Hernandez 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

Erick Hernandez, Petitioner,

v.

State of South Carolina, Respondent.

Appellate Case No. 2016-001142

Appeal From Horry County
Thomas A. Russo, Circuit Court Judge

Unpublished Opinion No. 2020-UP-101
Submitted February 19, 2020 – Filed April 8, 2020

AFFIRMED

Wanda H. Carter, of Columbia, for Petitioner.

Attorney General Alan McCrory Wilson, Senior
Assistant Deputy Attorney General Megan Harrigan
Jameson, and Assistant Attorney General Johnny Ellis
James, Jr., all of Columbia, for Respondent.

PER CURIAM: In this appeal from the denial of an application for post-
conviction relief (PCR), Erick Hernandez argues the PCR judge erred in not
finding his guilty plea was involuntarily given because he was coerced into
waiving a conflict of interest caused by plea counsel's simultaneous representation
of a co-defendant in a drug conspiracy ring. We affirm pursuant to Rule 220(b),
SCACR, and the following authorities: Smalls v. State, 422 S.C. 174, 180-81, 810
S.E.2d 836, 839-40 (2018) ("We defer to a PCR court's findings of fact and will
uphold them if there is any evidence in the record to support them."); Speaks v.
State, 377 S.C. 396, 399, 660 S.E.2d 512, 514 (2008) ("In post-conviction
proceedings, the burden of proof is on the applicant to prove the allegations in his
application."); Lomax v. State, 379 S.C. 93, 101, 665 S.E.2d 164, 168 (2008) ("The
mere possibility defense counsel may have a conflict of interest is insufficient to
impugn a criminal conviction." (quoting State v. Gregory, 364 S.C. 150, 152-53,
612 S.E.2d 449, 450 (2005), abrogated on other grounds by Smalls, 422 S.C. at
181 n.2, 810 S.E.2d at 839 n.2)); id. at 102, 665 S.E.2d at 168 ("[U]ntil a defendant
shows that his counsel actively represented conflicting interests, he has not
established the constitutional predicate for his claim of ineffective assistance."
(quoting Duncan v. State, 281 S.C. 435, 438, 315 S.E.2d 809, 811 (1984)));
Thomas v. State, 346 S.C. 140, 143, 551 S.E.2d 254, 256 (2001) ("To establish a
violation of the Sixth Amendment right to effective counsel due to a conflict of
interest arising from multiple representation, a defendant . . . must show an actual
conflict of interest adversely affected his attorney's performance."); United States
v. Nicholson, 475 F.3d 241, 249 (4th Cir. 2007) ("The petitioner must show (1) that
his lawyer was under 'an actual conflict of interest' and (2) that this conflict
'adversely affected his lawyer's performance.'" (quoting Cuyler v. Sullivan, 446
U.S. 335, 348 (1980))); United States v. Swartz, 975 F.2d 1042, 1048 (4th Cir.
1992) ("[T]he Sixth Amendment right to conflict-free representation, like the right
to counsel itself, may be the subject of a waiver."); Thomas, 346 S.C. at 144, 551
S.E.2d at 256 ("To be valid, a waiver of a conflict of interest must not only be
voluntary, it must be done knowingly and intelligently."); Hyman v. State, 397 S.C.
35, 44, 723 S.E.2d 375, 379 (2012), abrogated on other grounds by Smalls, 422
S.C. at 181 n.2, 810 S.E.2d at 839 n.2 ("When attempting to determine the
voluntary and intelligent nature of a plea, the plea colloquy ordinarily serves as
confirmation that a criminal defendant is waiving the right to raise certain
constitutional claims by pleading guilty."); Kolle v. State, 386 S.C. 578, 589, 690
S.E.2d 73, 78-79 (2010), abrogated on other grounds by Smalls, 422 S.C. at 181
n.2, 810 S.E.2d at 839 n.2 ("[T]he voluntariness of a guilty plea is not determined
by an examination of a specific inquiry made by the [plea court] 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."); Hill v. Lockhart, 474 U.S. 52, 56
(1985) ("The longstanding test for determining the validity of a guilty plea is
'whether the plea represents a voluntary and intelligent choice among the
alternative courses of action open to the defendant.'" (quoting North Carolina v.
Alford, 400 U.S. 25, 31 (1970))).
AFFIRMED.1

HUFF, THOMAS, and MCDONALD, JJ., concur.

1
We decide this case without oral argument pursuant to Rule 215, SCACR.