Benson 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 239(d)(2),
SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Mario Benson, Respondent

v.

State of South Carolina, Petitioner

Appeal From Spartanburg County

J. Mark Hayes, II, Circuit Court Judge

Unpublished Opinion No. 2007-UP-523

Submitted October 1, 2007 – Filed November
13, 2007

REVERSED

Assistant Attorney General Lance S. Boozer and Assistant Deputy
Attorney General Salley W. Elliott, both of Columbia, for Petitioner.

Assistant Appellate Defender Robert Pachak, of Columbia, for
Respondent.

PER CURIAM: 
Mario Benson filed a petition for post-conviction relief (PCR).  Granting
Benson’s petition, the trial court ordered a new trial.  The State petitioned
this court for certiorari.  The parties briefed the issues and after review, we
reverse.[1]

FACTS

Benson
pled guilty to two counts of trafficking crack cocaine and one count of
possession with intent to distribute crack cocaine.  After a plea hearing, the
trial judge sentenced Benson to concurrent imprisonment terms of fifteen years
on each trafficking charge and ten years on the possession charge.  Benson did
not appeal. 

Benson later filed
this PCR action alleging, among other claims, that his counsel was ineffective
in:  1) failing to properly investigate a search and seizure issue; and 2)
failing to advise Benson of his right to challenge the search and seizure at a
trial. 

At the plea
hearing, Benson admitted telling his counsel one version of the underlying
facts.  The judge questioned Benson about whether counsel explained potential
defenses.  Plea counsel confirmed, stating:  “[W]e discussed the exclusion of
evidence and the possibilities there and discussed perhaps the legal searches
and seizures.”  Benson agreed, stating:  “I recall we talked about search and
seizure.”  Benson then admitted he did not have a defense and knew of no reason
why he should not be found guilty.  The judge explained Benson’s rights to him
and the solicitor recited the facts.

The
recital indicated that following a traffic stop on February 3, 1999, Benson
consented to a vehicle search resulting in the discovery of crack cocaine.  The
solicitor also stated that on June 9, 2000, the police stopped Benson after
receiving information from a confidential informant that Benson was
transporting drugs.  Benson gave the officers permission to search his vehicle
and person.  When nothing was located, Benson allowed the officers to search
his residence and “basically told [the officers] where the drugs were
located.”  Benson agreed with the facts as presented and pled guilty.

At the PCR hearing,
Benson argued plea counsel failed to investigate.  Additionally, Benson provided
a different version of the underlying facts.  Under this version, Benson’s first
stop occurred as a result of his speeding.

The officer found Benson had
an outstanding arrest warrant and placed him in the back of the patrol car.  Benson
then consented to a search of the car.  The search turned up a film canister containing
drugs. 

As
to the second search, Benson testified he was stopped as a result of a
confidential informant’s tip.  Benson allowed the officers to search his car
and when they found nothing they searched Benson’s person and found a key.  Using
the key, the officers attempted to open four different apartments.  The key fit
the door to Benson’s girlfriend’s apartment.  Benson stated the officers found
the drugs in her apartment only after interrogating Benson and threatening to
arrest his girlfriend and take his child.  Benson admitted to ownership of the
drugs. 

Benson alleged he
told his plea counsel this version of the facts and argued counsel was
ineffective for failing to investigate and failing to move for suppression of
the drugs and Benson’s confession.  Benson averred his counsel never told him
of his right to have a suppression hearing and if he had known he would not
have pled guilty.  When questioned regarding his admittance of the facts as
presented at the plea hearing he stated:  “Well, I didn’t know I was violated –
my Constitutional rights were violated.  I was ignorant of the law and I didn’t
know and I was thinking I was going to do five years of a fifteen year
sentence.” 

Plea
counsel testified at the PCR hearing stating the facts as recited at the plea hearing
were as described to him by Benson and consistent with the incident reports.  Also,
counsel testified that if Benson had wanted to go to trial, counsel would have
filed a motion to suppress.   

The
PCR court found trial counsel ineffective for failure to investigate and
properly advise Benson that a motion to exclude would have been successful
based on:  1) an unlawful detention by the officers after a routine traffic
stop; and 2) an illegal warrantless search.  The court also found the State
offered no evidence on the legality of the search other than the testimony of
the plea counsel.  The court thus granted PCR and ordered a new trial.

STANDARD OF REVIEW

The appellate court gives great deference to the post-conviction
relief court’s findings of fact and conclusions of law.  Dempsey v. State, 363
S.C. 365, 368, 610 S.E.2d 812, 814 (2005).  On review, a PCR judge’s findings
will be upheld if there is any evidence of probative value sufficient to
support them.  Cherry v. State, 300 S.C. 115, 119, 386 S.E.2d 624, 626
(1989).  The Court will not uphold the findings when there is no probative
evidence to support them.  Holland v. State, 322 S.C. 111, 113, 470
S.E.2d 378, 379 (1996). 

LAW/ANALYSIS

The State contends
the PCR court erred in finding there was probative evidence to support Benson’s
claims that plea counsel was ineffective and that Benson should receive a new
trial.  We agree. 

When
alleging ineffective assistance of counsel after a guilty plea, an applicant in
a PCR action must show:  1) counsel’s representation fell below an objective
standard of reasonableness; and 2) but for counsel’s unprofessional errors,
there is a reasonable probability the applicant would not have pled guilty but
would have insisted upon going to trial.  Jordan v. State, 297
S.C. 52, 54, 374 S.E.2d 683, 684 (1988).  The burden is on the applicant in a
post-conviction proceeding to prove the allegations in his application.  Butler v. State, 286 S.C. 441, 442, 334 S.E.2d 813, 814 (1985). 

The
PCR court essentially found plea counsel ineffective for failure to investigate
and failure to request a suppression hearing based on the applicant’s testimony
at the PCR hearing.[2] 
We conclude the focus must be on whether the plea counsel was ineffective based
on the knowledge he had at the time of the plea.  See Harres v.
Leeke, 282 S.C. 131, 133, 318 S.E.2d 360, 361 (1984) (review of a PCR
action arising from a guilty plea requires an examination of the records of
both the plea proceeding and the PCR hearing).

The
record does not contain probative evidence to support the finding that plea counsel
was ineffective in failing to investigate and file a motion to suppress based
on the facts evident at the time of the plea hearing.  Benson admitted to the
State’s version of the facts at the plea hearing.  These facts were consistent
with the incident reports and plea counsel’s PCR testimony recollecting his
knowledge at the time of the plea hearing.  The routine nature of a plea
hearing is not an invitation to answer queries untruthfully.  Wolfe v. State, 326
S.C. 158, 164-65, 485 S.E.2d 367, 370-71 (1997).  Furthermore, counsel
error is generally cured by an applicant’s acknowledgements at a plea hearing.  See id. (finding any possible error by trial counsel cured by
applicant’s acknowledgements at the plea hearing).  Here, because Benson acknowledged at the plea hearing
that the facts were as recited by the solicitor, there was no need for counsel
to investigate or move to suppress the evidence.  Ergo, we find no ineffective
representation of counsel.  

Moreover,
we find that plea counsel’s negotiations on Benson’s behalf proved advantageous. 
The plea court accepted the negotiated plea of fifteen years imprisonment for
the trafficking offenses and ten years on the possession with intent to
distribute offense, all to run concurrently.  These offenses carry maximum
terms that could have resulted in sentences requiring Benson to serve a much
longer prison term.  See Bright
v. State, 365 S.C. 355, 359-60, 618
S.E.2d 296, 298 (2005) (considering trial counsel’s plea negotiation
efforts and results in PCR action alleging ineffective assistance of counsel).

Accordingly,
the order granting PCR and a new trial is

REVERSED.

HEARN,
C.J., STILWELL, J., and GOOLSBY, A.J., concur.

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

[2] We note the ultimate issues regarding the legality of the stops,
searches, and admissibility of the evidence were not proper for consideration
on post-conviction relief.  See Simmons v. State, 264 S.C. 417,
422-23, 215 S.E.2d 883, 885 (1975) (finding post-conviction relief action not
proper forum to determine sufficiency of evidence issue).