Petitioner.

Appellate Case No. 2017-000280
Opinion No. 27915

Supreme Court of South Carolina.

Heard March 27, 2019
Filed August 7, 2019
Rehearing Denied September 27, 2019

Attorney General Alan McCrory Wilson and Assistant Attorney General Johnny Ellis James, Jr., both of Columbia, for Petitioner.

Appellate Defender David Alexander, of Columbia, for Respondent.

JUSTICE HEARN :

832 S.E.2d 598

427 S.C. 558

In this post-conviction relief (PCR) matter, we examine South Carolina's longstanding good character charge as we determine whether the PCR court erred when it found appellate counsel for Respondent Vladimir Pantovich ineffective for failing to raise a meritorious issue on direct appeal. The PCR court granted relief based on appellate counsel's failure to argue that the trial court erred by refusing to give such a charge, which counsel had requested at trial. While we agree that a portion of the charge Pantovich requested is improper, we nonetheless affirm because of the retrospective nature of PCR review.

FACTUAL AND PROCEDURAL BACKGROUND

Pantovich killed his former girlfriend, Sheila McPherson, with a baseball bat during an argument in his home. He hit her with the bat more than ten times, breaking ribs, damaging internal organs, and causing lacerations on her head that exposed her bare skull. Pantovich wrapped her dead body in a blanket, tied it with a rope, obscured her head with a garbage bag, and put the body and the bat in the trunk of his car. He then left his home in Georgetown County and drove toward his son's home in Taylorsville, North Carolina. On the way, he called his son to reveal what he had done. The son alerted law enforcement, and an officer stopped Pantovich as he approached Taylorsville. McPherson's body was still in the trunk in the same condition.

The State charged Pantovich with murder. At trial in 2008, he admitted he beat McPherson to death, but claimed he did so in self-defense. Pantovich explained McPherson physically abused him throughout their years-long relationship. Four days before he killed her, he and McPherson got into an argument and she left him. Two days later, Pantovich talked to her on the phone and told her he no longer wished to see her. He testified that on the evening of the killing, he came home from work around 6:00 p.m. to find McPherson in his house. She had drugs in her possession, and the toxicology report later showed she had several in her system. Pantovich told her to leave, but McPherson refused and unplugged the phone so he could not call the police. Thereafter, McPherson

427 S.C. 559

grabbed a fireplace poker and stabbed a hole in Pantovich's dinner tray while he sat in a reclining chair eating. McPherson then attacked him with the poker. Pantovich stated he was scared and tried to protect himself, so he backed toward the door to his garage and grabbed one of two baseball bats he kept there. He recalled blocking McPherson with one hand and using the other to hit her with the bat.

After Pantovich testified, he presented five character witnesses: Andy Seifert, a friend and former employer; Christine McCune, a friend of more than ten years; Maureen Moans, a friend of almost ten years; Debbie Crisman, Pantovich's ex-girlfriend; and Tammy Eschman, his former next-door neighbor. They generally testified he was kind, caring, and good with children. Several also reported witnessing McPherson act violently towards Pantovich, but they never saw him react in kind.

Pantovich submitted a written request for the trial court to charge the jury as to how it may interpret and use evidence of his good character. The written charge request stated:

An accused, when charged with a crime, has the right of proving his general good character. He may introduce evidence of his good character which is inconsistent with the crime charged against him.

Evidence of the general good character of the accused is for the purpose of showing the improbability that the defendant would have committed the crime charged. The good character of the accused is like all other evidence in the case and is entitled to such effect and weight as you, the jury, may determine.

Good character evidence alone may create a reasonable doubt as to the commission of

832 S.E.2d 599

the crime charged.¹ Thus, under some circumstances, a person might be entitled to a verdict of not guilty when his good reputation is taken into consideration even though a verdict of guilty might be authorized without the evidence of good character.

In response, the State requested a "more balanced" charge that would allow the jury to decide whether evidence constituted

427 S.C. 560

good character. After all evidence had been presented, the trial court provided a copy of its proposed jury charge, which made no mention whatsoever of good character. Pantovich reiterated his request, but the trial court denied it. The jury found him guilty of the lesser-included offense of voluntary manslaughter, and the trial court sentenced him to eighteen years in prison.

Appellate counsel filed a brief with the court of appeals pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and State v. Williams , 305 S.C. 116, 406 S.E.2d 357 (1991). Appellate counsel did not mention the trial court's denial of Pantovich's request to charge the jury on good character. The court of appeals dismissed the appeal. State v. Pantovich , Op. No. 2011-UP-275, 2011 WL 11734648 (S.C. Ct. App. filed June 8, 2011).

Pantovich subsequently filed this PCR action alleging appellate counsel was ineffective for failing to brief the trial court's refusal to give the requested jury charge. The PCR court initially found Pantovich failed to prove prejudice because he alleged no irregularity in the court of appeals' Anders procedure. We reversed, finding that to demonstrate prejudice "the applicant must show ... but for appellate counsel's errors, the result of the appeal would have been different." Pantovich v. State , Op. No. 2015-MO-052, 2015 WL 5047791 (S.C. Sup. Ct. filed Aug. 26, 2015).

On remand, the PCR court found appellate counsel ineffective and granted Pantovich a new trial. The court found that, because Pantovich presented evidence of his good character, controlling precedent required the trial court to give the "good character alone" charge to the jury. The PCR court determined the error prejudiced Pantovich because there was a reasonable probability the charge would have impacted the jury's consideration of whether he was without fault in bringing on the difficulty and rejected the State's arguments regarding harmless error. We granted the State's petition for a writ of certiorari.

STANDARD OF REVIEW

This Court affords deference to a PCR court's findings of fact, but reviews questions of law de novo.

427 S.C. 561

Smalls v. State , 422 S.C. 174, 180, 810 S.E.2d 836, 839 (2018). We will reverse if the PCR court's ruling is controlled by an error of law. Jordan v. State , 406 S.C. 443, 448, 752 S.E.2d 538, 540 (2013).

To prove appellate counsel was ineffective, a petitioner must first show counsel's performance was deficient, meaning it fell below an objective standard of reasonableness. See Strickland v. Washington , 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner must then show prejudice by demonstrating that, but for counsel's deficient performance, there is a reasonable probability the result of the appeal would have been different. Id . at 694, 104 S.Ct. 2052. A Strickland inquiry is retrospective, seeking to determine whether counsel was ineffective at the time of the alleged error. Id . at 689, 104 S.Ct. 2052.

DISCUSSION

Pantovich argues the PCR court's decision should be affirmed because the trial court was and is required to give the charge he requested when a defendant presents evidence of his good character. The State argues the "good character alone" charge is an unconstitutional comment on the facts, the charge given adequately covered the law, and any error was harmless.

The law in effect during the relevant time period—2011 and a short time thereafter—supported the PCR court's decision. In State v. Green , 278 S.C. 239, 294 S.E.2d 335 (1982), we stated, "[g]enerally, where requested and

832 S.E.2d 600

there is evidence of good character, a defendant is entitled to an instruction to the effect that evidence of good character and good reputation may in and of itself create a doubt as to guilt ...." 278 S.C. at 240, 294 S.E.2d at 335 (citing State v. Lyles , 210 S.C. 87, 92, 41 S.E.2d 625, 627 (1947) ). In State v. Lee-Grigg , 387 S.C. 310, 692 S.E.2d 895 (2010), we cited Green and reversed the defendant's conviction, stating "the trial court erred when it refused to give such a charge." 387 S.C. at 317, 692 S.E.2d at 898....