Plyler v. State, No. 23739

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtCHANDLER; HARWELL
Citation309 S.C. 408,424 S.E.2d 477
PartiesJames PLYLER, Petitioner, v. STATE of South Carolina, Respondent.
Docket NumberNo. 23739
Decision Date16 November 1992

Page 477

424 S.E.2d 477
309 S.C. 408
James PLYLER, Petitioner,
v.
STATE of South Carolina, Respondent.
No. 23739.
Supreme Court of South Carolina.
Submitted Sept. 22, 1992.
Decided Nov. 16, 1992.

[309 S.C. 409] Asst. Appellate Defender Joseph L. Savitz, III, South Carolina Office of Appellate Defense, Columbia, for petitioner.

Atty. Gen. T. Travis Medlock, Chief Deputy Atty. Gen. Donald J. Zelenka, and Asst. Atty. Gen. Teresa Nesbitt Cosby, Columbia, for respondent.

CHANDLER, Justice:

We granted certiorari to review an Order denying Petitioner James Randall Plyler (Plyler) post-conviction relief (PCR). We affirm.

Page 478

Plyler was convicted of murder and armed robbery and sentenced to consecutive terms of life imprisonment and twenty-five years. This Court affirmed the sentences on direct appeal. State v. Plyler, Op. No. 85-MO-164 (S.C.Sup.Ct. filed July 1, 1985).

At the PCR hearing, Plyler alleged that trial counsel was ineffective for: failing to closely examine the victim's gun; failing to object to the admission of dye-stained money; failing to have Plyler's psychiatrist testify at trial; failing to call various members of the community as witnesses; and failing to present evidence of an illicit affair between the victim and Plyler's mother. The PCR court found that the trial record, along with testimony at the PCR hearing, conclusively refuted these allegations. Accordingly, he dismissed that portion of the application charging ineffective assistance of counsel. 1

On certiorari to this Court, Plyler raises the issue of whether trial counsel was ineffective for failing to object to an erroneous malice charge. Since this issue was neither raised at the PCR hearing nor ruled upon by the PCR court, it is procedurally barred. Hyman v. State, 278 S.C. 501, 299 S.E.2d 330 (1983).

As to the merits of this allegation, it is well settled that to establish ineffective assistance of counsel, the petitioner must satisfy a two-prong test; first, he must [309 S.C. 410] demonstrate that counsel's representation fell below an objective standard of reasonableness; second, he must prove there is a reasonable probability that, but for counsel's errors, the outcome of the trial court would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

We agree with Plyler that the trial judge's malice charge here impermissibly shifted the burden of proof from the State. The judge charged in part, that:

[M]alice is implied or presumed from the willful, deliberate, and intentional doing of an unlawful act without just cause or excuse. In other words, in it's [sic] general signification, malice means the doing of a wrongful act, intentionally, without justification or excuse. But even if facts proven are sufficient to raise a presumption of malice, such presumption would be rebuttable and it is for you, the jury, to determine from all of the evidence of the case whether or not it has been established beyond a reasonable doubt ... Malice may be implied or presumed from the willful, deliberate, and intentional doing of an unlawful act without just cause or excuse. If one man, using or imploring a deadly weapon, deliberately and intentionally and without just cause or excuse, takes the life of another, malice will be presumed or implied. And further, ladies and gentlemen, even in the absence of a specific deliberate intent to take the life of a particular person or that of any person, malice may be implied or presumed from the conduct of the defendant in the use of or handling a deadly weapon, a dangerous instrumentality such as a pistol, shotgun, rifle, knife, or axe ... [A]s I have told you, if the circumstances established by the evidence should be found sufficient to raise an implication or presumption of malice under any principle of law which has been stated to you, such...

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48 practice notes
  • Al-Shabazz v. State, No. 24995.
    • United States
    • United States State Supreme Court of South Carolina
    • August 23, 1999
    ...254, 423 S.E.2d 127 (1992) (issue must be raised to and ruled on by the PCR judge in order to be preserved for review); Plyler v. State, 309 S.C. 408, 424 S.E.2d 477 (1992) A final judgment in a PCR action must be timely appealed, and it is filed in the Supreme Court as a petition for a wri......
  • Primus v. Padula, C.A. No. 4:07-cv-02652-PMD-TER.
    • United States
    • U.S. District Court — District of South Carolina
    • May 27, 2008
    ...constitutes abandonment of the claims, and the claims are thereafter procedurally barred. S.C.Code Ann. § 17-27-80; see Plyler v. State, 309 S.C. 408, 424 S.E.2d 477 (1992) (finding an issue that was neither raised at the PCR hearing nor ruled upon by the PCR court procedurally barred). Acc......
  • Drayton v. Evatt, No. 23852
    • United States
    • United States State Supreme Court of South Carolina
    • June 9, 1993
    ...534, 98 L.Ed.2d 546 (1988); and Thompson v. Aiken, 281 S.C. 239, 315 S.E.2d 110 (1984). 2 See, e.g., Plyler v. State, --- S.C. ----, 424 S.E.2d 477 (1992) (non-capital); Graves v. State, --- S.C. ----, 422 S.E.2d 125 (1992) (non-capital); Plath v. State, --- S.C. ----, 420 S.E.2d 834 (1992)......
  • State v. Burdette, Appellate Case No. 2017-001990
    • United States
    • United States State Supreme Court of South Carolina
    • July 31, 2019
    ...; State v. Harvin , 345 S.C. 190, 547 S.E.2d 497 (2001) ; State v. Von Dohlen , 322 S.C. 234, 471 S.E.2d 689 (1996) ; Plyler v. State , 309 S.C. 408, 424 S.E.2d 477 (1992) ; Carter v. State , 301 S.C. 396, 392 S.E.2d 184 (1990) ; State v. Smith , 288 S.C. 329, 342 S.E.2d 600 (1986) ; State ......
  • Request a trial to view additional results
48 cases
  • Al-Shabazz v. State, No. 24995.
    • United States
    • United States State Supreme Court of South Carolina
    • August 23, 1999
    ...254, 423 S.E.2d 127 (1992) (issue must be raised to and ruled on by the PCR judge in order to be preserved for review); Plyler v. State, 309 S.C. 408, 424 S.E.2d 477 (1992) A final judgment in a PCR action must be timely appealed, and it is filed in the Supreme Court as a petition for a wri......
  • Primus v. Padula, C.A. No. 4:07-cv-02652-PMD-TER.
    • United States
    • U.S. District Court — District of South Carolina
    • May 27, 2008
    ...constitutes abandonment of the claims, and the claims are thereafter procedurally barred. S.C.Code Ann. § 17-27-80; see Plyler v. State, 309 S.C. 408, 424 S.E.2d 477 (1992) (finding an issue that was neither raised at the PCR hearing nor ruled upon by the PCR court procedurally barred). Acc......
  • Drayton v. Evatt, No. 23852
    • United States
    • United States State Supreme Court of South Carolina
    • June 9, 1993
    ...534, 98 L.Ed.2d 546 (1988); and Thompson v. Aiken, 281 S.C. 239, 315 S.E.2d 110 (1984). 2 See, e.g., Plyler v. State, --- S.C. ----, 424 S.E.2d 477 (1992) (non-capital); Graves v. State, --- S.C. ----, 422 S.E.2d 125 (1992) (non-capital); Plath v. State, --- S.C. ----, 420 S.E.2d 834 (1992)......
  • State v. Burdette, Appellate Case No. 2017-001990
    • United States
    • United States State Supreme Court of South Carolina
    • July 31, 2019
    ...; State v. Harvin , 345 S.C. 190, 547 S.E.2d 497 (2001) ; State v. Von Dohlen , 322 S.C. 234, 471 S.E.2d 689 (1996) ; Plyler v. State , 309 S.C. 408, 424 S.E.2d 477 (1992) ; Carter v. State , 301 S.C. 396, 392 S.E.2d 184 (1990) ; State v. Smith , 288 S.C. 329, 342 S.E.2d 600 (1986) ; State ......
  • Request a trial to view additional results

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