Weary 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

Willis Weary, Respondent,

v.

State of South Carolina, Petitioner.

Appellate Case No. 2011-201588

ON WRIT OF CERTIORARI

Appeal From Richland County
G. Thomas Cooper, Jr., Trial Judge
James R. Barber, III, Post-Conviction Relief Judge

Unpublished Opinion No. 2016-UP-132
Heard February 2, 2015 – Filed March 9, 2016

REVERSED

Attorney General Alan McCrory Wilson and Assistant
Attorney Megan E. Harrigan, both of Columbia, for
Petitioner.

Appellate Defender Kathrine Haggard Hudgins, of
Columbia, for Respondent.
PER CURIAM: The State of South Carolina (the State) appeals the post-
conviction relief court's (PCR court) order granting Willis Weary's application for
post-conviction relief and remanding his case for sentencing on second-degree
burglary. The State argues the PCR court erred in determining that Weary's trial
counsel provided ineffective assistance by failing to investigate and properly
challenge—at the directed verdict stage in a trial for first-degree burglary—two
prior burglary convictions, which elevated Weary's charge to first-degree burglary.
The State further argues Weary's sentence was appropriately enhanced based on his
three prior burglary convictions. We reverse.

I. Deficient Performance
On April 19, 2006, the Richland County grand jury indicted Weary for first-degree
burglary, alleging the August 20, 2005 burglary occurred "in the nighttime." The
indictment was subsequently amended on January 25, 2007, to include the
additional allegation that Weary had "a prior record of two or more convictions for
burglary." Following a jury trial, Weary was convicted of first-degree burglary
and sentenced to eighteen years of imprisonment. The PCR court subsequently
granted Weary's application for post-conviction relief and remanded for
resentencing on the charge of second-degree burglary. At issue is whether the
PCR court erred in finding that trial counsel was ineffective for failing to
investigate Weary's prior burglary convictions.

In order to establish a claim of ineffective assistance of counsel, a PCR applicant
must prove: (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, 687 (1984). "A
criminal defense attorney has the duty to conduct a reasonable investigation to
discover all reasonably available mitigation evidence and all reasonably available
evidence tending to rebut any aggravating evidence introduced by the State."
McKnight v. State, 378 S.C. 33, 46, 661 S.E.2d 354, 360 (2008). "A decision 'not
to investigate must be directly assessed for reasonableness in all the circumstances,
applying a heavy measure of deference to counsel's judgments.'" Simpson v.
Moore, 367 S.C. 587, 597, 627 S.E.2d 701, 706 (2006) (quoting Strickland, 466
U.S. at 691).

Here, Weary testified that he never discussed his prior burglary convictions with
trial counsel. Likewise, trial counsel did not recall discussing the prior convictions
with Weary and did not have any notes reflecting such a discussion. Despite the
fact that the indictments and records related to the prior burglaries were available
to trial counsel before Weary's trial on the 2005 burglary charge, trial counsel
could not confirm that he pulled or reviewed the documents and admitted that he
did not have a copy of them in his file. Trial counsel testified that he should have
investigated Weary's prior convictions. He did not recall conducting any legal
research regarding the prior convictions, did not have any legal research in his file,
and did not cite any specific case law or statutes at trial. Therefore, we find no
error in the decision of the PCR court finding that trial counsel failed to render
reasonably effective assistance under prevailing professional norms. This finding
does not conclude our analysis, however, because we must determine if Weary
suffered any prejudice and to do that, analyze his prior convictions.

II. Prior Burglary Convictions

The State argues the PCR court erred in finding Weary's two prior burglary
convictions do not satisfy the requirements for a subsequent first-degree burglary
conviction based on the "two or more prior convictions" element.

A person is guilty of first-degree burglary "if the person enters a dwelling without
consent and with intent to commit a crime in the dwelling and . . . the burglary is
committed by a person with a prior record of two or more convictions for burglary
or housebreaking or a combination of both; or the entering or remaining occurs in
the nighttime." S.C. Code Ann. § 16-11-311(A)(2)-(3) (2003) (emphasis added).
Our supreme court has explained that section 16-11-311 "allows the State to punish
Defendant's recidivism by using his previous convictions to elevate actions that
would normally constitute a burglary, second degree charge to a charge of
burglary, first degree." State v. Washington, 338 S.C. 392, 396, 526 S.E.2d 709,
711 (2000). In seeking an enhanced punishment under this section, "the State is
punishing Defendant to a greater extent for the current offense due to his repetitive
illegal actions." Id. at 397, 526 S.E.2d at 711. "Considering this interpretation of
section 16-11-311(A)(2), it is clear that the legislative policy behind the enactment
of this section is to provide 'a stiffened penalty for the latest crime, which is
considered to be an aggravated offense because it is a repetitive one.'" State v.
Zulfer, 345 S.C. 258, 263, 547 S.E.2d 885, 887 (Ct. App. 2001) (quoting
Washington, 338 S.C. at 396, 526 S.E.2d at 711).

For the purpose of sentencing, "the court shall treat as one offense any number of
offenses which have been committed at times so closely connected in point of time
that they may be considered as one offense, notwithstanding under the law they
constitute separate and distinct offenses." S.C. Code Ann. § 17-25-50 (2014)
(emphasis added). See, e.g., S.C. Code Ann. § 56-1-1020 (2006) (explaining that
multiple traffic offenses committed within a one-day period "shall be treated for
the purposes of this article as one offense"); State v. Woody, 359 S.C. 1, 3–4, 596
S.E.2d 907, 908 (2004) (rejecting the State's position that defendant's two prior
armed robberies, which arose from a single incident at the same time and at the
same location, did not constitute one offense); State v. Boyd, 288 S.C. 206, 209–
10, 341 S.E.2d 144, 146 (Ct. App. 1986) ("[W]e hold that where a defendant has
been convicted on two or more counts for the violation of the Controlled Substance
Act arising out of simultaneous acts committed in the course of a single incident,
the convictions will be considered as only one for the purpose of sentencing under
a subsequent conviction for a violation of the Controlled Substance Act."). But see
Bryant v. State, 384 S.C. 525, 533–34, 683 S.E.2d 280, 284–85 (2009) (explaining
that when a defendant commits three separate armed robberies on different days, at
different locations, and the robberies involved different victims, the "armed
robberies may not, as a matter of law, be considered 'one offense'"); Koon v. State,
372 S.C. 531, 534, 643 S.E.2d 680, 682 (2007) (concluding that "the March 28th
burglary of a different building, in a different location, which occurred two weeks
later [than the March 13th and 14th burglaries], clearly constitutes a separate
burglary").

Here, Weary's two prior second-degree burglaries took place within ten to fifteen
minutes of one another on November 24, 2000, as part of a single crime spree.
Further, the residences where the burglaries took place are close in proximity.
Despite the fact that the November 24, 2000 burglaries involved different victims,
we find the PCR court's determination that Weary provided sufficient evidence that
the burglaries occurred within a single crime spree and were so closely connected
in point of time that they may be considered as one offense is supported by the
evidence.

Although the State only introduced evidence of two prior burglary convictions at
trial, the record reflects that Weary has three prior burglary convictions. Even if
trial counsel had argued that the two prior burglaries presented were too close in
time to be considered two separate offenses, the first-degree burglary charge would
still have gone to the jury because the State would have simply introduced its
evidence of Weary's third prior burglary, which was not closely related in time to
the other priors and would clearly have qualified as an additional burglary offense.
Therefore, we reverse the PCR court's finding that Weary's two prior burglary
convictions did not satisfy the requirements for a subsequent first-degree burglary
conviction based on the "two or more prior convictions" element.
III. Prejudice

The State further argues that even if the PCR court did not err in determining trial
counsel was ineffective for failing to investigate Weary's prior burglary
convictions, Weary cannot show any resulting prejudice. We agree.

To show prejudice, a PCR applicant must establish that the deficient performance
prejudiced the applicant to the extent that "there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the proceeding would have
been different.'" Strickland, 466 U.S. at 694. "A 'reasonable probability' is less
than a preponderance of the evidence but still 'probability sufficient to undermine
confidence in the outcome.'" Weik v. State, 409 S.C. 214, 233, 761 S.E.2d 757,
767 (2014) (quoting Strickland, 466 U.S. at 693–94). "This does not require a
showing that counsel's actions 'more likely than not altered the outcome,' but the
difference between Strickland's prejudice standard and a more-probable-than-not
standard is slight and matters 'only in the rarest case.'" Harrington v. Richter, 562
U.S. 86, 112 (2011) (quoting Strickland, 466 U.S. at 693).

Here, the record reflects that Weary had three prior burglary convictions, two of
which could not be considered as "so closely connected in point of time that they
may be considered as one offense." Therefore, we reverse the finding of the PCR
court that but for trial counsel's deficiency, a different outcome would have
resulted at trial.1

Accordingly, the decision of the PCR court is

REVERSED.

SHORT, LOCKEMY, and MCDONALD, JJ., concur.

1
Because we reverse on the Strickland prejudice element, we decline to address the
question of whether the PCR court's remedy of remanding for sentencing on
second-degree burglary, as opposed to granting a new trial on first-degree burglary,
was proper. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598,
613, 518 S.E.2d 591, 598 (1999) (holding the appellate court need not address
remaining issues when disposition of a prior issue is dispositive).