Bowers v. State

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

James Bowers, Petitioner,

v.

State of South Carolina, Respondent.

Appellate Case No. 2010-152167

ON WRIT OF CERTIORARI

Appeal From Beaufort County
Alexander S. Macaulay, Circuit Court Judge

Unpublished Opinion No. 2013-UP-272
Heard April 9, 2013 – Filed June 19, 2013

AFFIRMED

Kathrine Haggard Hudgins, of Columbia, for Petitioner.

Attorney General Alan Wilson, Chief Deputy Attorney
General John W. McIntosh, Assistant Attorney General
Matthew J. Friedman, and Assistant Attorney Ashleigh
R. Wilson, all of Columbia, for Respondent.
PER CURIAM: This post-conviction relief (PCR) appeal arises out of Petitioner
James Bowers' conviction for armed robbery. Bowers was sentenced to life
without parole (LWOP) pursuant to section 17-25-45(A) of the South Carolina
Code (2003), also known as the two-strikes law. On appeal, Bowers argues the
PCR court erred by finding trial counsel was not ineffective when trial counsel
failed to challenge his prior conviction for assault with intent to ravish as a "most
serious offense" for purposes of imposing a LWOP sentence pursuant to the two-
strikes law. Because we find the issue unpreserved for review, we must affirm the
PCR court's denial of Bowers' application.

The PCR court ruled trial counsel sufficiently challenged the use of Bowers' prior
convictions for purposes of the trial court imposing LWOP pursuant to the two-
strikes law. At the hearing, the PCR court found trial counsel raised to the trial
court the issue of whether assault with intent to ravish was the same offense as the
most serious offenses of assault with intent to commit first or second-degree
criminal sexual conduct (CSC). The record indicates that at sentencing, trial
counsel objected to the trial court using Bowers' prior assault with intent to ravish
conviction to enhance his conviction, arguing the two-strikes law is
unconstitutional and the conviction was too remote. Trial counsel also objected to
using Bowers' prior robbery conviction to enhance Bowers' conviction. The State
explained it was relying on the assault with intent to ravish conviction to enhance
Bowers' conviction pursuant to the two-strikes law. Trial counsel responded, "I am
satisfied [that the assault with intent to ravish conviction] was the same offense,
basically, that we have here today and our laws concerning criminal sexual
conduct." In ruling the prior assault with intent to ravish conviction could enhance
Bowers' sentence to LWOP, the trial court found "as [Bowers' counsel] indicated,
this particular offense, that is, assault with intent to ravish, is the same as assault
with intent to commit criminal sexual conduct in either the first or the second
degree which comes within the most serious crime classification." Trial counsel
did not object to this ruling, and the trial court sentenced Bowers to LWOP. Based
on the foregoing, we have concerns trial counsel did not challenge the use of the
prior assault with intent to ravish conviction on the basis that it was not the
equivalent to first or second-degree CSC. Instead, trial counsel actually agreed
with the State that the prior conviction is equivalent to first or second-degree CSC
and could be used as a "most serious offense" to impose LWOP pursuant to the
two-strikes law.

However, we need not address whether the PCR court's finding is clearly
erroneous. Despite the foregoing, PCR counsel did not raise the issue of the use of
the assault with intent to ravish prior conviction as a "most serious offense" to the
PCR court. At the PCR hearing, PCR counsel argued Bowers' only ground for
challenging sentencing was trial counsel's failure to challenge the sentence based
on the prior conviction of common law robbery. PCR counsel did not provide the
PCR court with any arguments, testimony, objections, or case law that trial counsel
was ineffective in challenging the LWOP sentence based on the use of Bowers'
prior conviction for assault with intent to ravish as a "most serious offense."
Similarly, PCR counsel did not provide the PCR court with any arguments that
trial counsel's errors prejudiced Bowers or subjected him to an increased sentence.
See Patrick v. State, 349 S.C. 203, 207, 562 S.E.2d 609, 611 (2002) (noting the
burden of proof is on a PCR applicant to prove trial counsel was ineffective and
trial counsel's errors prejudiced the applicant). Additionally, in Bowers' two Rule
59(e), SCRCP motions to alter or amend the judgment, PCR counsel alleged trial
counsel was ineffective for failing to challenge the LWOP sentence based upon his
prior conviction for common law robbery, but did not allege trial counsel was
ineffective for failing to challenge the LWOP sentence based upon the prior assault
with intent to ravish conviction. Further, the Rule 59(e) motions did not challenge
the PCR court's finding on trial counsel's challenge to the use of the prior assault
with intent to ravish conviction as a "most serious offense." Because Bowers
failed to meet his burden of proof, we hereby affirm the decision of the PCR
court.1 See Terry v. State, 394 S.C. 62, 66, 714 S.E.2d 326, 329 (2011) ("A PCR
applicant bears the burden of establishing he is entitled to relief."); id. ("To prove
counsel was ineffective, the applicant must show counsel's performance was
deficient and the deficient performance caused prejudice to the applicant's case.").2

AFFIRMED.

SHORT, THOMAS, and PIEPER, JJ., concur.

1
It is possible the prior conviction could have met the elements of only third-
degree CSC, and therefore, was not properly utilized for LWOP purposes;
however, the details of the prior conviction are not reflected in the record.
2
The availability of any other collateral relief proceeding arising from the current
PCR action, such as habeas corpus, is not before us.