Parker 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

Marcus J. Parker, Petitioner,

v.

State of South Carolina, Respondent.

Appeal From Jasper County

Carmen Mullen, Circuit Court Judge

Unpublished Opinion No. 2011-UP-508

Heard November 1, 2011 – Filed November 18, 2011 

REVERSED AND REMANDED

Appellate
Defender Elizabeth A. Franklin-Best, of Columbia, for Petitioner.

Attorney
General Alan M. Wilson, Chief Deputy Attorney General John W. McIntosh,
Assistant Deputy Attorney General Salley W. Elliot, and Assistant Attorney
General Matthew J. Friedman, all of Columbia, for Respondent.

FEW, C.J.: In his
third post-conviction relief application, Marcus Parker claims his plea counsel
erroneously advised him he would be parole eligible on a conviction for
possession of a firearm during the commission of a dangerous crime.  The PCR
court summarily dismissed the application as successive and filed outside the
statute of limitations.  Because Parker's application states a prima facie
claim under Tilley v. State, 334 S.C. 24, 511 S.E.2d 689 (1999), we reverse
for an evidentiary hearing.

In September 2000, Parker
pled guilty to armed robbery, assault and battery with intent to kill (ABWIK),
kidnapping, and possession of a firearm during the commission of a violent
crime.  The plea judge sentenced Parker to twenty-five years' imprisonment for
armed robbery, twenty years concurrent for ABWIK, twenty-five years concurrent
for kidnapping, and five years consecutive for possession of a firearm during
the commission of a violent crime.  A person convicted of possession of a
firearm during the commission of a violent crime is not eligible for parole
during the five-year sentence.  S.C. Code Ann. § 16-23-490(C) (Supp. 2010). 

In February 2007, Parker
filed the PCR application at issue.  In his application Parker claims plea counsel
affirmatively told him he would be parole eligible for the possession of a
firearm conviction after he served his concurrent sentences.  Parker alleges he
first learned he was parole ineligible on December 15, 2006, when his Department
of Corrections caseworker told him.  Parker contends that his plea counsel was
ineffective for giving him erroneous advice about his parole eligibility and
that if he had known he would be parole ineligible, he would not have pled guilty
to possession of a firearm.  The State filed a motion for summary dismissal
contending Parker's application was successive and filed outside of the
one-year statute of limitations in section 17-27-45(A) of the South Carolina
Code (2003).  

"[T]o be entitled to
a successive PCR application, the applicant must establish that the grounds
raised in the subsequent application could not have been raised in the previous
application."  Odom v. State, 337 S.C. 256, 261, 523 S.E.2d 753,
755 (1999).  "When considering the State's motion for summary dismissal of
a[] [PCR] application, a judge must assume facts presented by an applicant are
true and view those facts in the light most favorable to the applicant."  Al-Shabazz
v. State, 338 S.C. 354, 364, 527 S.E.2d 742, 747 (2000).  "Furthermore,
summary dismissal without a hearing is appropriate only when (1) it is apparent
on the face of the application that there is no need for a hearing to develop
any facts and (2) the applicant is not entitled to relief."  Id.

Assuming the facts
presented by Parker are true, his application states a prima facie claim for
PCR under Tilley.  See 334 S.C. at 26-28, 511 S.E.2d at 690-91 (affirming
PCR court's decision to grant Tilley's fourth PCR application when the
applicant did not previously know he was parole ineligible for possession of a
firearm because he received printouts each year from the Parole Board with his
parole eligibility date).  Accordingly, we reverse and remand for an
evidentiary hearing.[1]

REVERSED and REMANDED.

THOMAS and KONDUROS,
JJ., concur.

[1] The PCR court also held Parker's "allegation of newly discovered evidence
based on parole eligibility is without merit" because plea counsel could
not be "ineffective for failing to advise a defendant regarding parole
eligibility because it is a collateral consequence of sentencing."  The
principle of law is correct, but the PCR court misconstrued Parker's claim.  See Smith v. State, 329 S.C. 280, 283, 494 S.E.2d 626, 628 (1997) ("[I]f
the defendant's attorney undertakes to advise the defendant about parole
eligibility and gives erroneous advice, then the plea may be collaterally
attacked.").  Parker does not allege counsel failed to advise him about
his parole eligibility.  He alleges counsel gave him erroneous advice about
parole eligibility, which may be attacked through a PCR application.