Mitchum 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

West Webb Mitchum, Petitioner,

v.

State of South Carolina, Respondent.

Appellate Case No. 2012-212400

ON WRIT OF CERTIORARI

Appeal From Charleston County
Deadra L. Jefferson, Plea Judge
Kristi Lea Harrington, Post-Conviction Relief Judge

Unpublished Opinion No. 2015-UP-559
Submitted October 1, 2015 – Filed December 23, 2015

REVERSED

Appellate Defender Benjamin John Tripp, of Columbia,
for Petitioner.

Attorney General Alan McCrory Wilson and Assistant
Deputy Attorney General James Rutledge Johnson, both
of Columbia, for Respondent.
PER CURIAM: West Webb Mitchum appeals the denial of his application for
post-conviction relief (PCR), arguing the PCR court erred by failing to find his
plea counsel ineffective due to an actual conflict of interest that arose out of the
dual representation of Mitchum and codefendant Daniel Martin. We agree and
reverse the PCR court's finding that no actual conflict of interest existed. See Stalk
v. State, 375 S.C. 289, 296, 652 S.E.2d 402, 405 (Ct. App. 2007) ("[W]here there is
no evidence of probative value to support the findings of the PCR court, the
appellate court will reverse."), aff'd as modified, 383 S.C. 559, 681 S.E.2d 592
(2009).

Mitchum and Martin engaged in a conspiracy spanning several years wherein they
purchased cocaine and equally divided it amongst themselves for both personal use
and sale. The State indicted Mitchum for one count of conspiracy to traffic
cocaine, one count of possession with intent to distribute cocaine, and nine counts
of trafficking cocaine. The State indicted Martin for conspiracy to traffic cocaine
and possession with intent to distribute cocaine but did not indict Martin on any
trafficking charges. A conflict of interest existed at this point because it was in
Mitchum's interest to argue he and Martin were equally culpable and the State was
selectively prosecuting him. See State v. Condrey, 349 S.C. 184, 193, 562 S.E.2d
320, 324 (Ct. App. 2002) ("[T]he acts and declarations of any conspirator made
during the conspiracy and in furtherance thereof are deemed to be the acts and
declarations of every other conspirator and are admissible against all." (quoting
State v. Sullivan, 277 S.C. 35, 42, 282 S.E.2d 838, 842 (1981)). Moreover, at
Mitchum and Martin's plea hearing, the State recommended a sentence of fifteen
years' imprisonment for Martin and a sentence of twenty years' imprisonment for
Mitchum. It was therefore also in Mitchum's interest at this point to argue, based
on their equal culpability, that he and Martin should be given equal sentences.
Consequently, Mitchum's and Martin's interests were adverse to one another
because advancing such arguments would be detrimental to Martin, and a conflict
of interest arose when plea counsel assumed representation of both clients.1 See
Lomax v. State, 379 S.C. 93, 101, 665 S.E.2d 164, 168 (2008) ("An actual conflict
of interest occurs where an attorney owes a duty to a party whose interests are

1
We also note it was in Mitchum's interest to further argue for a lighter sentence
than Martin because his prior criminal record was less extensive than Martin's.
adverse to the defendant's." (quoting Staggs v. State, 372 S.C. 549, 551, 643 S.E.2d
690, 692 (2007)).

Furthermore, this conflict of interest adversely affected plea counsel's performance
at the plea hearing because he failed to advance the above arguments and seek a
more favorable sentence on Mitchum's behalf. See id. ("To establish a violation of
the Sixth Amendment right to effective counsel due to a conflict of interest arising
from multiple representation, a defendant who did not object at trial must show an
actual conflict of interest adversely affected his attorney's performance." (quoting
Thomas v. State, 346 S.C. 140, 143, 551 S.E.2d 254, 256 (2001)). Mitchum was
thus denied the effective assistance of counsel at his plea hearing. See id. at 102,
665 S.E.2d at 168 ("[A] defendant need not demonstrate prejudice if there is an
actual conflict of interest." (quoting State v. Gregory, 364 S.C. 150, 153, 612
S.E.2d 449, 450 (2005)).

REVERSED.2

FEW, C.J., and KONDUROS and LOCKEMY, JJ., concur.

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