Hook 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 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Roy Edward
Hook, Respondent,

v.

State of South Carolina, Petitioner.

ON WRIT OF CERTIORARI

Appeal From Barnwell County

 Doyet A. Early, III, Post-Conviction Relief Judge

Unpublished Opinion No. 2009-UP-100

Submitted February 2, 2009 – Filed
February 26, 2009   

REVERSED

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

Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant
Attorney General Lance Boozer, all of Columbia, for Petitioner.

PER CURIAM: In
this post-conviction relief (PCR) case, we granted certiorari to review the PCR
judge's grant of relief for Roy Edward Hook.  We reverse. [1]

Hook
applied for PCR after his five-year probationary sentence was revoked in full. 
After a hearing, the PCR judge granted relief, finding Hook's counsel was
ineffective for (1) failing to call witnesses on Hook's behalf and (2) failing
to object when a probation agent informed the revocation judge of Hook's
pending criminal charges.  We find neither ground supports a finding of
ineffective assistance of counsel. 

1. 
At the PCR hearing, Hook did not proffer the testimony of the witnesses he
argues counsel should have called during the probation revocation hearing. 
Accordingly, he had failed to show how he was prejudiced by any deficient
performance of his revocation counsel.  See Porter v. State, 368 S.C.
378, 386, 629 S.E.2d 353, 358 (2006) ("Mere speculation of what a witness'[s]
testimony may be is insufficient to satisfy the burden of showing prejudice in
a petition for PCR."); Dempsey v. State, 363 S.C. 365, 369, 610
S.E.2d 812, 814 (2005) (holding a PCR applicant cannot show that he was
prejudiced by counsel's failure to call a favorable witness to testify at trial
if that witness does not later testify at the PCR hearing or otherwise offer
testimony within the rules of evidence); Strickland v. Washington, 466
U.S. 668, 687 (1984) (explaining in order to establish a claim of ineffective
assistance of counsel, a PCR applicant must prove: (1) counsel's performance
was deficient, and (2) the deficient performance prejudiced the applicant's
case). 

2. 
When the revocation judge revoked Hook's probation in full, he cited the
following grounds: (1) failure to report; (2) conviction for writing fraudulent
checks; and (3) failure to follow his probation agent's advice.  Because the
charges pending against Hook were not the reason for revoking his probation,
Hook again failed to prove the prejudice prong of Strickland v. Washington.
466 U.S. at 687.

REVERSED.

HEARN, C.J., CURETON, A.J., and GOOLSBY, A.J.

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