Stone v. South Carolina

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

Allen Stone, Respondent,

v.

State of South Carolina, Petitioner.

Appellate Case No. 2018-001847

ON WRIT OF CERTIORARI

Appeal From Charleston County
Thomas A. Russo, Circuit Court Judge

Unpublished Opinion No. 2021-UP-372
Submitted October 1, 2021 – Filed November 3, 2021

REVERSED

Attorney General Alan McCrory Wilson and Senior
Assistant Deputy Attorney General Megan Harrigan
Jameson, both of Columbia, for Petitioner.

Appellate Defender David Alexander, of Columbia, for
Respondent.
PER CURIAM: After the circuit court revoked Allen Stone's probation in full, the
post-conviction relief (PCR) court granted relief for ineffective assistance of counsel
on three grounds. The law requires us to reverse the PCR court's order.

"In post-conviction proceedings, the burden of proof is on the applicant to prove the
allegations in his application." Speaks v. State, 377 S.C. 396, 399, 660 S.E.2d 512,
514 (2008). "We defer to a PCR court's findings of fact and will uphold them if
there is any evidence in the record to support them." Mangal v. State, 421 S.C. 85,
91, 805 S.E.2d 568, 571 (2017). However, "[w]e do not defer to a PCR court's
rulings on questions of law." Id.

"In South Carolina . . . all persons charged with probation violations have a right to
counsel and must be informed of this right pursuant to court rules and case law."
Turner v. State, 384 S.C. 451, 454, 682 S.E.2d 792, 793 (2009). South Carolina
courts apply the Strickland test to evaluate claims of ineffective assistance of
probation counsel. Id. at 456, 682 S.E.2d at 794. "In order to establish a claim for
ineffective assistance of counsel, the applicant must show that: (1) counsel failed to
render reasonably effective assistance under prevailing professional norms, and (2)
counsel's deficient performance prejudiced the applicant's case." Speaks, 377 S.C.
at 399, 660 S.E.2d at 514.

Administrative Hearing Officer's Recommendation

The PCR court found revocation counsel was ineffective for failing to advise the
revocation court that an administrative hearing officer recommended Stone's
probation be revoked for one year rather than revoked in full. The State's lead
argument is that the PCR court ignored testimony that Stone made a strategic
decision not to mention this recommendation because Stone wished to avoid even a
one-year revocation. The State also argues that the record reflects the revocation
court was aware of the hearing officer's recommendation.

We agree with both arguments. First, Stone's revocation counsel testified at the PCR
hearing that the reason she did not initially point the revocation court to the hearing
officer's recommendation was because Stone sought to receive a sentence of less
than a year. Stone's desire for a "lighter" sentence is a valid strategy for not
specifically referencing the recommendation. See McKnight v. State, 378 S.C. 33,
43, 661 S.E.2d 354, 359 (2008) ("Where trial counsel articulates a valid reason for
employing a certain trial strategy, counsel will not be deemed ineffective."); Council
v. State, 380 S.C. 159, 175, 670 S.E.2d 356, 364 (2008) ("Counsel's strategy will be
reviewed under 'an objective standard of reasonableness.'" (quoting Ingle v.
State, 348 S.C. 467, 470, 560 S.E.2d 401, 402 (2002))).

Second, the record reflects that the revocation court had a report containing the
hearing officer's recommendation and that revocation counsel emphasized the
recommendation at the hearing on Stone's motion to reconsider his full revocation.
We hold that revocation counsel was not deficient because counsel provided the
revocation court with the administrative hearing summary, articulated a valid reason
for not specifically referencing the administrative hearing officer's recommendation
at the revocation hearing, and emphasized the recommendation at the
reconsideration hearing. See Smith v. State, 386 S.C. 562, 567, 689 S.E.2d 629, 632
(2010) ("Counsel's performance is accorded a favorable presumption, and a
reviewing court proceeds from the rebuttable presumption that counsel 'rendered
adequate assistance and made all significant decisions in the exercise of reasonable
professional judgment.'" (quoting Strickland v. Washington, 466 U.S. 668, 690
(1984))).

We find Stone cannot show prejudice because the revocation court denied Stone's
motion to reconsider after revocation counsel repeatedly brought the hearing
officer's recommendation to the court's attention. See Taylor v. State, 404 S.C. 350,
359, 745 S.E.2d 97, 102 (2013) (holding that to establish prejudice, an applicant
must show that "but for counsel's error, there is a reasonable probability the result of
the proceedings would have been different"); id. ("A reasonable probability is a
probability sufficient to undermine confidence in the outcome." (quoting Strickland,
466 U.S. at 694)).

Felony Charges

The PCR court ruled that revocation counsel was ineffective for failing to advise the
revocation court Stone had not been arrested for any felony charges while on
probation. The State argues this ruling is erroneous and not supported by the
evidence. Here as well, we agree.

First, we hold revocation counsel was not deficient. Although revocation counsel
did not emphasize at the revocation hearing that Stone's arrest for third-degree
burglary arose from events that occurred before Stone began probation, the State
accurately described the sequence of events—the State told the court that Stone had
been rearrested for third-degree burglary but based on preprobation conduct.
Second, we hold Stone failed to show he was prejudiced. Stone specifically told the
revocation court at the reconsideration hearing that he did not commit a felony while
on probation, and Stone's probation arrest warrant confirmed Stone was originally
arrested for third-degree burglary on October 11, 2013—before Stone began
probation. Stone's counsel correctly informed the revocation court that Stone had
been rearrested for third-degree burglary while on probation. The court was
informed those charges stemmed out of preprobation conduct, but it nevertheless
revoked Stone's probation in full and denied his motion to reconsider that sentence.

Court Absences

The PCR court's third basis for relief was that revocation counsel was ineffective for
failing to explain Stone's court absences. The State argues the record refutes this
finding. As above, we agree.

First, revocation counsel was not deficient. At the first hearing—the revocation
hearing—revocation counsel specifically noted Stone had been living in "Tent City,"
traveling anywhere was difficult for Stone, Stone suffered from various mental and
physical health issues, and Stone had financial issues. Revocation counsel also noted
Stone had been "in and out" of the hospital since 2015 and was receiving treatment.
What is more, at the reconsideration hearing, counsel reiterated Stone's history of
alcoholism and depression. Although revocation counsel did not specifically
connect these circumstances to Stone's failure to appear in court, counsel sufficiently
conveyed to the revocation court the hardships—both financial and medical—Stone
faced regarding his ability to appear in court. Accordingly, revocation counsel was
not deficient.

Second, Stone failed to show he was prejudiced by revocation counsel's alleged
deficiency. Here, revocation counsel conveyed to the revocation court Stone's
physical health, mental health, and financial hardships, which helped to explain his
charges for failure to appear for court. Thus, Stone cannot show prejudice because
the revocation court was made aware of Stone's physical, mental, and financial
hardships, which impacted his ability to appear in court. Accordingly, the evidence
does not support the PCR court's finding that revocation counsel was ineffective for
failing to provide the revocation court an explanation as to why Stone failed to
appear in court on two occasions, resulting in Stone's arrest.

Stone's evidence suggested he would benefit more from treatment than incarceration,
and revocation counsel even came to the reconsideration hearing armed with a letter
from the victim in Stone's underlying robbery explaining that the victim did not
oppose a reduction in Stone's sentence as long as Stone received alcohol treatment.
Still, we do not see a legal basis for granting relief. The revocation court possessed
the disputed evidence, the evidence was emphasized to the court on reconsideration,
and reconsideration was denied. Therefore, the PCR court's order is

REVERSED.1

KONDUROS, HILL, and HEWITT, JJ., concur.

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