Dennis Cumbee, Jr. 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

Dennis Cumbee, Jr., Petitioner,

v.

State of South Carolina, Respondent.

Appellate Case No. 2020-000966

Appeal From Georgetown County
William H. Seals, Jr., Circuit Court Judge

Unpublished Opinion No. 2024-UP-321
Submitted September 1, 2024 – Filed October 2, 2024

AFFIRMED AS MODIFIED

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

Attorney General Alan McCrory Wilson and Assistant
Attorney General Ambree Michele Muller, both of
Columbia, for Respondent.

PER CURIAM: This court granted certiorari to review the post-conviction relief
(PCR) court's finding that Petitioner Dennis Cumbee, Jr. failed to prove his plea
counsel was ineffective in (1) misadvising him that he would be required to serve
every day of his thirty-five-year sentence, and (2) failing to move to withdraw
Cumbee's guilty plea after the plea court asserted he would not be eligible for any
type of early release. We affirm pursuant to Rule 220(b), SCACR.

1. We hold there was probative evidence in the record to support the PCR court's
finding that plea counsel was not ineffective in misadvising Cumbee regarding his
sentence. Plea counsel was deficient in misinforming Petitioner that he would be
eligible for early release. See S.C. Code Ann. § 16-3-20(A) (2015) (explaining that
a person sentenced to a mandatory minimum term ranging from thirty years to life
for murder is not eligible for parole, any early release program, or any other credits
which would reduce his sentence); Frasier v. State, 351 S.C. 385, 389, 570 S.E.2d
172, 174 (2002) (holding that plea counsel is deficient if he "actively misinforms"
a defendant about parole eligibility). However, the plea hearing transcript reflects
the plea court correctly advised Cumbee he would have to serve the entirety of his
thirty-five-year sentence. See Burnett v. State, 352 S.C. 589, 592, 546 S.E.2d 144,
145 (2003) ("When considering an allegation . . . that a guilty plea was based on
inaccurate advice of counsel, the transcript of the guilty plea hearing will be
considered to determine whether information conveyed by the plea judge cured any
possible error made by counsel."). Additionally, we find Cumbee failed to
demonstrate that but for counsel's erroneous advice, he would have proceeded to
trial: Cumbee acknowledged the veracity of the State's evidence during both his
plea and PCR hearings, he testified inconsistently as to what motivated him to
accept the State's plea offer, and plea counsel testified he was hired primarily in
order to obtain a more favorable plea offer for Cumbee than his prior counsel. See
Thompson v. State, 340 S.C. 112, 116, 530 S.E.2d 294, 297 (2000) ("To establish
prejudice, the proper analysis is to determine whether there was a reasonable
probability that, but for counsel's unprofessional errors, the defendant would not
have pled guilty and would have insisted on going to trial."); Lee v. United States,
582 U.S. 357, 367 (2017) ("Where a defendant has no plausible chance of an
acquittal at trial, it is highly likely that he will accept a plea if the [State] offers
one."); Frasier, 351 S.C. at 389, 570 S.E.2d at 174 ("[I]f [plea] counsel actively
misinforms the defendant about parole eligibility, the defendant must prove he
relied on the misinformation to receive PCR.").

2. We hold the PCR court erred in finding counsel was not deficient in failing to
move to withdraw the plea. Plea counsel testified he did not understand at the time
that the plea court's colloquy contradicted his understanding of Cumbee's eligibility
for early release, and that misunderstanding was the reason that he did not attempt
to withdraw the plea. See Jordan v. State, 297 S.C. 52, 54, 374 S.E.2d 683, 685
(1988) (finding counsel deficient for failing to draw the plea court's attention to the
terms of a plea agreement and subsequently move to withdraw his client's plea
after the State breached the terms of the agreement).

However, we conclude there was probative evidence to support the PCR court's
finding that Cumbee failed to establish he was prejudiced by counsel's deficiency:
there was evidence in the record indicating Cumbee's misunderstanding of the
collateral consequences of his sentence were unrelated to his decision to plead, that
he agreed with the State's facts, and that he never intended to proceed to trial. See
Thompson, 340 S.C. at 116, 530 S.E.2d at 297 ("To establish prejudice, the proper
analysis is to determine whether there was a reasonable probability that, but for
counsel's unprofessional errors, the defendant would not have pled guilty and
would have insisted on going to trial."); Lee, 582 U.S. at 367 ("Where a defendant
has no plausible chance of an acquittal at trial, it is highly likely that he will accept
a plea if the [State] offers one."); cf. Jordan, 297 S.C. at 54, 374 S.E.2d at 685
(finding PCR applicant demonstrated he was prejudiced by counsel's failure to
withdraw his plea because the record showed his "original vehemence" in pursuing
a trial).
AFFIRMED AS MODIFIED. 1

WILLIAMS, C.J., and MCDONALD and TURNER, JJ., concur.

1
We decide this case without oral argument pursuant to Rule 215, SCACR.