Jason Black 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

Jason Black, Respondent-Petitioner,

v.

State of South Carolina, Petitioner-Respondent.

Appellate Case No. 2021-000525

Appeal From Pickens County
R. Scott Sprouse, Circuit Court Judge

Unpublished Opinion No. 2025-UP-270
Heard May 27, 2025 – Filed July 30, 2025

REVERSED

Appellate Defender David Alexander, of Columbia, for
Respondent-Petitioner.

Attorney General Alan McCrory Wilson, Deputy
Attorney General Donald J. Zelenka, Senior Assistant
Deputy Attorney General Melody Jane Brown, and
Assistant Attorney General Kaylee Christine Kemp, all
of Columbia, for Petitioner-Respondent.

PER CURIAM: The State appeals the post-conviction relief (PCR) court's order
granting relief to Jason Black on the ground of ineffective assistance of appellate
counsel for failing to raise an issue regarding the admission of a defense witness's
prior conviction. On cross-appeal, Black argues that, in the alternative, the PCR
court erred in finding trial counsel was not ineffective for failing to adequately
preserve the issue. We reverse.

Black was charged with criminal sexual conduct (CSC) with a minor and
committing a lewd act upon a minor as a result of an incident that occurred
between him and a then-fifteen-year-old girl (Victim) at the home of Richard Bush
on May 6, 2006.

At trial, Victim testified she began a relationship with Black in the fall of 2005
which continued until the incident; she asserted that Black was twenty-six and she
was fifteen—and that Black was aware of her age. Victim testified that on the day
of the incident, she left work with her friend Candie around 9:30 p.m., and they
eventually made their way to Bush's house, where Black was hanging out, so she
could spend time with Black. She stated Candie and Candie's boyfriend, who had
ridden to Bush's house with them, only stayed approximately ten minutes before
leaving to go to McDonald's. Victim and Black then went into Bush's bedroom
where they had sex. Candie returned to pick up Victim approximately thirty
minutes later, and Victim went to Candie's house to stay the night. Victim testified
that when she got to Candie's house, she noticed blood in her underwear; she told
Candie what happened and showed Candie her underwear. Candie also testified
and corroborated Victim's version of events. She stated that when she and Victim
got back to her house that night, Victim showed her the undergarments with blood
in them, and she helped Victim launder them. Candie stated Victim explained
what had caused the blood, and she confirmed Victim relayed that the incident
took place in Bush's bedroom.

Black and Bush both testified and agreed that Victim and Candie had come to
Bush's home that night, but they denied that Black and Victim ever went into the
bedroom.1 Black acknowledged that he had spoken to Tony Robinson, an officer
with the Pickens County Sheriff's Office, in early 2006, and Robinson informed
him that Victim was fifteen and warned him that his relationship with Victim could
"get [him] in trouble." Black, however, repeatedly refused to characterize his
involvement with Victim as a "relationship," instead referring to it as

1
Interestingly, on cross-examination, Bush acknowledged he knew Black had been
arrested and the nature of the charges, but asserted "[t]here was nothing [he] could
do" to help Black. He never contacted law enforcement to give a statement on
Black's behalf prior to trial.
"companionship" and calling Victim a "great friend." Black confirmed he had
previously been convicted of CSC with a minor.

During Bush's testimony, the trial court held a bench conference regarding the
admissibility of three of Bush's prior convictions; he had been sentenced in Florida
in 1987 to twenty-two years in prison for two counts of manslaughter and one
count of shooting or throwing a deadly missile. Bush served approximately six
years of his sentence and was released on March 1, 1993. The trial court admitted
Bush's convictions for impeachment purposes. Bush was Black's only other
defense witness.

The jury convicted Black of CSC with a minor and committing a lewd act upon a
minor, and the trial court sentenced him to an aggregate sentence of twenty years.
This court and the South Carolina supreme court affirmed the convictions. See
State v. Black, Op. No. 2010‑UP‑370 (S.C. Ct. App. filed July 19, 2010); State v.
Black, 400 S.C. 10, 30‑31, 732 S.E.2d 880, 891 (2012).

In its opinion, the supreme court found error in the trial court's decision to admit
Bush's two manslaughter convictions, but it determined the error was harmless, in
part due to Black's failure to raise the admission of the third conviction for
throwing a deadly missile. Black, 400 S.C. at 30‑31, 732 S.E.2d at 891. In
conducting its harmless error analysis, the supreme court stated it reviewed the
entire record and "consider[ed] the overall strength of the State's case," including
that Black's "own credibility was seriously impeached at trial as well by testimony
that he had a criminal record that included two prior offenses for CSC with a
minor." Id. at 29, 732 S.E.2d at 891 (emphasis omitted). The opinion further
detailed the additional evidence against Black, including the fact that he met with
law enforcement prior to May 2006 and was warned that Victim was only fifteen
years old; Victim was able to describe some of the contents of Bush's bedroom
despite Black's and Bush's testimony that she never left the living room; and
Candie corroborated Victim's version of events. Id. at 29‑30; 732 S.E.2d at 891.
The supreme court ultimately concluded that "the admission of the additional
impeachment evidence"—i.e. Bush's manslaughter convictions—"could not
reasonably have affected the jury's result." Id. at 30, 732 S.E.2d at 891.

Black then filed an application for post-conviction relief, alleging, among other
things, that his appellate counsel was ineffective for failing to raise the admission
of the conviction for throwing a deadly missile on appeal. The PCR court granted
relief on this ground and denied the State's motion to alter or amend. The State
filed a petition for writ of certiorari, and Black filed a cross-petition, both of which
were granted by this court on October 13, 2023.

ISSUES ON APPEAL

State's Appeal

Did the PCR court err in granting post-conviction relief on the basis of ineffective
assistance of appellate counsel for appellate counsel's failure to raise the admission
of a defense witness's conviction for shooting or throwing a deadly missile when that
conviction arose at the same time as two voluntary manslaughter convictions whose
admission our supreme court found to be harmless error?

Black's Cross-Appeal

Did the PCR court err in finding that trial counsel was not ineffective and
preserved for appellate review whether the defense witness could be impeached
with a remote conviction for throwing a deadly missile?

STANDARD OF REVIEW

In PCR matters, the standard of review "depends on the specific issue before us."
Smalls v. State, 422 S.C. 174, 180, 810 S.E.2d 836, 839 (2018). "We defer to a
PCR court's findings of fact and will uphold them if there is evidence in the record
to support them." Id. However, "[w]e review questions of law de novo, with no
deference to [PCR] courts." Id. at 180-81, 810 S.E.2d at 839.

LAW/ANALYSIS

The State argues the PCR court erroneously found Black was prejudiced by
appellate counsel's failure to argue Bush's conviction for throwing a deadly missile
was improper impeachment evidence because the supreme court determined on
direct appeal that the admission of Bush's other convictions, for manslaughter, was
harmless beyond a reasonable doubt. We agree.

"In [PCR] 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). To establish a claim of ineffective assistance of counsel, a PCR
applicant must show that counsel was deficient and that counsel's deficiency
prejudiced the defendant's case. Strickland v. Washington, 466 U.S. 668, 687
(1984). To demonstrate deficiency, "the [applicant] must show that counsel's
representation fell below an objective standard of reasonableness." Id. at 688.
Additionally, an applicant "must prove that he or she was prejudiced by such
deficiency to the extent of there being a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
different." Southerland v. State, 337 S.C. 610, 616, 524 S.E.2d 833, 836 (1999)
(emphasis omitted). However, "a court need not determine whether counsel's
performance was deficient before examining the prejudice suffered by the
[applicant] as a result of the alleged deficiencies." Strickland, 466 U.S. at 697. "If
it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice . . . that course should be followed." Id.

"Generally, in analyzing a claim of ineffective assistance of appellate counsel, this
[c]ourt applies the Strickland test just as it would when analyzing a claim of
ineffective assistance of trial counsel." Bennett v. State, 383 S.C. 303, 309, 680
S.E.2d 273, 276 (2009). "Thus, in this case, we ask 1) whether appellate counsel's
performance was deficient, and 2) whether [the applicant] was prejudiced by
appellate counsel's deficient performance." Id. "To prove prejudice, the applicant
must show that, but for counsel's errors, there is a reasonable probability he would
have prevailed on appeal." Anderson v. State, 354 S.C. 431, 434, 581 S.E.2d 834,
835 (2003).

This case turns on the prejudice analysis required by Strickland's second prong
because that analysis is the same regardless of whether it was trial counsel or
appellate counsel who was deficient. See Hillerby v. State, 431 S.C. 323, 333, 847
S.E.2d 500, 505 (Ct. App. 2020) ("We do not have to examine both deficiency and
prejudice in every case."); Strickland, 466 U.S. at 697 ("If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that
course should be followed."). Initially, we note our concern with the prejudice
analysis—or rather, the lack thereof—in the PCR court's order. Smalls directs
PCR courts, in analyzing prejudice, to "consider the specific impact counsel's error
had on the outcome" of the proceeding as well as "the strength of the State's case in
light of all the evidence presented to the jury." Smalls, 422 S.C. at 188, 810 S.E.2d
at 843; see also id. ("In general, the stronger the evidence presented by the State,
the less likely the PCR court will find the applicant met his burden of proving
prejudice."). Here, the order states only that the PCR court considered "the record
in this matter, particularly the opinion of the [South Carolina] Supreme Court," and
found appellate counsel's performance was deficient and Black was prejudiced by
the deficiency, without elaboration. This finding conflicts with the supreme court's
opinion in the direct appeal; the supreme court ultimately found that although
Bush's credibility was "diminished by the admission of the unchallenged
conviction for shooting/throwing a deadly missile, . . . the error could not have
reasonably impacted the result in this case[,]" because Black's "own credibility was
seriously impeached at trial as well by testimony that he had a criminal record that
included two prior offenses for CSC with a minor[,]" "an investigator with the
Pickens County Sheriff's Department testified that he had contacted [Black] before
the incident alleged here and specifically warned him that [Victim] was only 15
years old[,]" and "[Black] acknowledged this conversation and conceded that he
knew having a relationship with a 15-year-old could get him in 'trouble.'" Black,
400 S.C. at 29‑31, 732 S.E.2d at 891.

Accordingly, we find Black failed to establish prejudice that would entitle him to a
new trial because it is unlikely he would have prevailed on appeal even if the issue
had been raised. See Carrier v. State, 441 S.C. 547, 558, 895 S.E.2d 679, 685 (Ct.
App. 2023) ("Prejudice in ineffective-assistance-of-counsel claims is typically
analyzed using a harmless error framework."), cert. denied (Nov. 14, 2024);
Anderson, 354 S.C. at 434, 581 S.E.2d at 835 ("To prove prejudice, the applicant
must show that, but for counsel's errors, there is a reasonable probability he would
have prevailed on appeal."). Any error in the admission of evidence impeaching
Bush's credibility does not change the fact that Black's own credibility was
seriously damaged by his own criminal record, which included at least one prior
conviction for CSC with a minor.2 Further, we find Black's testimony at trial was
evasive and not credible in other ways; specifically, although Black agreed he and
Victim were "seeing each other" and he was "going out with [Victim]," he
repeatedly refused to characterize his involvement with Victim as a "relationship."
Instead, he referred to her—a fifteen-year-old child—as a "great friend" and
"companion." Finally, we note that Victim's version of events was corroborated by
other witnesses and evidence, particularly Victim's friend, Candie, in whom Victim
confided immediately after the incident and who saw Victim's bloodied underwear.
See Thompson v. State, 423 S.C. 235, 247, 814 S.E.2d 487, 493 (2018) (noting
"[t]he PCR court reviewing the trial transcript is in no better position than we are to
determine the credibility of trial witnesses or otherwise assess the strength of the
State's case"). Therefore, we find the admission of the missile-throwing conviction
"could not reasonably have affected the jury's result in this case[,]" and we hold the
PCR court erroneously found Black established prejudice from counsel's alleged

2
We note the supreme court's opinion refers to two previous CSC convictions.
Although there are some references to "charges," in the plural, at trial, the State
only questioned Black about one incident, which Black acknowledged. It is
unclear to us whether there was one conviction or two which arose out of that
incident.
deficiencies such that he was entitled to a new trial. Black, 400 at 29‑31, 732
S.E.2d at 891; see also Anderson, 354 S.C. at 434, 581 S.E.2d at 835 ("To prove
prejudice, the applicant must show that, but for counsel's errors, there is a
reasonable probability he would have prevailed on appeal.").

As stated above, the prejudice analysis would be the same regardless of which
attorney committed the deficiency, if any, in the preservation or presentation of
this issue for appeal; therefore, we do not need to reach Black's cross-appeal as our
finding that Black was not prejudiced is dispositive. See Futch v. McAllister
Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999)
(ruling an appellate court need not address remaining issues when its resolution of
a prior issue is dispositive).

CONCLUSION

Accordingly, the decision of the PCR court granting relief is REVERSED.

WILLIAMS, C.J., and GEATHERS and TURNER, JJ., concur.