Mitchel L. Hinson 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

Mitchell Logan Hinson, Petitioner,

v.

State of South Carolina, Respondent.

Appellate Case No. 2018-001643

ON WRIT OF CERTIORARI

Appeal From Kershaw County
Gordon G. Cooper, Post-Conviction Relief Judge
L. Casey Manning, Trial Judge

Unpublished Opinion No. 2023-UP-295
Heard April 13, 2023 – Filed August 16, 2023

AFFIRMED

Appellate Defender Kathrine Haggard Hudgins, of
Columbia, for Petitioner.

Attorney General Alan McCrory Wilson and Assistant
Attorney General Danielle Dixon, all of Columbia, for
Respondent.
PER CURIAM: In this appeal from the denial of Mitchell Logan Hinson's
application for post-conviction relief (PCR), this court granted certiorari and
ordered briefing on the issues of whether trial counsel was ineffective for failing to
object to a premature Allen 1 charge issue and whether Hinson knowingly and
intelligently waived his right to a direct appeal. On direct appeal, Hinson argues
the trial court erred by refusing to conduct a hearing on his motion for a new trial
based on an allegation that the jury foreman failed to disclose his relationship with
both the victim and Hinson. We affirm the PCR court's order denying Hinson
relief on the Allen charge, reverse the PCR court's denial of belated review of his
direct appeal, and affirm the trial court's denial of his new trial motion.

1. We hold the PCR court did not err in finding trial counsel was not ineffective
for failing to object to the trial court giving an Allen charge before the jury
indicated it was deadlocked. Hinson failed to meet his burden of proving trial
counsel's failure to object to the charge was unreasonable under the prevailing
professional norms at the time of trial. See Sellner v. State, 416 S.C. 606, 610, 787
S.E.2d 525, 527 (2016) (holding a reviewing court "will uphold [the factual
findings of the PCR court] if there is any evidence of probative value to support
them"); Speaks v. State, 377 S.C. 396, 399, 660 S.E.2d 512, 514 (2008) ("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."); Strickland v. Washington, 466 U.S. 668, 700 (1984) ("Failure to
make the required showing of either deficient performance or sufficient prejudice
defeats the ineffectiveness claim."); 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, 466 U.S. at 690)); Chappell v. State,
429 S.C. 68, 74-75, 837 S.E.2d 496, 499 (Ct. App. 2019) ("To prove trial counsel's
performance was deficient, a[ ] [PCR] applicant must show [trial] counsel's
representation fell below an objective standard of reasonableness." (quoting Smalls
v. State, 422 S.C. 174, 181, 810 S.E.2d 836, 840 (2018))); id. at 75, 837 S.E.2d at
499 ("[T]his court will find trial counsel's failure to object was deficient
performance only if it was unreasonable under the prevailing professional norms at

1
Allen v. United States, 164 U.S. 492 (1896).
the time of trial."); Speaks, 377 S.C. at 399, 660 S.E.2d at 514 ("In [PCR]
proceedings, the burden of proof is on the applicant to prove the allegations in his
application."); Thornes v. State, 310 S.C. 306, 309-10, 426 S.E.2d 764, 765 (1993)
(stating the appellate courts have "never required an attorney to anticipate or
discover changes in the law"); State v. Taylor, 427 S.C. 208, 214, 829 S.E.2d 723,
727 (Ct. App. 2019) ("South Carolina approves the use of a modified Allen charge,
which must be neutral and even-handed, instruct both the majority and minority to
reconsider their views, and cannot be directed at the jurors in the minority.");
Tucker v. Catoe, 346 S.C. 483, 491, 552 S.E.2d 712, 716 (2001) ("Whether an
Allen charge is unconstitutionally coercive must be judged 'in its context and under
all the circumstances.'" (quoting Lowenfield v. Phelps, 484 U.S. 231, 237 (1988)));
State v. Darr, 262 S.C. 585, 586-87, 206 S.E.2d 870, 870 (1974) (affirming a trial
court's recall of a jury that had not yet reached a verdict to instruct it on the
importance of reaching a verdict); id. at 587, 206 S.E.2d at 870 ("It is the duty of
the trial judge to urge the jury to agree upon a verdict provided he does not coerce
them.").

2. We hold the PCR court erred in finding Hinson knowingly and willingly waived
his right to a direct appeal. 2 See Turner v. State, 380 S.C. 223, 224, 670 S.E.2d
373, 374 (2008) ("In the absence of an intelligent waiver by the defendant, counsel
must either initiate an appeal or comply with the procedure in Anders v. California,
386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).").

3. We affirm Hinson's direct appeal issue and hold that the trial court did not err in
denying his motion for a new trial without a hearing based on juror misconduct.
We hold Hinson is procedurally barred from raising this issue because he failed to
raise it at his first opportunity to do so. See State v. Aldret, 333 S.C. 307, 312, 509
S.E.2d 811, 813 (1999) (holding our courts "have routinely held that a party must
object at the first opportunity to preserve an issue for review"); id. ("A
contemporaneous objection is required to preserve an issue for appellate review.");
id. (finding a defendant was "procedurally barred from raising the issue" of alleged
juror misconduct due to his failure to notify the trial court of his concern "at his
first opportunity to do so").

AFFIRMED.

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

2
The State conceded that the PCR court erred in denying Hinson belated direct
appeal review.