Wicker v. State, 23763

Citation425 S.E.2d 25,310 S.C. 8
Decision Date20 January 1993
Docket NumberNo. 23763,23763
CourtUnited States State Supreme Court of South Carolina
PartiesBennie WICKER, Jr., Petitioner, v. STATE of South Carolina, Respondent.

Asst. Appellate Defender Tara Dawn Shurling of the 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. Delbert H. Singleton, Jr., Columbia, for respondent.

FINNEY, Justice:

This Court granted certiorari to review the circuit court's denial of post-conviction relief (PCR) to Petitioner Bennie Wicker, Jr. We have reviewed the trial record pursuant to Davis v. State, 288 S.C. 290, 342 S.E.2d 60 (1986), and White v. State, 263 S.C. 110, 208 S.E.2d 35 (1974). After fully considering the entire record, briefs of the parties and the applicable law, we affirm.

Davis v. State, supra, promulgates procedural guidelines for review of PCR cases in which a petitioner's knowing and intelligent waiver of the right to direct appeal is at issue. Under an exception to the prohibition against appellate courts considering appeals in the absence of notice of intent to appeal given and timely served, White v. State, supra, permits consideration of the full trial record on this issue in conjunction with appellate review of the PCR proceeding.

Petitioner entered a plea of guilty to murder, burglary and armed robbery on April 10, 1984. He received concurrent sentences of life imprisonment for murder and burglary, and twenty-five years for armed robbery. No direct appeal was taken.

Petitioner filed an application for PCR dated May 23, 1984, alleging ineffective assistance of counsel, involuntariness of his guilty plea, coercion, unconstitutionality of warrants and indictments, that he made certain statements to law enforcement while under the influence of drugs, that he was denied a preliminary hearing and not informed of his right to appeal. On September 17, 1984, an evidentiary hearing was held before Judge Walter J. Bristow, Jr., and by order dated November 15, 1984, PCR was denied.

On August 6, 1986, petitioner filed a Petition for Writ of Habeas Corpus in the United States District Court for the District of South Carolina. The report of the United States Magistrate dated January 7, 1987, recommended that the petition be denied. On February 5, 1987, the United States District Court granted respondent's motion for summary judgment.

Subsequently, petitioner petitioned the United States Court of Appeals for the Fourth Circuit for a Certificate of Probable Cause to Appeal, which petition was denied May 12, 1987. His petition for rehearing was denied on July 9, 1987.

On September 8, 1987, petitioner filed a Petition for Writ of Certiorari in the United States Supreme Court, which denied certiorari on December 14, 1987.

On April 15, 1988, petitioner filed a second application for PCR. On May 25, 1988, respondent filed its return and a motion for summary dismissal. On September 21, 1988, Judge Thomas L. Hughston, Jr., issued a conditional order dismissing the application as successive. S.C.Code Ann. § 17-27-90 (1976). On March 24, 1989, Judge James E. Moore issued a Final Order dismissing the application with prejudice upon a finding that petitioner had failed to show cause why the dismissal should not become final.

On April 4, 1989, Judge Moore filed an Amended Final Order which incorporated his Final Order and included the amendment that a document filed by the petitioner captioned "Applicant's Explanation Why Conditional Order of Dismissal Should Not Become Final," dated October 2, 1988, had been misfiled by the Office of the Clerk of Court and not forwarded to the Attorney General until March 31, 1989. The amendment reflected the finding of the court that after reviewing petitioner's response, the court did not find a showing of sufficient reason why the Conditional Order of Dismissal should not become final, and so ordered. S.C.Code Ann. § 17-27-70(b) (1976).

By notice dated March 31, 1989, petitioner appealed the denial of PCR to this Court, asserting that his first PCR counsel did not inform petitioner of his right to appeal, nor did counsel file notice of intent to appeal after being told by petitioner that he desired to appeal if he did not prevail on PCR. Upon a finding that petitioner's reply to the Conditional Order of Dismissal raised sufficient allegations to warrant an evidentiary hearing, we reversed and remanded. Wicker v. State, Op. No. 23175 (S.C. Sup. Ct. filed March 12, 1990).

On October 31, 1990, an evidentiary hearing was held before Judge Thomas L. Hughston, Jr. In an Amended Application for PCR, petitioner alleged ineffective assistance of counsel in seven specifics, also that his plea was involuntary, and that he was denied due process and equal protection of the law. In his order of dismissal dated December 28, 1990, Judge Hughston found that petitioner's prior PCR counsel had raised each allegation in the application upon which the first PCR hearing had been conducted, that petitioner had not appealed the denial of PCR upon the dismissal of his first application, and that he was barred from raising the allegations made in his amended application. The second PCR judge found that petitioner had failed to meet his burden of proof to establish that the allegations of his first application were not adequately raised. Aice v. State, 305 S.C. 448, 409 S.E.2d 392 (1991).

Additionally, Judge Hughston found that petitioner's first PCR counsel was ineffective in that he failed to appeal the denial of PCR, and that petitioner had not voluntarily waived his right to appeal. Judge Hughston denied PCR and dismissed the application, in reliance upon Austin v. State, 305 S.C. 453, 409 S.E.2d 395 (1991), wherein this Court held that upon a finding by the circuit court that counsel was ineffective in failing to timely seek appellate review of the denial...

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20 cases
  • Tucker v. Moore
    • United States
    • U.S. District Court — District of South Carolina
    • March 15, 1999
    ...review. Whiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560, 562 n. 3, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); Wicker v. State, 310 S.C. 8, 425 S.E.2d 25 (1992); Aice v. State, 305 S.C. 448, 409 S.E.2d 392, 393 (S.C.1991) [post-conviction relief].6 Further, as there is no current state ......
  • Stoudenmire v. Warden
    • United States
    • U.S. District Court — District of South Carolina
    • October 3, 2018
    ...barred from further state collateral review; Whiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560, 562 n. 3 (1971); Wicker v. State, 425 S.E.2d 25 (S.C. 1992);Ingram v. State of S.C., No. 97-7557, 1998 WL 726757 at **1 (4th Cir. Oct. 16, 1998); Josey v. Rushton, No. 00-547, 2001 WL 340......
  • Dalton v. State
    • United States
    • Court of Appeals of South Carolina
    • December 18, 2007
    ...relief evidentiary hearing is whether "any evidence of probative value" exists to sustain the PCR judge's findings. Wicker v. State, 310 S.C. 8, 11, 425 S.E.2d 25, 27 (1992); Cherry v. State, 300 S.C. 115, 386 S.E.2d 624 (1989). In a PCR proceeding, the applicant bears the burden of proving......
  • Poe v. Stone
    • United States
    • U.S. District Court — District of South Carolina
    • November 30, 2015
    ...finding that failure to appeal denial of his state post-conviction petition constituted non-exhaustion of remedies]; Wicker v. State, 425 S.E.2d 25, 26 (S.C. 1992). ...
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