Cephas Cowick 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

Cephas Cowick, Petitioner,

v.

State of South Carolina, Respondent.

Appellate Case No. 2021-001155

Appeal From Darlington County
Eugene C. Griffith, Jr., Plea Judge;
Michael G. Nettles, PCR Judge

Unpublished Opinion No. 2025-UP-217
Submitted March 3, 2025 – Filed July 2, 2025

AFFIRMED

William G. Yarborough, III, and Lauren Carole Hobbis,
both of WGY Law, of Greenville, for Petitioner.

Attorney General Alan McCrory Wilson and Assistant
Attorney General Joshua Abraham Edwards, both of
Columbia, for Respondent.

PER CURIAM: Cephas Cowick (Petitioner) was indicted for two counts of
murder, criminal conspiracy, armed robbery, first-degree burglary, grand larceny,
possession of a weapon during the commission of a violent crime, and third-degree
arson. Petitioner pled guilty as indicted, and the plea court sentenced him to
concurrent sentences of life imprisonment without the possibility of parole for each
murder charge and the weapons charge, thirty years' imprisonment for armed
robbery and first-degree burglary, fifteen years' imprisonment for third-degree
arson, ten years' imprisonment for criminal conspiracy, and five years'
imprisonment for grand larceny. Petitioner did not file a direct appeal. Petitioner
filed an application for post-conviction relief (PCR), and the State responded with
a return and motion to dismiss. The PCR court dismissed Petitioner's application
on the grounds that Petitioner waived his right to bring PCR claims based on
ineffective assistance of counsel and that Petitioner waived this right knowingly,
voluntarily, and intelligently. Petitioner filed a petition for writ of certiorari
arguing the PCR court erred in dismissing his PCR application because: (1) the
ineffective assistance of counsel claims he raised fell outside the scope of the
waiver provision in his plea agreement and (2) his agreement to waive these claims
was not knowing and voluntary due to plea counsel's "constitutionally defective
advice." This court granted certiorari on both issues. We affirm.

STANDARD OF REVIEW

"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). "This [c]ourt gives great deference to the factual findings of the
PCR court and will uphold them if there is any evidence of probative value to
support them." Sellner v. State, 416 S.C. 606, 610, 787 S.E.2d 525, 527 (2016)
(quoting Jordan v. State, 406 S.C. 443, 448, 752 S.E.2d 538, 540 (2013)).
"Questions of law are reviewed de novo, and we will reverse the PCR court's
decision when it is controlled by an error of law." Id. (quoting Jamison v. State,
410 S.C. 456, 465, 765 S.E.2d 123, 127 (2014)).

LAW/ANALYSIS

Petitioner argues the PCR court erred in dismissing his PCR application because
the ineffective assistance of counsel claims he raised fell outside the scope of the
waiver provision in his plea agreement. He contends the PCR court erred in
considering letters sent from his counsel to the solicitor as "the binding terms of
the plea agreement" when the letters were not read into the record, introduced as
exhibits, or given to the plea judge. Petitioner asserts the record shows the waiver
in his plea agreement included an exception for ineffective assistance of counsel
claims. Petitioner maintains the PCR court erred in concluding he waived the right
to bring the claims raised in his PCR application because he was aware of the
claims when he pled guilty. Petitioner further argues that even if the scope of
the waiver included ineffective assistance of counsel claims, his agreement to
waive these claims was not knowing and voluntary due to plea counsel's
"constitutionally defective advice," and therefore the PCR court erred in
dismissing his application for PCR. He contends the failure by the State to
commit the entire plea agreement to writing and the plea court's lack of clarity
during the plea colloquy weighs against his waiver being knowing and
voluntary. Petitioner asserts his background, which included traumatic brain
injuries, also weighs against his waiver being knowing and voluntary. He further
avers the PCR court erred "by inserting into the analysis the standards and tests
used in other ineffective assistance of counsel scenarios that are inapplicable to
the issues at hand." We disagree.

"[A]ll plea agreements must be on the record and must recite the scope,
offenses, and individuals involved in the agreement." State v. Thrift, 312 S.C. 282,
295, 440 S.E.2d 341, 348 (1994). The right to appellate and post-conviction
review may be waived by a written plea agreement. Spoone v. State, 379 S.C. 138,
142-44, 665 S.E.2d 605, 607-08 (2008). "However, such a waiver will be held
effective only if it is knowing and voluntary." Id. at 142, 665 S.E.2d at 607. In
determining whether the waiver was knowing and voluntary, an appellate court
should consider "the particular facts and circumstances" of the case "including: (1)
the background, experience and conduct of the accused, (2) the text of the plea
agreement, and (3) the transcript of the plea hearing." Id. at 143, 665 S.E.2d at
608. "[A]lthough a defendant may waive his right to collateral review, he is
nevertheless still entitled to challenge whether the advice he received in
agreeing to that waiver was constitutionally defective." Sanders v. State, 412
S.C. 611, 617, 773 S.E.2d 580, 583 (2015).

In Spoone, our supreme court held a defendant's waiver of the right to appellate
and post-conviction review in a plea agreement is enforceable so long as the
waiver was knowing and voluntary. 379 S.C. at 142-43, 665 S.E.2d at 607. In
determining whether the waiver was knowing and voluntary, the supreme court
analyzed "(1) the background, experience and conduct of the accused, (2) the text
of the plea agreement, and (3) the transcript of the plea hearing." Id. at 143, 665
S.E.2d at 608. The court found the PCR waiver was valid and enforceable:

Although petitioner only has a ninth[-]grade education,
the text of the written plea agreement was
straightforward. Furthermore, the plea colloquy shows
that the trial court specifically asked petitioner about the
waiver both in the language of the plea agreement, as
well as in plain language. Petitioner was represented by
two attorneys at the trial level. Both lawyers attended the
plea hearing and both signed the written plea agreement,
along with petitioner himself.

Id. at 143-44, 665 S.E.2d at 608.

Here, we agree with the PCR court's finding that Petitioner's waiver of PCR was
effective and within the scope of his plea agreement. The letters from plea counsel
memorialized his desire to plead guilty and waive appeal and collateral relief. His
plea affidavit form further laid out the terms. The plea hearing clarified the extent
of the waivers. We find the plea judge properly considered the letters, which plea
counsel admitted essentially constituted a written plea agreement; the testimony at
the plea hearing in which Petitioner repeatedly confirmed he understood the terms
and scope of his plea; and the plea affidavit submitted by Petitioner in which he
reiterated his desire to plead guilty and affirmed his confession in writing. See
Pittman v. State, 337 S.C. 597, 599, 524 S.E.2d 623, 624-25 (1999) (finding when
determining issues relating to guilty pleas, the court will consider the entire record,
including the transcript of the guilty plea, and the evidence presented at the PCR
hearing); see also State v. Thomason, 355 S.C. 278, 286-87, 584 S.E.2d 143, 147-
48 (2003) (holding the court will limit its review to those terms fully set forth in
the record, and neither the State nor the defendant can enforce terms not appearing
on the record before the judge who accepts a plea.). Based upon that review, we
find Petitioner waived his rights to an appeal and collateral review, including
PCR.1

We also find the PCR court's finding that Petitioner knowingly and voluntarily
waived his right to PCR was proper and is supported by the record. See Moore v.
State, 399 S.C. 641, 732 S.E.2d 871, 873 (2012) (finding "[a] defendant's knowing
and voluntary waiver of statutory or constitutional rights must be established by a
complete record, and may be accomplished by a colloquy between the court and
defendant, between the court and defendant's counsel, or both"). Here, the
transcript shows the plea court meticulously discussed Petitioner's decision to
plead guilty, ensured his understanding of the plea, and reiterated the implications
and limitations of his waiver of appeal and collateral relief. The plea negotiations

1
To the extent plea counsel added the "to issues unknown" caveat at the hearing,
we find the claims now raised were known, and Petitioner knew he was waiving all
rights to PCR unless new evidence or information arose after the plea.
were initiated, through both letters, by Petitioner's counsel, and his desire to plead
guilty was memorialized in those letters, at the plea hearing, and at the motion to
dismiss hearing. Like the court in Spoone, we believe the PCR waiver was valid
and enforceable and it was entered into knowingly and voluntarily. We further
find plea counsel's advice was effective and not deficient. Petitioner avoided the
death penalty in a double murder case that had witness testimony and video
evidence as well as Petitioner's own confession. See Strickland v. Washington, 466
U.S. 668, 686 (1984) (finding where a petitioner's application alleges ineffective
assistance of counsel as a ground for relief, the petitioner must prove that
"counsel's conduct so undermined the proper functioning of the adversarial process
that [it] cannot be relied upon as having produced a just result.") The PCR court's
order found "Plea counsel may have effectively saved [Petitioner's] life by getting
the State to take the death penalty off the table in exchange for the guilty plea." It
continued, "Rejecting the offer because of hesitancy to waive PCR or claims of
ineffective assistance of counsel would have been patently irrational under the
circumstances." Had counsel advised Petitioner not to take the offer and Petitioner
had in fact proceeded to trial, we do not find the result would have been different
in light of the overwhelming evidence, including a confession, against Petitioner.

We find Petitioner knowingly and voluntarily waived his right to PCR by entering
the plea agreement to avoid the death penalty, and this waiver was within the scope
of the plea agreement. The letters, the plea affidavit, and the testimony at the plea
and motion to dismiss hearings make clear here that Petitioner received an
extremely favorable negotiated plea in this case. Further, we do not find plea
counsel's advice to waive direct appeal and collateral relief was deficient.

Based on the foregoing, the findings of the PCR court are

AFFIRMED. 2

THOMAS, HEWITT, CURTIS, JJ., concur.

2
We decide this case without oral argument pursuant to Rule 215, SCACR.