Talley v. State, No. 26250.

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: Burnett
• Citation: 640 S.E.2d 878
• Parties: William R. TALLEY, Respondent, v. STATE of South Carolina, Petitioner.
• Docket Number: No. 26250.
• Decision Date: 22 January 2007

640 S.E.2d 878 William R. TALLEY, Respondent,
v.
STATE of South Carolina, Petitioner. No. 26250. Supreme Court of South Carolina. Submitted September 20, 2006. Decided January 22, 2007.

[640 S.E.2d 879]

Attorney General Henry Dargan McMaster; Chief Deputy Attorney General John W. McIntosh; Assistant Deputy Attorney General Salley W. Elliott; Assistant Attorney General Christopher L. Newton, all of Columbia, for Petitioner.

Walter H. Hinton, II, of Nelson Mullins Riley & Scarborough, LLP, of Greenville; and Aisha S. Lusk, of Nelson Mullins Riley & Scarborough, LLP, of Columbia, for Respondent.

Justice BURNETT:

This is a post-conviction relief (PCR) case. The PCR judge granted relief to William R. Talley (Respondent). We granted the State's petition for writ of certiorari and reverse.

FACTUAL/PROCEDURAL BACKGROUND

In 1995, Respondent pled guilty to possession of drug paraphernalia in magistrate's court and paid a $200 fine. In 1996, he pled guilty to criminal domestic violence also in magistrate's court. Respondent received a $940 fine and was sentenced to thirty days' imprisonment, immediately suspended on the condition of six months' good behavior. In 2003, Respondent filed this PCR application to set aside the two misdemeanor convictions alleging his federal constitutional right to counsel had been violated because he was not represented by counsel in either conviction.

Respondent is currently serving a 97-month federal sentence for conspiracy to possess with intent to distribute and distribution of cocaine and cocaine base. He was assessed two criminal history points for the two state convictions under the United States

640 S.E.2d 880

Sentencing Guidelines. Respondent contends his federal sentence was enhanced by approximately ten months because of these criminal history points.

The State moved to summarily dismiss Respondent's PCR application for failure to file within the statute of limitations pursuant to S.C.Code Ann. § 17-27-45(A) (2003).¹ Respondent argued his PCR application was timely filed under S.C.Code Ann. § 17-27-45(B)² because it was filed within one year of Alabama v. Shelton, 535 U.S. 654, 122 S.Ct. 1764, 152 L.Ed.2d 888 (2002).

The PCR judge denied the motion to dismiss and held Respondent had timely filed his PCR application under § 17-27-45(B) because Shelton created a new rule that must be applied retroactively on collateral review. The PCR judge determined, under Shelton, the constitutional right to counsel applied to Respondent's convictions and Respondent had not waived the right. The PCR judge concluded Respondent's right to counsel had been violated in both convictions and vacated Respondent's convictions.

ISSUE

Did the PCR judge err in applying Alabama v. Shelton, 535 U.S. 654, 122 S.Ct. 1764, 152 L.Ed.2d 888 (2002), retroactively on collateral review to Respondent's convictions?

STANDARD OF REVIEW

A PCR applicant bears the burden of establishing that he is entitled to relief. Caprood v. State, 338 S.C. 103, 109, 525 S.E.2d 514, 517 (2000). The Court will uphold the findings of the PCR judge when there is any evidence of probative value to support them. Id. at 109-10, 525 S.E.2d at 517. The Court will reverse the PCR judge's decision when it is controlled by an error of law. Pierce v. State, 338 S.C. 139, 145, 526 S.E.2d 222, 225 (2000).

LAW/ANALYSIS

The State argues the PCR judge erred in applying Shelton retroactively on collateral review to Respondent's convictions. We conclude the PCR judge correctly determined Shelton must be applied retroactively on collateral review, but erroneously applied Shelton to Respondent's convictions.

The State urges us to apply both Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and State v. Jones, 312 S.C. 100, 439 S.E.2d 282 (1994), to determine whether Shelton should be applied retroactively on collateral review. We disagree. In determining whether Respondent was deprived of his federal constitutional right to counsel, we are required to follow the United States Supreme Court's decisions on retroactivity. Am. Trucking Ass'ns, Inc. v. Smith, 496 U.S. 167, 178, 110 S.Ct. 2323, 2330, 110 L.Ed.2d 148, 159 (1990) ("In order to ensure the uniform application of decisions construing constitutional requirements and to prevent States from denying or curtailing federally protected rights, we have consistently required that state courts adhere to our retroactivity decisions."); see also, e.g., State v. Means, 367 S.C. 374, 626 S.E.2d 348 (2006) (applying Jones in determining State v. Gentry, 363 S.C. 93, 610 S.E.2d 494 (2005), should be applied retroactively); State v. Hill, 361 S.C. 297, 604 S.E.2d 696 (2004) (applying Jones in determining State v. Sutton,

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340 S.C. 393, 532 S.E.2d 283 (2000), should be applied retroactively); Gibson v. State, 355 S.C. 429, 586 S.E.2d 119 (2003) (applying Teague to determine whether Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), should be applied retroactively on collateral review).

In general, the question of whether a decision announcing a new rule should be given prospective or retroactive effect should be addressed at the time of the decision. Teague, 489 U.S. at 300, 109 S.Ct. at 1070, 103 L.Ed.2d at 349. "[A] case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government. To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." Id. at 301, 109 S.Ct. at 1070, 103 L.Ed.2d at 349 (internal citations omitted) (emphasis in original).

In Shelton, the Supreme Court held the constitutional right to counsel extends to a defendant who receives a "suspended sentence that may `end up in the actual deprivation of a person's liberty.'" 535 U.S. at 658, 122 S.Ct. at 1767, 152 L.Ed.2d at 895 (citing Argersinger v. Hamlin, 407 U.S. 25, 40, 92 S.Ct. 2006, 2014, 32 L.Ed.2d 530, 540 (1972)).³ The Supreme Court explained:

A suspended sentence is a prison term imposed for the offense of conviction. Once the prison term is triggered, the defendant is incarcerated not for the probation violation, but for the underlying offense. The uncounseled conviction at that point "result[s] in imprisonment. . .;" it "ends up in the actual deprivation of a person's liberty."

Shelton, 535 U.S. at 662, 122 S.Ct. at 1770, 152 L.Ed.2d at 898 (citing Nichols v. United States, 511 U.S. 738, 746, 114 S.Ct. 1921, 1927, 128 L.Ed.2d 745, 754 (1994) and Argersinger, 407 U.S. at 40, 92 S.Ct. at 2014, 32 L.Ed.2d at 540).

The Supreme Court asserted that two prior decisions, Argersinger and Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), controlled its decision in Shelton. 535 U.S. at 657, 122 S.Ct. at 1767, 152 L.Ed.2d at 895. In Argersinger the Supreme Court held "that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at trial." 407 U.S. at 37, 92 S.Ct. at 2012, 32 L.Ed.2d at 538 (clarifying the scope of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), in which the Supreme Court held that the Sixth Amendment's guarantee of the right of an indigent defendant to appointed counsel applies to state criminal prosecutions through the Fourteenth Amendment). Then in Scott, the Supreme Court noted "the central premise of Argersinger — that actual imprisonment is a penalty different in kind from fines or the mere threat of imprisonment —is eminently sound and warrants adoption of actual imprisonment as the line defining the constitutional right to appointment of counsel." 440 U.S. at 373, 99 S.Ct. at 1162, 59 L.Ed.2d at 389. The Supreme Court found the constitutional right to counsel does not apply when a prison term is an authorized punishment but not actually imposed. Id. at 369, 99 S.Ct. at 1160, 59 L.Ed.2d at 386.

Although the Supreme Court in Shelton found the Argersinger-Scott "actual imprisonment" rule controlling, "the fact that a court says that its decision is within the `logical compass' of an earlier decision, or indeed...