Derrick Miller v. State

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Derrick Miller, Petitioner,

v.

State of South Carolina, Respondent.

Appellate Case No. 2023-000470

Appeal From Spartanburg County
Brian M. Gibbons, Circuit Court Judge

Opinion No. 6136
Submitted November 3, 2025 – Filed February 11, 2026

REVERSED

Appellate Defender Jessica M. Saxon, of Columbia, for
Petitioner.

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

WILLIAMS, C.J.: In this action for post-conviction relief (PCR), Derrick Miller
pled guilty via Webex to domestic violence of a high and aggravated nature for
shooting his girlfriend. The PCR court denied Miller's PCR application, and this
court granted his petition for writ of certiorari to review the PCR court's finding
that plea counsel was not ineffective for failing to establish a direct line of
communication during the plea. We reverse.

FACTS/PROCEDURAL HISTORY
At the beginning of the guilty plea, on January 6, 2021, the trial court noted the
proceeding was being held via Webex because of the coronavirus pandemic. The
trial court told Miller to alert him immediately if he could not hear the trial court or
other participants. The trial court asked Miller about his family, education, and
employment. The trial court asked if Miller was under the influence of drugs or
had a drug abuse problem. Miller affirmed he was satisfied with the work his
attorney performed for the case. He affirmed he understood his right to a jury trial,
that he did not wish to have a jury trial, and that his plea was free and voluntary.
The trial court told Miller that in pleading guilty, Miller would

give up your right to confront and cross-examine the
State's witnesses. You also give up your right to present
evidence which you or your lawyer might feel establishes
a defense, meaning you have to give up your right of
subpoena as well as your right to remain silent. And you
wish to give up all those rights?

Miller stated "yes." Miller agreed with the State's recitation of the facts and
affirmed the trial court was not bound by any sentencing recommendation from the
State. The trial court stated "I could sentence you up to [twenty] years at the
Department of Corrections? Do you understand that?" Miller agreed and stated he
understood the charge he was pleading to was classified as a violent and serious
offense. Miller affirmed his guilt to the trial court.1

Plea counsel spoke to the trial court on Miller's behalf, and the trial court asked
Miller if he agreed with the statements made by his lawyer. Miller agreed, and
when asked by the trial court if there was "anything else that you would like to say
or want me to know or consider," Miller stated "[n]o your honor. Not at this time."
The trial court replied "well, I appreciate that sentiment, but, Mr. Miller, this is - -
there's not another time where you have the opportunity to speak to me about the
sentence, and so is there anything that you can think of that you want to share with
me?" Miller then spoke of his remorse for his actions.

The State advised the trial court that it was unable to reach a negotiated plea but
recommended a sentence of twenty years' imprisonment suspended on the service

1
Miller shot his girlfriend as she was holding a lighter and threatening to burn his
belongings. He stated at the time of the incident that "getting shot in the leg might
hurt like hell, but it's not gonna kill anyone."
of between ten- and fifteen-years' imprisonment and five years' probation. The
trial court accepted the State's recommendation suspended upon the service of
fifteen years' imprisonment.

In his amended PCR application, Miller argued plea counsel was ineffective for
failing to establish communication between Miller and counsel during the plea or
requiring the court to establish a line of communication. At the in-person PCR
hearing, Miller stated that he was at the Spartanburg County Detention Center
during the guilty plea, he did not know where his counsel was, and he did not have
access to his counsel during the plea. He stated the deputies at the detention center
told him he could not speak while the trial court was talking. Miller said he told
the trial court that he was satisfied with counsel even though he was not because he
was "just trying to get this thing over and done with." Miller admitted he was
originally charged with attempted murder and could face at least ten more years'
incarceration if his PCR was successful and he went to trial.

Plea counsel testified that he was at his office during the guilty plea and there was
only one line of communication on the Webex guilty plea call. Plea counsel was
not aware whether Miller knew he had to request a line of communication with
him during the plea. Plea counsel was not sure whether the trial court was
supposed to establish a line of communication between attorney and client during
the Webex call. Plea counsel noted that in the weeks leading up to the guilty plea,
he discussed with Miller the weaknesses in his case and Miller's nonchalant
attitude about the shooting. Plea counsel believed it would be difficult to establish
an effective defense when there were no burn marks on Miller's belongings and
with Miller having stated to others he would do it again. Plea counsel stated it was
Miller's decision to plead guilty and that Miller understood the plea process.

The PCR court found plea counsel was not deficient for failing to ensure there was
a direct line of communication between counsel and Miller during the plea. The
PCR court found there was no denial of the right to speak to counsel. The court
stated, "even if there was a denial of communication, there has been no showing of
prejudice." This appeal followed.

ISSUE ON APPEAL

Did the PCR court err in finding plea counsel was not ineffective for failing to
establish a required line of communication with Miller during the coronavirus-era
Webex guilty plea?
STANDARD OF REVIEW

"Our standard of review in PCR cases depends on the specific issue before us."
Mangal v. State, 421 S.C. 85, 91, 805 S.E.2d 568, 571 (2017). "We will not
uphold a PCR judge's findings if there is no evidence of probative value in the
record to support those findings." Higgins v. State, 307 S.C. 446, 449, 415 S.E.2d
799, 801 (1992). "[Appellate courts] do not defer to a PCR court's rulings on
questions of law." Mangal, 421 S.C. at 91, 805 S.E.2d at 571. "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 Sellner v. State, 416 S.C. 606, 610, 787
S.E.2d 525, 527 (2016)).

LAW/ANALYSIS

"The applicant in a PCR hearing bears the burden of establishing he is entitled to
relief." Goins v. State, 397 S.C. 568, 573, 726 S.E.2d 1, 3 (2012). "In addressing
the adequacy of a PCR applicant's guilty plea, it is proper to consider both the
guilty plea transcript and the evidence presented at the PCR hearing." Sellner, 416
S.C. at 611, 787 S.E.2d at 527.

Specifically, the voluntariness of a guilty plea is not
determined by an examination of a specific inquiry made
by the sentencing judge alone, but is determined from
both the record made at the time of the entry of the guilty
plea, and also from the record of the PCR hearing.

Holden v. State, 393 S.C. 565, 573, 713 S.E.2d 611, 615 (2011) (quoting Roddy v.
State, 339 S.C. 29, 33, 528 S.E.2d 418, 420 (2000)), abrogated on other grounds
by, Smalls v. State, 422 S.C. 174, 810 S.E.2d 836 (2018). "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." Holden, 393 S.C. at 572, 713 S.E.2d at 615 (quoting Roddy, 339 S.C. at 33,
528 S.E.2d at 421). Before a court can accept a guilty plea, "a defendant must be
aware of the privilege against self-incrimination, the right to a jury trial, and the
right to confront one's accusers." Roddy, 339 S.C. at 33, 528 S.E.2d at 421.

"A defendant has the right to the effective assistance of counsel under the Sixth
Amendment to the United States Constitution." Kolle v. State, 386 S.C. 578, 588,
690 S.E.2d 73, 78 (2010) (citing Strickland v. Washington, 466 U.S. 668 (1984)),
abrogated on other grounds by, Smalls, 422 S.C. 174, 810 S.E.2d 836. "[T]here is
a strong presumption that counsel rendered adequate assistance and exercised
reasonable professional judgment in making all significant decisions in the case."
Edwards v. State, 392 S.C. 449, 456, 710 S.E.2d 60, 64 (2011) (quoting Ard v.
Catoe, 372 S.C. 318, 331, 642 S.E.2d 590, 596 (2007)).

Of import in this case is our supreme court's Order Re: Operation of the Trial
Courts During the Coronavirus Emergency (S.C. Sup. Ct. Order dated December
16, 2020). The Order states:

Guilty Pleas. Guilty pleas may be conducted as
specified by section (c)(3) above. However, a guilty plea
by remote communication technology will not be
conducted unless both the defendant and prosecutor
consent. If the defendant will participate by remote
communication technology, the trial court must make a
determination that the defendant is knowingly and
intelligently waiving his right to be physically present for
the plea. If the defendant's counsel will participate by
remote communication technology, the trial court must
determine that the defendant is knowingly and
intelligently waiving any right to have counsel physically
present, and the court must ensure that the defendant has
the ability to consult privately with counsel during the
plea proceeding as may be necessary.

(emphases added). Miller argues plea counsel was deficient for not being aware of
the Order and failing to alert the trial court that he could not privately confer with
Miller during the guilty plea. Miller claims he was denied counsel during the
critical stage of his case, and therefore, prejudice should be presumed. See
McKnight v. State, 320 S.C. 356, 359, 465 S.E.2d 352, 354 (1995) ("[W]hen
counsel is denied at a critical stage of a defendant's trial, prejudice will be
presumed and harmless error analysis is precluded. Inquiry under the two-part test
established in Strickland is therefore inappropriate."). We agree.

In most aspects this was a "textbook" guilty plea. However, during the
unprecedented circumstances of the coronavirus pandemic, the Order added to the
rights of a defendant by requiring the trial court to determine a defendant
knowingly and intelligently waived his rights to be physically present for the guilty
plea and to have counsel physically present. The additional requirements of the
Order were not met here.
We find plea counsel's failure to alert the trial court that he could not privately
communicate with Miller, failure to be aware of the Order, and failure to ensure
the trial court followed the Order with respect to determining whether Miller
knowingly and intelligently waived his rights constituted ineffective assistance of
counsel. Miller told the PCR court he did not have access to plea counsel during
the plea and could not ask plea counsel questions. Plea counsel did not know if
Miller knew he had to request a line of communication with him and he did not
know whether the court was under an obligation to provide a line of
communication between attorney and client. It was plea counsel's responsibility to
ensure Miller's rights were safeguarded. Under the particular facts of this case,
plea counsel failed to render reasonably effective assistance under prevailing
professional norms. See Thompson v. State, 340 S.C. 112, 116, 531 S.E.2d 294,
296 (2000) ("[A]ttorney's failure to object fell below prevailing professional
norms.").

Miller's isolation from counsel with no recourse amounted to denial of counsel
during the guilty plea and was exactly the type of situation the Order was intended
to prevent. Because Miller was effectively denied counsel, prejudice is presumed
in this case. See McKnight, 320 S.C. at 359, 465 S.E.2d at 354 ("[W]hen counsel
is denied at a critical stage of a defendant's trial, prejudice will be presumed and
harmless error analysis is precluded. Inquiry under the two-part test established in
Strickland is therefore inappropriate."). Therefore, the PCR court erred in denying
Miller's PCR application.

CONCLUSION

Accordingly, the order of the PCR court is REVERSED. 2

THOMAS and CURTIS, JJ., concur.

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