Thornes v. State
| Decision Date | 11 January 1993 |
| Docket Number | No. 23780,23780 |
| Citation | 310 S.C. 306,426 S.E.2d 764 |
| Court | South Carolina Supreme Court |
| Parties | Vincent THORNES, Petitioner, v. STATE of South Carolina, Respondent. |
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. Lisa G. Jefferson, Columbia, for respondent.
This writ of certiorari arises from a denial, after a PCR hearing, of the Petitioner's application for post conviction relief, stemming from Petitioner's plea of nolo contendere to assault and battery of a high and aggravated nature and second degree burglary. After consideration of the record and the applicable law, we affirm.
The Petitioner, Thornes, was arrested and charged under an indictment with first degree burglary, assault and battery of a high and aggravated nature, and kidnapping. In September 1989, Thornes, along with his attorney, appeared before Judge Robert L. McFadden and pleaded nolo contendere to the charges of second degree burglary, and assault and battery of a high and aggravated nature. The charge of kidnapping was nolle prossed as a result of plea negotiations. The Judge sentenced Thornes to ten (10) years for the assault and battery of a high and aggravated nature, and fifteen (15) years for the burglary; neither the sentence or the plea was ever directly appealed.
On September 19, 1990, Thornes filed an application for PCR, alleging ineffective assistance of counsel. Thornes' basis for the PCR application was that his attorney failed to interview the victim, the state's chief witness, before advising him to plead nolo contendere.
Thornes asserts that if the case had gone to trial rather than to the original plea proceeding, the victim's testimony could have changed the outcome, or at least changed his decision to plead to the charges. He relies on the victim's post conviction statement, that some of his actions inside her home were consistent with someone being pursued and in fear for his life. Judge Rushing, after holding a PCR hearing where the victim's testimony was heard, denied Thornes any relief in an order dated March 8, 1991. It is from this denial that Thornes appeals.
The only issue raised by this appeal is whether Petitioner met his burden of proof in establishing that his counsel was ineffective for not interviewing the victim. Petitioner must present evidence that counsel was ineffective and that the ineffectiveness prejudiced the outcome of the case. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Cobbs v. State, 305 S.C. 299, 408 S.E.2d 223 (1991). Where the petitioner pleads guilty or nolo contendere to the original charges, then he must demonstrate that but for the ineffectiveness of his counsel, he would have requested a trial rather than entering a plea. Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Jordan v. State, 297 S.C. 52, 374 S.E.2d 683 (1988).
The law is equally clear on the standard of appellate review. The court in Cherry v. State, 300 S.C. 115, 386 S.E.2d 624 (1989), reaffirmed a large body of case law which confines appellate review to the issue of whether there is, " 'any evidence' of probative value ... sufficient to uphold the PCR judge's findings." Id. at 119, 386 S.E.2d at 626; see Webb v. State, 281 S.C. 237, 314 S.E.2d 839 (1984); Daniel v. State, 282 S.C. 155, 317 S.E.2d 746 (1984); Griffin v. Warden, 277 S.C. 288, 286 S.E.2d 145 (1982), cert. denied, 459 U.S. 942, 103 S.Ct. 255, 74 L.Ed.2d 199 (1982).
Against this legal framework, the dispositive issues are: whether Thornes met his burden of proof in establishing ineffective assistance of counsel, and whether any evidence of probative value was presented which could support the PCR judge's findings.
At the PCR hearing, Thornes presented his own testimony and the testimony of the victim. This evidence was offered to demonstrate that the victim's testimony was sufficient to sway the outcome of a trial or Thornes' decision to plead nolo contendere. Thornes contends that his attorney did not interview the victim prior to Thornes' plea, and as a result, failed to have a realistic appraisal of Thornes' chances at trial.
Thornes relies on the victim's reluctance to be a witness, and the statements she made subsequent to the original plea. These statements, although somewhat favorable to petitioner, were made years after the original incident. Thornes also points out that the victims' act of testifying at the PCR hearing at his behest holds some special significance. Although unusual, it hardly demonstrates that at the time of the original case the victim would have an identical reaction. At best, it establishes that some time after the conviction, the victim decided to change her mind.
The victim impact statement filed with the court, prior to the entry of the plea, stated the extent of injuries the victim sustained and recounted the circumstances surrounding the incident. This same victim impact statement was prepared quoting information from the victim's questionnaire. The...
To continue reading
Request your trial
-
Winkler v. State
...potential changes in the law which are not in existence at the time of the conviction." Id. ; see also Thornes v. State , 310 S.C. 306, 309-10, 426 S.E.2d 764, 765 (1993) (stating, "This Court has never required an attorney to anticipate or discover changes in the law," and citing cases to ......
-
Winkler v. State
...potential changes in the law which are not in existence at the time of the conviction." Id.; see also Thornes v. State, 310 S.C. 306, 309-10, 426 S.E.2d 764, 765 (1993) (stating, "This Court has never required an attorney to anticipate or discover changes in the law," and citing cases to il......
-
Jackson v. Kendall
...an attorney to anticipate or discover changes in the law, or facts which did not exist, at the time of the trial.” Thomes v. State, 310 S.C. 306, 309-10, 426 S.E.2d 764, 765 This Court finds that Trial Counsel was not ineffective in failing to object to a jury instruction that was proper at......
-
Gilmore v. State, 24107
...... We have never required an attorney to be clairvoyant or anticipate changes in the law which were not in existence at the time of trial. Thornes v. State, --- S.C. ----, 426 S.E.2d 764 (1993); see also Robinson v. State, 308 S.C. 74, 417 S.E.2d 88 (1992); Arnette v. State, 306 S.C. 556, 413 S.E.2d 803 (1992); Kirkpatrick v. State, 306 S.C. 359, 412 S.E.2d 389 (1991). When respondent was tried for his drug offenses, the ......