Dean 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

Charles Ray Dean, Petitioner,

v.

State of South Carolina, Respondent.

Appellate Case No. 2012-212092

Appeal From Horry County
George C. James Jr., Circuit Court Judge

Unpublished Opinion No. 2015-UP-176
Heard February 3, 2015 – Filed April 1, 2015

REVERSED

Appellate Defender David Alexander, of Columbia, for
Petitioner.

Attorney General Alan McCrory Wilson and Assistant
Attorney General Christina Catoe Bigelow, both of
Columbia, for Respondent.

PER CURIAM: In this post-conviction relief (PCR) matter, Petitioner Charles
Ray Dean argues the PCR court erred in finding his Sixth Amendment right to
effective assistance of counsel was not violated. Specifically, Dean argues plea
counsel gave Dean erroneous sentencing advice and Dean would have proceeded
to trial but for plea counsel's error. We reverse.

FACTS/PROCEDURAL HISTORY

When Dean appeared before the plea court, he was informed that, for the charge of
murder, he was facing a minimum sentence of thirty years' imprisonment and a
maximum sentence of life without parole. Dean maintained he still wished to
plead guilty and the court accepted his plea as voluntary, knowing, and intelligent.
Plea counsel then requested the plea court sentence Dean to the minimum sentence
of thirty years' imprisonment, at which point the plea court interrupted counsel to
say, "That's day[-]for[-]day." According to plea counsel and Dean, they did not
hear this statement at the time. At the end of the colloquy, the plea court sentenced
Dean to thirty years' imprisonment and once again stated, "You have to serve it
day[-]for[-]day." Both Dean and plea counsel were surprised when they heard the
second "day-for-day" clarification.

Dean did not file a direct appeal but later filed an application for PCR, alleging
ineffective assistance of plea counsel, which the PCR court denied. A petition for
writ of certiorari followed, which was granted by this court.

STANDARD OF REVIEW

"On appeal in a PCR action, this [c]ourt applies an 'any evidence' standard of
review." Taylor v. State, 404 S.C. 350, 359, 745 S.E.2d 97, 101 (2013). Under this
standard, the PCR court's ruling will be upheld if it is supported in the appendix by
any evidence of probative value and not controlled by an error of law. Shumpert v.
State, 378 S.C. 62, 66, 661 S.E.2d 369, 371 (2008); Speaks v. State, 377 S.C. 396,
399, 660 S.E.2d 512, 514 (2008). However, reversal is warranted where no
evidence of probative value supports the PCR court's decision. See Palacio v.
State, 333 S.C. 506, 513, 511 S.E.2d 62, 66 (1999).

ISSUE ON APPEAL

Did the PCR court err in finding Dean's right to effective assistance of counsel was
not violated?

LAW/ANALYSIS
Dean maintains that plea counsel erroneously informed him before his plea that he
would be required to serve only 85% of his sentence. Indeed, plea counsel
acknowledged he was under the impression—after speaking with a trusted
lawyer—that Dean would have to serve only 85% of his sentence under "the new
law."1 Dean further contends that neither the plea court nor plea counsel informed
him that he was going to have to serve the thirty-year sentence day-for-day until
after the guilty plea was entered. Immediately after sentencing, Dean wanted to
"go back in front of the judge" and "pull [his] plea," but plea counsel refused to do
so because he did not believe the court was going to let Dean withdraw the plea.
In sum, Dean argues that if plea counsel or the court had informed Dean that he
was required to serve his sentence day-for-day before he entered his plea, he would
have gone to trial instead of pleading guilty. We agree and find Dean has met his
burden to prove ineffective assistance of counsel.

"In order to establish a claim for ineffective assistance of counsel, the [petitioner]
must show that: (1) counsel failed to render reasonably effective assistance under
prevailing professional norms, and (2) counsel's deficient performance prejudiced
the [petitioner's] case." Speaks, 377 S.C. at 399, 660 S.E.2d at 514 (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)). The Strickland test requires a
petitioner to make a showing on both prongs in order to prove ineffective
assistance of counsel. Strickland, 466 U.S. at 687.

1. Deficiency

Here, the PCR court held that plea counsel's performance was not deficient. We
disagree and find Dean's and plea counsel's testimonies reveal Dean received
erroneous sentencing advice.

"In the context of a guilty plea, the deficiency prong inquiry turns on whether the
plea was voluntarily, knowingly, and intelligently entered." Taylor, 404 S.C. at

1
Plea counsel did not clarify the law to which he was referring, but it appears he
was referring to the Omnibus Crime Reduction and Sentencing Reform Act of
2010, which was passed shortly before Dean's plea. Act No. 273; 2010 S.C. Acts
1986. As codified under section 24-13-125(A) of the South Carolina Code (Supp.
2014), inmates may be required to serve only 80%—not 85%—of their sentence
for certain offenses before they are eligible for work release. However, the 80%
provision does not apply to one convicted of murder. Id.
360, 745 S.E.2d at 102. With regard to a PCR action, "[s]imply put, the first
inquiry is whether trial counsel's advice was deficient." Alexander v. State, 303
S.C. 539, 542, 402 S.E.2d 484, 485 (1991). If a petitioner successfully proves his
or her guilty plea was based on inaccurate sentencing advice from counsel, the
deficiency prong has been satisfied. Id. at 542–43, 402 S.E.2d at 485 (finding
counsel's sentencing advice was "obviously defective" because it was contrary to
the sentencing ranges possible under the indictments and the law). However, "the
transcript of the guilty plea hearing will be considered to determine whether
information conveyed by the plea [court] cured any possible error made by
counsel." Burnett v. State, 352 S.C. 589, 592, 576 S.E.2d 144, 145 (2003); id. at
593–94, 576 S.E.2d at 146 (finding any possible misunderstanding as to the
petitioner's sentence was cured by the colloquy during the actual plea hearing).

In this case, plea counsel testified that prior to the plea, he discussed Dean's case
with another trusted lawyer, who told him that Dean would be required to serve
only 85% of whatever his sentence would be under "the new law." Plea counsel
was then asked, "[D]id you specifically tell Mr. Dean that it would be eighty[-]five
percent?" Plea counsel responded, "I don't remember the exact words[,] but that
was discussed." (emphasis added). In the PCR hearing, plea counsel
acknowledged Dean's surprise when he learned that he would have to serve his
time day-for-day and not just 85% of the sentence. Counsel testified that after the
plea, when they "got to the lock up[,] Mr. Dean was highly upset with me because
the judge had said [day-for-day] at the end of the plea." (emphasis added). Dean
also testified at the PCR hearing. Dean maintained that at the time of the plea, he
was under the impression that he was going to have to serve only 85% of his
sentence.

We find plea counsel's testimony that "[85%] was discussed," along with Dean's
understanding that he would have to serve only 85% of his sentence, reveals that
plea counsel's performance was deficient because he offered erroneous sentencing
advice to Dean. See Alexander, 303 S.C. at 542–43, 402 S.E.2d at 485 (finding
counsel's sentencing advice was "obviously defective" because it was contrary to
the sentencing ranges possible under the indictments and the law). Moreover,
Dean and plea counsel expressed surprise upon hearing the plea court explain to
Dean that he would have to serve his sentence "day-for-day." At no time should
plea counsel have discussed 85% with Dean because, even under "the new law,"
Dean would not be eligible for an early release after pleading guilty to murder. See
S.C. Code Ann. § 24-13-125(A) (Supp. 2014) (finding one convicted of murder is
not eligible for work release).
Notwithstanding plea counsel's deficient advice, this court still has to review the
transcript of the guilty plea hearing to determine whether information conveyed by
the plea court cured any possible error made by counsel. See Burnett, 352 S.C. at
592, 576 S.E.2d at 145. "[E]ven where counsel offers misinformation, this
deficiency can be cured where the trial court properly informs the defendant about
the sentencing range." Bennett v. State, 371 S.C. 198, 205 n.6, 638 S.E.2d 673,
676 n.6 (2006).

In this case, the plea court informed Dean that he was facing a sentence of thirty
years' to life imprisonment with no recommendation from the solicitor, and Dean
stated he still wished to plead guilty. Furthermore, the plea court informed Dean
he would not be eligible for parole and twice stated his sentence would be "day-
for-day." However, these day-for-day clarifications were not given until after
Dean's plea was accepted.

We acknowledge that no South Carolina law directly addresses whether
information conveyed during a plea hearing—but after the plea has been
accepted—can cure plea counsel's deficient advice. Under the circumstances of
this case, however, we find a clarification from the plea court would need to be
given before the plea was accepted to have any curative effect. See Holden v.
State, 393 S.C. 565, 574–75, 713 S.E.2d 611, 616 (2011) (finding the thorough
plea colloquy given before the court accepted the plea cured any alleged deficiency
in plea counsel's sentencing misadvice); Bennett, 371 S.C. at 205 n.6, 638 S.E.2d at
676 n.6 (same); Moorehead v. State, 329 S.C. 329, 333, 496 S.E.2d 415, 416–17
(1998) (finding the trial court cured any misconception about sentencing because it
accurately informed the defendant of the plea agreement on the record before
accepting the plea); see also Burnett, 352 S.C. at 593, 576 S.E.2d at 146 (finding
the plea court "accepted Burnett's guilty pleas only after a very thorough
questioning of Burnett's understanding of what rights he was waiving by pleading
guilty, what his possible sentences were, and that the [court] had not agreed to give
him any particular sentence" (emphasis added)); see generally Roddy v. State, 339
S.C. 29, 33, 528 S.E.2d 418, 421 (2000) ("To find a guilty plea is voluntarily and
knowingly entered into, the record must establish the defendant had a full
understanding of the consequences of his plea and the charges against him.").

Because we find the timing of the after-the-plea "day-for-day" instruction did not
cure plea counsel's misadvice as to sentencing, we reverse the PCR court's finding
that counsel's performance was not deficient. See Palacio, 333 S.C. at 513, 511
S.E.2d at 66 (finding reversal is warranted when no evidence of probative value
supports the PCR court's decision). Accordingly, we proceed to the second prong
of the Strickland test to determine whether Dean was prejudiced by plea counsel's
alleged deficiency.

2. Prejudice

Under the second step of the inquiry, the prejudice prong "focuses on whether
counsel's constitutionally ineffective performance affected the outcome of the plea
process." Hill v. Lockhart, 474 U.S. 52, 59 (1985). "In other words, in order to
satisfy the 'prejudice' requirement, the [petitioner] 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." Id.

To meet this burden, the petitioner need only testify that had plea counsel not
misinformed him of the potential sentence, he would not have pled guilty.
Alexander, 303 S.C. at 543, 402 S.E.2d at 485–86 (finding the petitioner's own
testimony that he would have proceeded to trial but for counsel's misadvice as to
sentencing was "the only evidence in the record on this point" and was sufficient to
satisfy the prejudice prong of the Strickland test); Jackson v. State, 342 S.C. 95,
97–98, 535 S.E.2d 926, 927 (2000) (citing Alexander with approval and finding the
petitioner satisfied the prejudice prong by simply providing testimony that he
would not have pled guilty, but for trial counsel's misadvice); Smith v. State, 369
S.C. 135, 138, 631 S.E.2d 260, 261 (2006) ("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." (citing Jackson, 342
S.C. at 97–98, 535 S.E.2d at 927; Alexander, 303 S.C. at 543, 402 S.E.2d at 485–
86)). But see Stalk v. State, 383 S.C. 559, 563, 681 S.E.2d 592, 595 (2009) ("[The]
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."); id. at 562–63, 681 S.E.2d at 594–95 (finding the petitioner's
prejudice claim was insufficient because it only alleged that his counsel was so
unprepared that he felt coerced to plead guilty, but did not allege that any of
counsel's advice affected whether he would have declined or accepted the plea
offer).

Here, Dean maintained that, based on plea counsel's misadvice, he did not know he
would have to serve his sentence day-for-day, and he testified that had he known
that fact, he would not have pled. Dean stated he heard "day-for-day" from the
plea court after his plea, but plea counsel did not inform him of this fact prior to
that point. As mentioned previously, plea counsel also confirmed Dean's surprise
upon hearing he had to serve his sentence day-for-day. Plea counsel stated that
during the plea hearing, he did not hear the plea court's first comment that Dean's
sentence would be served day-for-day. Plea counsel stressed, "If the [plea court]
would have said that at the beginning of the plea[,] there is no doubt in my mind
that the plea would have never taken place." (emphasis added).

The PCR court found Dean failed to prove plea counsel gave incorrect advice upon
which Dean relied. It also found that even assuming plea counsel misadvised
Dean, such advice did not render Dean's plea involuntary because he pled "straight
up" with no recommendation or negotiation, and he knew he was facing a potential
life sentence. The PCR court reasoned, "It would strain credulity to suggest that if
[Dean] had been told that the thirty-year minimum sentence was to be served day[-
]for[-]day, that he would not have pled guilty." We note, however, that the PCR
court did not make a credibility finding, but only acknowledged it did not agree
with Dean's argument that he would have proceeded to trial but for counsel's
misadvice.

Notwithstanding the fact that Dean was facing a potential life sentence, the
potential penalty does not negate Dean's right to effective assistance of counsel and
his right to proceed to trial. Furthermore, if Dean had proceeded to trial and sought
a charge of voluntary manslaughter, as he contends he would have, Dean could
have faced a shorter sentencing range of only two to thirty years' imprisonment.
See S.C. Code. Ann. § 16-3-50 (2003). Then, with a non-murder conviction under
"the new law"—section 24-13-125(A)—Dean could be eligible for work release
after serving 80% of his sentence.

In light of Dean's and plea counsel's testimonies that Dean would have proceeded
to trial if Dean had been aware that he would have to serve his sentence day-for-
day, we find the appendix contains no evidence to support the PCR court's ruling
that Dean was not prejudiced by counsel's erroneous advice. Cf. Speaks, 377 S.C.
at 399, 660 S.E.2d at 514 (stating this court will uphold the PCR court's ruling if
any evidence of probative value supports it). Dean's testimony and plea counsel's
corroboration of that testimony establishes Dean would have proceeded to trial and
could have sought a charge for voluntary manslaughter, but for counsel's
misinformation. Therefore, we find Dean has satisfied his burden to prove the
prejudice prong of the Strickland test.
CONCLUSION

Based on the foregoing reasoning, the decision of the PCR court is

REVERSED.

THOMAS, KONDUROS, and GEATHERS, JJ., concur.