State v. Gordon

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

The State, Respondent,

v.

Antonio Gordon, Appellant.

Appellate Case No. 2013-000975

Appeal From York County
John C. Hayes, III, Circuit Court Judge

Unpublished Opinion No. 2016-UP-172
Submitted March 1, 2016 – Filed April 13, 2016

AFFIRMED

Antonio Gordon, pro se.

Attorney General Alan McCrory Wilson, Chief Deputy
Attorney General John W. McIntosh, and Senior
Assistant Deputy Attorney General Donald J. Zelenka, all
of Columbia; and Solicitor Kevin Scott Brackett, of
York, for Respondent.

PER CURIAM: Antonio Gordon appeals the trial court's order denying his
motion for a new trial based on after-discovered evidence. Gordon argues the trial
court abused its discretion when it (1) found he could not file a Rule 29(b),
SCRCrimP, motion because he pled guilty, (2) misapplied the scope of review in
determining Gordon's after-discovered evidence was not credible, and (3) found
Gordon's evidence was not after-discovered. Gordon also objects to an additional
sustaining ground raised by the State regarding Gordon's failure to comply with the
affidavit requirement, arguing the State failed to raise this ground to the trial court.
We affirm1 pursuant to Rule 220(b), SCACR, and the following authorities:

1. As to whether the trial court misapplied the scope of review in determining
Gordon's after-discovered evidence was not credible: State v. Johnson, 376 S.C. 8,
11, 654 S.E.2d 835, 836 (2007) ("A trial [court] has the discretion to grant or deny
a motion for a new trial, and [its] decision will not be reversed absent a clear abuse
of discretion."); State v. Mercer, 381 S.C. 149, 167, 672 S.E.2d 556, 565 (2009)
("The deferential standard of review constrains us to affirm the trial court if
reasonably supported by the evidence."); State v. Porter, 269 S.C. 618, 621, 239
S.E.2d 641, 643 (1977) ("The credibility of newly-discovered evidence offered in
support of a motion for a new trial is a matter for determination by the [trial court]
to whom it is offered." (quoting State v. Mayfield, 235 S.C. 11, 34, 109 S.E.2d 716,
729 (1959))); id. ("Recantation of testimony ordinarily is unreliable and should be
subjected to the closest scrutiny when offered as [a] ground for a new trial."
(quoting Mayfield, 235 S.C. at 35, 109 S.E.2d at 729)); State v. Wright, 269 S.C.
414, 420-21, 237 S.E.2d 764, 767-68 (1977) (finding evidence supported the trial
court's determination the recanted testimony of one of the witnesses was not
believable, noting the other witness against the appellant had not recanted); State v.
Harris, 391 S.C. 539, 544-45, 706 S.E.2d 526, 529 (Ct. App. 2011) (finding the
record supported the trial court's assessment that the circumstances surrounding the
witness's recantation of his trial testimony and his testimony during the hearing
caused it to find the recantation testimony unreliable and noting the issue came
"down to a matter of the credibility of the witnesses, which [should be left] to the
trial court's discretion").

2. As to the remaining issues: Futch v. McAllister Towing of Georgetown, Inc.,
335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (holding an appellate court need
not address remaining issues when resolution of a prior issue is dispositive).

AFFIRMED.

SHORT, KONDUROS, and GEATHERS, JJ., concur.

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