Graham 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 P. Graham, Petitioner-Respondent,

v.

State of South Carolina, Respondent-Petitioner.

Appeal From Horry County

Steven H. John, Trial Judge

John L Breeden, Jr., Trial Judge

 Paula H. Thomas, Post-Conviction Relief Judge

Unpublished Opinion No. 2009-UP-268

Submitted May 1, 2009 – Filed June 2, 2009

Affirmed

Appellate Defender Elizabeth A. Franklin, of Columbia, for Petitioner-Respondent.

Attorney
General Henry D. McMaster, Chief Deputy Attorney John W. McIntosh, Assistant
Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Christina J. Catoe, all of Columbia, for Respondent-Petitioner. 

PER
CURIAM: Charles P. Graham was convicted of distribution of crack
cocaine at trial on May 29, 2003 (first trial).  Graham was convicted on a
second charge of distribution of crack cocaine at trial on June 25, 2003 (second
trial).  Graham did not appeal either conviction or sentence.  Graham filed an
application for post-conviction relief (PCR) alleging ineffective assistance of
counsel at both trials.[1] 
The PCR court found trial counsel was ineffective in Graham's first trial and
granted a new trial.  The PCR court denied Graham's application for PCR as to
his second trial, but found trial counsel's deficient performance in the first
trial influenced the sentencing phase of Graham's second trial and granted a
new sentencing hearing. 

Graham seeks a writ of certiorari from the denial of his application
for PCR as to his second trial (Question I) and from the grant of a belated
appeal (Question II).  The State cross-petitions seeking a writ of certiorari
from the PCR court's grant of a new trial for Graham's first trial, and a new
sentencing hearing for his second trial (State's Petition).

Because evidence
supports the PCR court's finding that Graham did not knowingly and
intelligently waive his right to a direct appeal, we grant certiorari on
Graham's Question II and proceed with a review of the direct appeal issues
pursuant to Davis v. State, 288 S.C. 290, 342 S.E.2d 60 (1986) and White v. State,
263 S.C. 110, 208 S.E.2d 35 (1974).  We deny the petition for certiorari as to
Graham's Question I and as to the State's Petition.   

As to
Graham's direct appeal issues, we affirm[2] pursuant to Rule 220(b), SCACR, and the following authorities: Humbert v.
State, 345 S.C. 332, 337-38, 548 S.E.2d 862, 865 (2001) (finding a
"defendant's appearance at trial dressed in jail clothing is not automatically
reversible error");  Id. at 337-38 n.4, 548 S.E.2d at 865 n.4
("[I]n order to obtain a new trial on direct appeal, an objection must be
raised at trial."); State v. Haigler, 334 S.C. 623, 629, 515 S.E.2d
88, 91 (1999) ("The burden of persuading the court that a Batson violation
has occurred remains at all times on the opponent of the strike.").  

Affirmed.  

HUFF, PIEPER,
and GEATHERS, JJ., concur.

[1] Graham retained the same counsel at both trials.

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