Pierce v. State

• Decision Date: 10 January 2000
• Docket Number: No. 25043.,25043.
• Citation: 526 S.E.2d 222,338 S.C. 139
• Parties: George M. PIERCE, II, Respondent, v. STATE of South Carolina, Petitioner.
• Court: South Carolina Supreme Court

338 S.C. 139

526 S.E.2d 222

George M. PIERCE, II, Respondent, v. STATE of South Carolina, Petitioner.

No. 25043.

Supreme Court of South Carolina.

Submitted November 17, 1999.

Decided January 10, 2000.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, and Assistant Deputy Attorney General Teresa A. Knox, all of Columbia, for petitioner.

Isaac M. Stone, III, and Morgan S. Templeton, both of Beaufort, for respondent.

WALLER, Justice:

George M. Pierce, II (respondent) entered a plea of nolo contendere to a charge of using his official position or office for financial gain, and was fined $700. Respondent did not appeal his conviction or sentence. A circuit judge granted post-conviction relief (PCR) to respondent after an evidentiary hearing. We granted petitioner's (the State's) petition for a writ of certiorari, and now reverse.¹

FACTS

Respondent, then a highway patrol trooper, stopped a motorist on October 25, 1991, for driving under the influence, third offense. He agreed to charge the motorist with DUI, first offense, in exchange for the motorist's 1965 pickup truck. Respondent took possession of the truck December 4, 1991. A grand jury indicted respondent January 23, 1992, for violating S.C.Code Ann. § 8-13-410 (1986). At the time respondent committed the alleged offense, Section 8-13-410 stated that "[n]o public official or public employee shall use his official position or office to obtain financial gain for himself."

The "Ethics, Government Accountability, and Campaign Reform Act of 1991" took effect January 1, 1992. Act No. 248, 1991 Acts 1578, 1652. The Act included a new provision that replaced Section 8-13-410: "No public official, public member, or public employee may knowingly use his official office, membership, or employment to obtain an economic interest for himself, a member of his immediate family, an individual with whom he is associated, or a business with which he is associated." Act. No. 248 § 3, 1991 Acts 1616 (codified at S.C.Code Ann. § 700(A) (Supp.1998)) (emphasis added). The new statute requires the State to prove a defendant "knowingly" committed a violation, while the former statute did not specify the required level of criminal intent, or mens rea.

Respondent entered a plea of nolo contendere March 2, 1992. The plea judge found that Section 8-13-410 had been repealed by the 1991 Ethics Act, but believed the statute still applied in respondent's case because respondent committed the offense in 1991 before the statute was repealed. Respondent's plea counsel agreed. Respondent, who faced a misdemeanor charge with a maximum sentence of $1,000 and ninety days in jail, was fined $700.

In his PCR application and at the hearing, respondent alleged his plea attorney was ineffective in failing to tell him that Section 8-13-410 had been repealed by the 1991 Ethics Act and that the State, under Section 8-13-700(A), would have to prove he "knowingly" committed the offense. Respondent also alleged his attorney was ineffective in not realizing that the repeal of Section 8-13-410 nullified any indictment based on that statute, thus depriving the circuit court of subject matter jurisdiction to accept his plea. The PCR judge agreed with respondent's arguments and granted him relief.

ISSUES

1. Did the PCR judge err in ruling that respondent's counsel provided ineffective assistance because the State would have to prove respondent "knowingly" committed the offense under the new statute?

2. Did the PCR judge err in ruling that counsel provided ineffective assistance because the repeal of Section 8-13-410 meant the plea judge lacked subject matter jurisdiction to accept respondent's plea?

DISCUSSION

1. APPLICATION OF NEW STATUTE

The State argues the PCR judge erred in ruling that respondent's counsel provided ineffective assistance. The new statute does not apply in respondent's case and, if the case had gone to trial, the State would not have had to prove respondent "knowingly" committed the offense under the new statute, the State contends. We agree.

In order to establish a claim of ineffective assistance of counsel, a PCR applicant must prove counsel's performance was deficient and the deficient performance prejudiced the applicant's case. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Cherry v. State, 300 S.C. 115, 386 S.E.2d 624 (1989). Where there has been a guilty plea, the applicant must prove counsel's representation fell below the standard of reasonableness and, but for counsel's unprofessional errors, there is a reasonable probability he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Alexander v. State, 303 S.C. 539, 402 S.E.2d 484 (1991). Thus, an applicant must show both error and prejudice to win relief in a PCR proceeding. Scott v. State, 334 S.C. 248, 513 S.E.2d 100 (1999).

We will uphold the findings of the PCR judge when there is any evidence of probative value to support them. Cherry v. State, supra.

We will not uphold the findings when there is no probative evidence to support them. Holland v. State, 322 S.C. 111, 470 S.E.2d 378 (1996). Furthermore, we will reverse the PCR judge's decision when it is controlled by an error of law. See Simpson v. State, 317 S.C. 506, 455 S.E.2d 175 (1995) (reversing grant of PCR where judge, who erroneously believed guilty plea had to be acknowledged by defendant in writing, vacated plea because defendant had signed an incorrect plea).

Initially, we note this case presents the "flip side" of a typical ex post facto claim. The application of a new or amended criminal statute may prompt a defendant to allege a violation of the Ex Post Facto Clause,² arguing the court may not apply a statute enacted or amended after the date of an offense in his case. E.g., State v. Collins, 329 S.C. 23, 28 n. 4, 495 S.E.2d 202, 205 n. 4 (1998)

(element of criminal offense that was altered by Court after the date of alleged offense was not applied in defendant's case because that would result in ex post facto or due process violation); State v. Huiett, 302 S.C. 169, 171, 394 S.E.2d 486, 487 (1990) (to fall within the ex post facto prohibition, a law must be retrospective so as to apply to events occurring before its enactment, and it must disadvantage the offender affected by it). Respondent presents the opposite allegation, contending the court must apply in his case a statute that took effect after he committed the alleged offense.

The crucial question is whether the Legislature repealed or amended Section 8-13-410 by passing Section 8-13-700(A) as part of the 1991 Ethics Act.

The longstanding common law view is that a

continued prosecution necessarily depend[s] upon the continued life of the statute which the prosecution seeks to apply. In case a statute is repealed or rendered inoperative, no further proceedings can be had to enforce it in pending prosecutions unless competent authority has kept the statute alive for that purpose.... Prosecution for crimes is but an application or enforcement of the law, and if the prosecution continues the law must continue to vivify it.

United States v. Chambers, 291 U.S. 217, 223-26, 54 S.Ct. 434, 435-36, 78 L.Ed. 763, 765-67 (1934).

South Carolina follows this common law rule. The parties have not cited and we have not found any statutory or constitutional provision containing a general saving clause for repealed criminal statutes.³ Cf. 1 U.S.C.A. § 109 (1997) (general federal saving statute); Annot., 5 A.L.R.2d 1270 (1949) (discussing impact of other states' constitutional provisions affecting repeal or amendment of statutes).

Thus, a criminal defendant may not be convicted under a repealed statute when the repealing act does not contain a saving clause. See State v. Rider, 320 S.C. 533, 466 S.E.2d 367 (1996)

(vacating conviction where stalking statute was expressly repealed and new statute substituted in its place, and the repealing act did not contain a saving clause); State v. Defee, 246 S.C. 555, 144 S.E.2d 806 (1965) (upholding the dismissal of an indictment for violation of obscenity statute where new obscenity statute became effective after alleged violation but before trial; act containing new statute did not contain saving clause and was broad enough in scope to repeal previous statute); State v. Spencer, 177 S.C. 346, 355-56, 181 S.E. 217, 221 (1935) (vacating conviction where Prohibition Era laws under which defendant was convicted were expressly repealed by act legalizing the possession and sale of alcoholic beverages); State v. Lewis, 33 S.E. 351 (1899) (court does not have subject matter jurisdiction in prosecution of defendant when statute making the alleged offense a crime has been repealed); 22 C.J.S. Criminal Law § 29 (1989) (general rule is that repeal of a criminal statute without a saving clause ends prosecution and punishment); see also Taylor v. Murphy, 293 S.C. 316, 318-19, 360 S.E.2d 314, 316 (1987) (stating in tort case that "[t]he general rule is that the repeal of a statute operates retrospectively, and has the effect of blotting the statute out completely as if it had never existed and of putting an end to all proceedings under it which have not been prosecuted to final judgment"). The obvious rationale for the common law rule is that "the extinction of the statute is understood to be an indication that the sovereign power no longer desires the former crime to be punished or regarded as criminal." State v. Spencer, 177 S.C. at 357, 181 S.E. at 222.

The Court has indicated, however, that a pending prosecution of a defendant may continue when a criminal statute is amended, but not repealed. "[A] statutory change in the punishment for a crime does not have the effect of impairing a prosecution pending at the time of the enactment of the statutory change, except to the extent of the punishment to be imposed." State v....