Dameion Jermain Rivers 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

Dameion Jermiah Rivers, Petitioner,

v.

State of South Carolina, Respondent.

Appellate Case No. 2017-002353

Appeal from Chesterfield County
Roger E. Henderson, Circuit Court Judge

Unpublished Opinion No. 2022-UP-359
Heard February 16, 2022 – Filed September 21, 2022

AFFIRMED

Appellate Defender Taylor Davis Gilliam, of Columbia,
for Petitioner.

Attorney General Alan McCrory Wilson and Assistant
Attorney General Chelsey Faith Marto, both of
Columbia, for Respondent.

PER CURIAM: Petitioner Dameion J. Rivers brings this post-conviction relief
(PCR) challenge to his guilty plea, asking for a new trial on the basis that plea
counsel (1) did not adequately investigate the testimony of a witness and (2)
misinformed Rivers about when Rivers would become eligible for parole. We
affirm.

On August 27, 2007, Tavish Dunlap (Victim) was shot outside Pop's
Gameroom in Pageland. Victim was airlifted to a Charlotte hospital, where he was
pronounced dead.
Rivers was indicted for murder and possession of a weapon during the
commission of a violent crime and proceeded to trial on August 30, 2010. Among
the evidence against him was a statement given by Kory Little to police, indicating
that Rivers shot Victim. Rivers pled guilty to voluntary manslaughter and
possession of a weapon before the second day of the trial began. At the plea hearing,
Rivers told the circuit court that he did not intend to shoot Victim, saying: "I never
even pulled the trigger. I never pulled the trigger. I fell back on the car. The gun
went off, and it hit him."
Plea counsel told the court that he was hesitant about a self-defense strategy
because "the first thing is, was he at fault in bringing about the immediate difficulty,"
and the "duty to retreat" could have been an issue. Additionally, counsel said: "I
would never get an accident charge to the jury because he was acting unlawfully to
start with."
During the plea colloquy, the circuit court and Rivers discussed whether
Rivers had been informed of the state's "no parole" policy for certain crimes. The
court asked: "have you discussed with your attorney the 85 Percent Rule or anything
like that? Parole eligibility?" Rivers responded: "No, sir." After further discussion,
the court declared that it found Rivers's "decision to enter this plea is freely,
voluntarily and intelligently made," then imposed a sentence of 19 years for
manslaughter, in addition to a concurrent five-year sentence for the plea related to
weapons possession.

In 2011, Rivers filed a PCR application. Rivers challenged his guilty plea on
several grounds, the relevant ones for this appeal being that plea counsel mistakenly
advised Rivers that he would be eligible for parole after having served sixty-five
percent of his sentence; and that plea counsel did not interview Little.

At the PCR hearing, Rivers testified that his plea counsel "said as long as I
don't get in trouble [during his confinement], I do 65% and I can come home."
Rivers said that if he had known differently, "I would've pled not guilty. I would've
[gone] to trial." Rivers also testified that if he had known about certain issues with
Little's statement, "I believe I would've pled not guilty and [gone] to trial because
then I would [have] been able to dispute the State's theory that I brought on [the]
initial difficulty by stepping out [of] the car with a gun . . . ." Rivers also said that
the gun was in his pants when he got out of the car, rather than in his hand.
Little testified that he had been coerced into writing the statement
incriminating Rivers. However, Little confirmed that he was at Pop's when the
shooting occurred. He also testified that "a car pulled up and somebody got out [of]
the car with the long gun, I don't know who it was because it was dark." According
to Little, the person from the car argued with the victim then "was backing up trying
to get back in the car." Little "heard a shot go off[, he] saw [the victim] fall[,] and
[he] ran inside Pop's and called 911." Little said his statement identified Rivers only
because of the pressure from the police and he would have told Rivers's plea counsel
had he been interviewed.
Plea counsel also testified at the PCR hearing. He explained his decision not
to interview Little. "Well, I probably wouldn't get anything but a regurgitation of
what he already had given in a statement. I mean, I don't necessarily try to interview
people who I know are going to be against me, are going to testify against me in
court for the State." Plea counsel said the statement informed his advice to Rivers
to plead guilty. Plea counsel also answered affirmatively when PCR counsel asked
if knowledge of Little's recantation "would . . . have given you any ground to advise
him, Mr. Rivers, differently." Later in the hearing, discussing the impact of the
testimony at the PCR hearing by Little and another witness,1 plea counsel explained
that he would have changed his advice "[b]ecause you've got, obviously, a strong
self-defense argument and even if the gun went off accidentally, you know, I think
you [] might still get a charge on it[,] everything you wanted."
However, plea counsel denied misstating the parole eligibility threshold,
testifying that he "would've said 85% of that even though I didn't reference it -- even
though I didn't reference it in the guilty plea, I know I told him 85%." Plea counsel
said he "should've spoken up" when Rivers suggested at the plea hearing that he was
unaware of the 85% requirement. "But I -- it's so automatic that I would've told him
85% because those are traditional run-of-the-mill arguments in PCR[]s that I've
faced for the last 35 years since the [statute] was in [place]."
Plea counsel also testified: "I feel a lot more comfortable about being here in
this chair with him being sentenced to eighteen (18) [years] than I [would] having
lost a trial and he's looking at trying to get out from underneath a life sentence."

1
This court did not grant certiorari on the question of evidence from the other
witness.
Noting his perception of the conservative bent of Chesterfield County, plea counsel
essentially stood by his advice. "I'm glad Dameion took that plea."

The PCR court denied relief on all grounds. Specifically, the court found plea
"[c]ounsel's testimony credible[] and that the testimony presented by Applicant and
his witnesses was less than credible." The PCR court found that plea counsel was
not deficient and Rivers had shown no prejudice from plea counsel's actions.
Analyzing Little's testimony under the rubric of "newly-discovered evidence," the
PCR court rejected the notion that the testimony was "so material to the issue of guilt
or innocence that it would have reasonably led to an acquittal by a jury."

Rivers filed a Rule 59(e) motion. The PCR court denied the motion.2 This
appeal followed. In October 2020, this court granted certiorari as to plea counsel's
investigation of Kory Little and his advice on parole eligibility.
I. Counsel's Pretrial Investigation
Under Strickland v. Washington, "[a] convicted defendant's claim that
counsel's assistance was so defective as to require reversal of a conviction or death
sentence has two components. First, the defendant must show that counsel's
performance was deficient. . . . Second, the defendant must show that the deficient
performance prejudiced the defense." 466 U.S. 668, 687 (1984).
In the context of a guilty plea, the court must determine
whether 1) counsel's advice was within the range of
competence demanded of attorneys in criminal cases—
i.e., was counsel's performance deficient, and 2) [] there is
a reasonable probability that, but for counsel's errors, the
defendant would not have pled guilty.

Smith v. State, 369 S.C. 135, 138, 631 S.E.2d 260, 261 (2006); see also Hill v.
Lockhart, 474 U.S. 52, 59 (1985) ("[I]n order to satisfy the 'prejudice' requirement,
the defendant must show that there is a reasonable probability that, but for counsel's
errors, he would not have pleaded guilty and would have insisted on going to trial."
(footnote omitted)). In Lee v. United States, the U.S. Supreme Court noted:

2
The record includes an amended order denying the Rule 59(e) motion; the only
thing that appears to have been changed from the original order was the county
where it was signed.
A defendant without any viable defense will be highly
likely to lose at trial. And a defendant facing such long
odds will rarely be able to show prejudice from accepting
a guilty plea that offers him a better resolution than would
be likely after trial. But that is not because the prejudice
inquiry in this context looks to the probability of a
conviction for its own sake. It is instead because
defendants obviously weigh their prospects at trial in
deciding whether to accept a plea.
Lee v. United States, 137 S. Ct. 1958, 1966, 198 L. Ed. 2d 476 (2017) (citation
omitted); see id. at 1967 n.3 (stating that "[w]here an attorney error allegedly affects
how a trial would have played out, we analyze that error's effects on a defendant's
decisionmaking by making a prediction of the likely trial outcome.").
In this case, the PCR judge properly found that Rivers was not prejudiced by
plea counsel's alleged ineffectiveness in refusing to conduct a more thorough
investigation.

We acknowledge that our supreme court has found that the undisputed
testimony of a petitioner that he or she would not have pleaded guilty can, on its
own, form the basis for a finding of prejudice. See, e.g., Alexander v. State, 303 S.C.
539, 543, 402 S.E.2d 484, 485–86 (1991) ("[T]he only evidence in the record on this
point is petitioner's own testimony that had trial counsel not misinformed him that
he would face a potential life sentence if he proceeded to trial, he would not have
pled guilty. Thus, the second part of the test has been met."); Smith v. State, 369
S.C. at 138, 631 S.E.2d at 261 (finding against petitioner, but noting: "The
defendant's undisputed testimony that he would not have pled guilty to the charges
but for trial counsel's advice is sufficient to prove that defendant would not have pled
guilty.").

However, in at least one recent decision, the court has suggested that such
testimony is not always enough to fulfill the prejudice prong. See Stalk v. State, 383
S.C. 559, 563, 681 S.E.2d 592, 595 (2009) (finding that "Hill makes clear that this
prejudice prong ordinarily requires more than simply a defendant's assertion that but
for counsel's deficient performance he would not have pled but would have gone to
trial"). And in other cases, our supreme court has noted that such testimony can be
outweighed by other evidence. See Goins v. State, 397 S.C. 568, 575, 726 S.E.2d 1,
4 (2012) ("Although Goins testified at the PCR hearing that he accepted the plea
because of the erroneous advice on the suppression of the evidence, his testimony
specifically was found not to be credible. We therefore find evidence to support the
PCR court's finding that Goins failed to prove he was prejudiced by counsel's
ineffective assistance because he has not demonstrated he would have gone to trial
absent the erroneous advice."); Taylor v. State, 404 S.C. 350, 362, 745 S.E.2d 97,
103 (2013) ("Despite Petitioner's assertions to the contrary, there is probative
evidence in the Record before us that he would not have chosen to proceed to trial
on the Georgetown County charges had counsel told him about the strike."); see also
Lee, 137 S. Ct. at 1967 (finding, in a case about deficient advice regarding
immigration consequences of a guilty plea, that "[c]ourts should not upset a plea
solely because of post hoc assertions from a defendant about how he would have
pleaded but for his attorney's deficiencies. Judges should instead look to
contemporaneous evidence to substantiate a defendant's expressed preferences.").

In this case, there is little reason to believe that plea counsel's advice would
have changed based on Little's recantation. See Hill, 474 U.S. at 59 ("[W]here the
alleged error of counsel is a failure to investigate or discover potentially exculpatory
evidence, the determination whether the error 'prejudiced' the defendant by causing
him to plead guilty rather than go to trial will depend on the likelihood that discovery
of the evidence would have led counsel to change his recommendation as to the plea.
This assessment, in turn, will depend in large part on a prediction [of] whether the
evidence likely would have changed the outcome of a trial."). That is because there
is little reason to believe that the recantation evidence, even if heard by a jury, would
have led to Rivers's acquittal. One of the major factors in plea counsel's decision to
urge a plea, and Rivers's decision to take one, was the notion that Rivers's self-
defense claim would be weakened by Rivers having presented a firearm in the
confrontation with Victim. Little's testimony at the PCR hearing—"a car pulled up
and somebody got out [of] the car with the long gun"—supports that version of
events. Little claims the alleged coercion led to his identification of Rivers as the
person stepping out of the car with the gun, but Rivers has at times conceded that he
shot Victim. 3 Cf. Glover v. State, 318 S.C. 496, 498, 458 S.E.2d 538, 540 (1995)
(stating, in a parenthetical, that because "an alibi derives its potency as a defense
from the fact that it involves the physical impossibility of the accused's guilt, a
purported alibi which leaves it possible for the accused to be the guilty person is no
alibi at all" (citing State v. Robbins, 275 S.C. 373, 375, 271 S.E.2d 319, 320 (1980)).
Even the element of Little's PCR testimony that could have helped Rivers's potential
accident strategy at trial—the suggestion that the individual from the car "was
backing up trying to get back into the car"—is not enough "to undermine confidence
in the outcome." See Porter v. State, 368 S.C. 378, 383–84, 629 S.E.2d 353, 356
(2006) ("[T]he applicant must show that there is a reasonable probability that he

3
His testimony on this point has not always been clear.
would have insisted on proceeding to trial on the matter instead of pleading guilty."
(emphasis added)), abrogated on other grounds by Smalls v. State, 422 S.C. 174,
810 S.E.2d 836 (2018); Strickland, 466 U.S. at 694 ("A reasonable probability is a
probability sufficient to undermine confidence in the outcome."); see also State v.
Goodson, 312 S.C. 278, 280, 440 S.E.2d 370, 372 (1994) ("For a homicide to be
excusable on the ground of accident, it must be shown that the killing was
unintentional, that the defendant was acting lawfully, and that due care was exercised
in the handling of the weapon." (citing State v. Brown, 205 S.C. 514, 521, 32 S.E.2d
825, 828 (1945)).
Nor is it determinative that plea counsel expressed some misgivings about his
advice. We review for prejudice under an objective standard. See Smith, 369 S.C.
at 138, 631 S.E.2d at 261 ("In the context of a guilty plea, the court must determine
. . . if there is a reasonable probability that, but for counsel's errors, the defendant
would not have pled guilty." (emphasis added)); Harrington v. Richter, 562 U.S. 86,
112 (2011) ("The likelihood of a different result must be substantial, not just
conceivable." (citing Strickland, 466 U.S. at 693) (emphasis added)); see also United
States v. Dominguez, 998 F.3d 1094, 1111 (10th Cir. 2021) ("Consistent with the
proposition that a defendant's say-so is not enough, we have indicated that this
prejudice inquiry is largely an objective one."), cert. denied, No. 21-6685, --- S.Ct.
---- (May 31, 2022); cf. Harrington, 562 U.S. at 109–10 ("After an adverse verdict
at trial[,] even the most experienced counsel may find it difficult to resist asking
whether a different strategy might have been better, and, in the course of that
reflection, to magnify their own responsibility for an unfavorable
outcome. Strickland, however, calls for an inquiry into the objective reasonableness
of counsel's performance, not counsel's subjective state of mind."). 4

For those reasons, there is not a reasonable chance that Rivers would have
decided to forego the plea he made, and therefore, he cannot show prejudice.
II. Plea Counsel's Advice on Parole

Rivers also argues that the PCR court erred in failing to find that counsel's
advice on parole was deficient. Given the testimony presented at the PCR hearing,
the PCR court was justified in finding that the performance of counsel was not
deficient.

4
We recognize, of course, that the Harrington court made this comment in the
course of its discussion about deficiency. However, we believe the central insight
shows why the "reflection" of counsel should not be determinative.
There is evidence in the record to support the PCR court's ruling. Specifically,
the PCR court found that plea counsel was credible, and plea counsel testified: "I
know I told him 85%." That distinguishes this case from Simuel v. State, 390 S.C.
267, 271 & n.2, 701 S.E.2d 738, 739 & n.2 (2010). In Simuel, our supreme court
concluded that the PCR court's ruling lacked evidentiary justification when counsel
"state[d] that he 'probably' spoke to Petitioner about his right to a direct appeal
because that was his normal practice." Here, if plea counsel's testimony is accurate,
as the PCR court found it to be, then he advised his client properly.

AFFIRMED.

GEATHERS and HILL, JJ., and LOCKEMY, A.J., concur.