Weary v. State, 2016-UP-132

• Decision Date: 09 March 2016
• Docket Number: 2016-UP-132
• Parties: Willis Weary, Respondent, v. State of South Carolina, Petitioner. Appellate Case No. 2011-201588
• Court: Court of Appeals of South Carolina

Willis Weary, Respondent, v. State of South Carolina, Petitioner.

Appellate Case No. 2011-201588

No. 2016-UP-132

Court of Appeals of South Carolina

March 9, 2016

UNPUBLISHED OPINION

Heard February 2, 2015

ON WRIT OF CERTIORARI

Appeal From Richland County G. Thomas Cooper, Jr., Trial Judge James R. Barber, III, Post-Conviction Relief Judge

Attorney General Alan McCrory Wilson and Assistant Attorney Megan E. Harrigan, both of Columbia, for Petitioner.

Appellate Defender Kathrine Haggard Hudgins, of Columbia, for Respondent.

PER CURIAM:

The State of South Carolina (the State) appeals the post-conviction relief court's (PCR court) order granting Willis Weary's application for post-conviction relief and remanding his case for sentencing on second-degree burglary. The State argues the PCR court erred in determining that Weary's trial counsel provided ineffective assistance by failing to investigate and properly challenge-at the directed verdict stage in a trial for first-degree burglary-two prior burglary convictions, which elevated Weary's charge to first-degree burglary. The State further argues Weary's sentence was appropriately enhanced based on his three prior burglary convictions. We reverse.

I. Deficient Performance

On April 19, 2006, the Richland County grand jury indicted Weary for first-degree burglary, alleging the August 20, 2005 burglary occurred "in the nighttime." The indictment was subsequently amended on January 25, 2007, to include the additional allegation that Weary had "a prior record of two or more convictions for burglary." Following a jury trial, Weary was convicted of first-degree burglary and sentenced to eighteen years of imprisonment. The PCR court subsequently granted Weary's application for post-conviction relief and remanded for resentencing on the charge of second-degree burglary. At issue is whether the PCR court erred in finding that trial counsel was ineffective for failing to investigate Weary's prior burglary convictions.

In order to establish a claim of ineffective assistance of counsel, a PCR applicant must prove: (1) counsel failed to render reasonably effective assistance under prevailing professional norms; and (2) counsel's deficient performance prejudiced the applicant's case. Strickland v. Washington, 466 U.S. 668, 687 (1984). "A criminal defense attorney has the duty to conduct a reasonable investigation to discover all reasonably available mitigation evidence and all reasonably available evidence tending to rebut any aggravating evidence introduced by the State." McKnight v. State, 378 S.C. 33, 46, 661 S.E.2d 354, 360 (2008). "A decision 'not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.'" Simpson v Moore, 367 S.C. 587, 597, 627 S.E.2d 701, 706 (2006) (quoting Strickland, 466 U.S. at 691).

Here, Weary testified that he never discussed his prior burglary convictions with trial counsel. Likewise, trial counsel did not recall discussing the prior convictions with Weary and did not have any notes reflecting such a discussion. Despite the fact that the indictments and records related to the prior burglaries were available to trial counsel before Weary's trial on the 2005 burglary charge, trial counsel could not confirm that he pulled or reviewed the documents and admitted that he did not have a copy of them in his file. Trial counsel testified that he should have investigated Weary's prior convictions. He did not recall conducting any legal research regarding the prior convictions, did not have any legal research in his file, and did not cite any specific case law or statutes at trial. Therefore, we find no error in the decision of the PCR court finding that trial counsel failed to render reasonably effective assistance under prevailing professional norms. This finding does not conclude our analysis, however, because we must determine if Weary suffered any prejudice and to do that, analyze his prior convictions.

II. Prior Burglary Convictions

The State argues the PCR court erred in finding Weary's two prior burglary convictions do not satisfy the requirements for a subsequent first-degree burglary conviction based on the "two or more prior convictions" element.

A person is guilty of first-degree burglary "if the person enters a dwelling without consent and with intent to commit a crime in the dwelling and . . . the burglary is committed by a person with a prior record of two or more convictions for burglary or housebreaking or a combination of both; or the entering or remaining occurs in the nighttime." S.C. Code Ann. § 16-11-311(A)(2)-(3) (2003) (emphasis added). Our supreme court has explained that section 16-11-311 "allows the State to punish Defendant's recidivism by using his previous convictions to elevate actions that would normally constitute a burglary, second degree charge to a charge of burglary, first degree." State v. Washington, 338 S.C. 392, 396, 526 S.E.2d 709, 711 (2000). In seeking an enhanced punishment under this section, "the State is punishing Defendant to a greater extent for the current offense due to his repetitive illegal actions." Id. at 397, 526 S.E.2d at 711. "Considering this interpretation of section 16-11-311(A)(2), it is clear that the legislative policy behind the enactment of this section is to provide 'a stiffened penalty for the latest crime, which is considered to be an aggravated offense because it is a repetitive one.'" State v. Zulfer, 345 S.C. 258, 263, 547 S.E.2d 885, 887 (Ct. App. 2001) (quoting Washington, 338 S.C. at 396, 526 S.E.2d at 711).

For the purpose of sentencing, "the court shall treat as one offense any number of offenses which have been committed at times so closely connected in point of time that they may be considered as one offense, notwithstanding under the law they constitute separate and distinct offenses." S.C. Code Ann. § 17-25-50 (2014) (emphasis added). See, e.g., SC Code Ann. § 56-1-1020 (2006) (explaining that multiple traffic offenses committed within a one-day period "shall be treated for the purposes of this article as one offense"); State v. Woody 359 S.C. 1, 3–4, 596 S.E.2d 907, 908 (2004) (rejecting the State's position that defendant's two prior armed robberies, which arose from a single incident at the same time and at the same location, did not constitute one offense); State v. Boyd, 288 S.C. 206, 209– 10, 341 S.E.2d 144, 146 (Ct. App. 1986) ("[W]e hold that where a defendant has been convicted on two or more counts for the violation of the Controlled Substance Act arising out of simultaneous acts committed in the course of a single incident, the convictions will be considered as only one for the purpose of sentencing under a subsequent conviction for a violation of the Controlled Substance Act."). But see Bryant v. State, 384 S.C. 525, 533–34, 683 S.E.2d 280, 284–85 (2009) (explaining that when a defendant commits three separate armed robberies on different days, at different locations, and the robberies involved...