Herbert Smalls 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

Herbert Smalls, Petitioner,

v.

State of South Carolina, Respondent.

Appellate Case No. 2022-001151

Appeal From Charleston County
Clifton Newman, Circuit Court Judge

Unpublished Opinion No. 2025-UP-306
Heard May 6, 2025 – Filed September 3, 2025

AFFIRMED

Elizabeth Anne Franklin-Best, of Elizabeth
Franklin-Best, P.C., of Columbia, for Petitioner.

Attorney General Alan McCrory Wilson and Assistant
Attorney General Joshua Abraham Edwards, of
Columbia; and Solicitor David M. Stumbo, of
Greenwood, for Respondent.

PER CURIAM: In this post-conviction relief (PCR) action, Petitioner Herbert
Smalls argues the PCR court erred in finding the record of the plea hearing
sufficiently reconstructed so as to allow for meaningful appellate review, and in
finding Plea Counsel was not ineffective. We affirm.

BACKGROUND/FACTS

On April 25, 2007, police responded to reports of a shooting on Rivers Avenue in
Charleston and found James Stewart lying on the ground with a gunshot wound to
his upper chest. Stewart died at the scene. Stewart's ex-wife was with him at the
time of the shooting and told police the two were walking down the street with their
bike when two men approached them. One of the men pulled out a gun, shot Stewart
in the chest at close range, and then left the scene on the Stewarts' bike. Stewart's
ex-wife gave police a description of the two men, and police obtained a video from
a nearby school showing the two men as they approached the area.
In May of 2007, Petitioner and his co-defendant were arrested in connection with an
unrelated attempted armed robbery in Charleston. When questioned, his
co-defendant gave a statement to law enforcement implicating himself and Petitioner
in Stewart's murder. Petitioner was arrested for the murder on June 9, 2007, and
held without bond. Police had originally arrested another man for the murder but
dismissed the charges against him when they learned the man had been incarcerated
at the time of the murder. Because of Petitioner's 1997 convictions for armed
robbery and assault and battery with intent to kill, the State served him with notice
of its intent to seek a sentence of life without the possibility of parole (LWOP) for
both pending charges.

Petitioner was represented by attorney David Holton (Plea Counsel) on the murder
charge, and attorney Alex Apostolou on the attempted armed robbery charge. On
August 2, 2010, Petitioner pled guilty to murder in exchange for the State's
agreement to dismiss the pending attempted armed robbery charge, to withdraw the
LWOP notice, and to allow him to plead "straight up." Petitioner was sentenced to
forty years. Plea Counsel filed a timely notice of appeal on Petitioner's behalf, which
was summarily dismissed on error preservation grounds on November 8, 2010.

Petitioner filed an untimely pro se PCR application, which was dismissed by the
circuit court as outside of the statute of limitations.1 Petitioner appealed the
dismissal, arguing for the first time that Plea Counsel was ineffective in failing to
request a competency evaluation prior to his guilty plea. On April 28, 2015, the

1
Petitioner did not file the PCR action until September 20, 2013, more than three
years after entering his guilty plea.
supreme court remanded the case for a hearing pursuant to Ferguson v. State, 382
S.C. 615, 677 S.E.2d 600 (2009), to determine whether Petitioner's mental incapacity
prevented him from filing a timely PCR application. The circuit court conducted a
hearing and determined the statute of limitations should be tolled due to Petitioner's
mental incapacity and granted him a belated evidentiary hearing to address the merits
of his PCR.

Because of the long and tortured procedural history, it was 2018 before PCR Counsel
requested the transcript of the plea hearing and discovered it had been destroyed.2
A reconstruction hearing was convened on February 9, 2021, in front of the original
plea judge. At the end of the hearing, the plea judge issued an order declaring the
record of the plea hearing was sufficiently reconstructed.
An evidentiary hearing on Petitioner's amended application was held on March 22,
2021. Petitioner alleged in his amended petition that the guilty plea was not entered
knowingly and voluntarily because of Petitioner's "diminished intellectual
capabilities." At the evidentiary hearing, PCR Counsel also argued Plea Counsel
was ineffective for failing to inform him of the weakness of the State's case, failing
to review discovery with him, and failing to advise him of the consequences of his
plea. Petitioner claimed his intellectual disabilities and mental health conditions
prevented him from having a full understanding of the consequences of his plea,
rendering his guilty plea unknowing and involuntary. The PCR court denied relief
and dismissed the action with prejudice, finding Petitioner failed to produce any
evidence of the alleged deficiency of Plea Counsel, failed to show that his plea was
entered involuntarily, failed to show he was prejudiced by Plea Counsel's conduct,
and failed to prove that he was incompetent at the time he entered the plea. The PCR
court did not make any ruling regarding the sufficiency of the plea transcript
reconstruction, but noted, "this Court respects [the plea judge's] finding that the plea
transcript was appropriately reconstructed. This Court does not have the authority
to set aside the order of another [circuit court judge]. . . . Accordingly, this is not an
issue before the Court during this PCR proceeding." This appeal followed.

2
The State did not initially order the transcript of the proceeding because it sought
to summarily dismiss the application as barred by the statute of limitations and did
not believe a transcript was necessary. The circuit court summarily dismissed the
action as untimely. The supreme court remanded the case for a Ferguson hearing in
2015, and the order setting the case for a full evidentiary hearing was entered on
February 2, 2018, which was beyond the five-year retention period for court
reporters under Rule 607(i), SCACR.
STANDARD OF REVIEW

"In post-conviction proceedings, the burden of proof is on the [petitioner] to prove
the allegations in his application." Speaks v. State, 377 S.C. 396, 399, 660 S.E.2d
512, 514 (2008). "[An appellate court] gives great deference to the factual findings
of the PCR court and will uphold them if there is any evidence of probative value to
support them." Sellner v. State, 416 S.C. 606, 610, 787 S.E.2d 525, 527 (2016).
"Questions of law are reviewed de novo, and we will reverse the PCR court's
decision when it is controlled by an error of law." Id.

LAW/ANALYSIS

I. Sufficiency Of the Reconstructed Record

Petitioner argues the PCR court erred in finding the record of the plea hearing was
sufficiently reconstructed. We disagree.
Where a transcript has been lost or destroyed, an appellate court may remand to have
the record reconstructed. See Whitehead v. State, 352 S.C. 215, 221, 574 S.E.2d
200, 203 (2002). In South Carolina, as in a majority of jurisdictions, "the inability
to prepare a complete verbatim transcript, in and of itself, does not necessarily
present a sufficient ground for reversal." State v. Ladson, 373 S.C. 320, 324, 644
S.E.2d 271, 273 (Ct. App. 2007) (quoting Smith v. State, 433 A.2d 1143, 1148 (Md.
1981)). The party challenging a reconstructed record must show prejudice flowing
from the inadequate record. Id. "[B]efore a defendant can establish that he is entitled
to a new trial on the basis of an inadequate reconstructed record, he must identify a
specific appellate claim that this court would be unable to review effectively using
the reconstructed record." Id. at 325, 644 S.E.2d at 273 (alteration in original)
(quoting Harris v. Comm'r of Corr., 671 A.2d 359, 363 (Conn. App. Ct. 1996)).

At the reconstruction hearing, the plea judge did not have any recollection of
Petitioner's plea hearing but explained his normal procedure for accepting guilty
pleas. He explained that he uses a checklist and always advises defendants of their
rights when accepting a plea. He detailed his customary plea colloquy and explained
that he always makes a finding regarding whether the plea was made knowingly and
voluntarily. He further explained he would have followed up with additional
questions if there were any issues about Petitioner's medications or mental health
concerns, stating, "obviously, if there was an issue about competency to stand trial
or plead, we wouldn't go any further." He also expressed faith in Plea Counsel's
abilities, stating that he was "an excellent lawyer" who had appeared in front of him
a number of times and "always did a good job."
Julie Cardillo, the assistant solicitor who handled the plea on behalf of the State, also
testified at the reconstruction hearing. She remembered some of the facts of the case,
but did not remember the specifics of the plea hearing. Cardillo appeared before the
plea judge more than fifty times in her nine years with the solicitor's office and
testified to the judge's normal practice in accepting guilty pleas. Based on prior
experience with the judge, she testified he would have stopped the plea if he were
concerned about Petitioner having an intellectual disability or being under the
influence of medications.

Plea Counsel was not present for the reconstruction hearing due to medical issues,
but Defense Counsel Alex Apostolou, who was present at Petitioner's plea hearing,
presented the most detailed testimony at the reconstruction hearing. Apostolou did
not recall any mental health issues being discussed at the plea hearing. He testified
that "if that topic . . . had been opened in the courtroom, it would have been
explored." Apostolou specifically remembered that Petitioner agreed with the
solicitor's recitation of the facts and admitted his guilt. He testified he and Plea
Counsel had previously met with the solicitor and with Petitioner together regarding
the charges, and he would not have allowed the plea to go forward if he felt there
were any issues with Petitioner's competency.
In this case, Petitioner does not allege that the plea judge failed to adequately advise
him of his rights, nor does Petitioner point to any specific issue that cannot
adequately be addressed on appeal due to the transcript's alleged inadequacy.
Petitioner was represented by able Plea Counsel. In addition, the transcript of the
plea hearing is missing through no fault or wrongdoing of the State. Under these
circumstances, we find no error in relying on evidence of the plea judge's "custom
and practice," along with other evidence, to reconstruct the plea hearing, and we
affirm the PCR court's finding that the plea hearing was sufficiently reconstructed.
See, e.g., United States v. DeForest, 946 F.2d 523, 525 (7th Cir. 1991) (citation
omitted) ("The transcript of the guilty plea proceeding must affirmatively disclose
the voluntary and knowing nature of the plea. In the absence of a transcript, the
testimony of the defendant's attorney as to his and the trial court's custom and
practice with respect to guilty pleas is sufficient to demonstrate compliance with
constitutional standards."); United States v. Dickerson, 901 F.2d 579, 583 (7th Cir.
1990) ("Thus, an untranscribed court proceeding does not, in and of itself, require a
holding that a guilty plea was infirm. Instead, we investigate the custom, practice[,]
and law applicable to Illinois guilty pleas and if possible the particular court's
practice to determine whether the plea was an intelligent and voluntary waiver of
Dickerson's rights."); United States v. Dickens, 879 F.2d 410, 411–12 (8th Cir.
1989) ("When a prior conviction is a number of years old and there is no transcript
of the taking of the plea, 'evidence of the trial court's practice is precisely the
evidence which the government will have at its disposal.' (citation omitted) We
previously have recognized the validity of relying on evidence of the custom and
practice of trial attorneys and judges to refute allegations of procedural infirmities.");
Commonwealth v. Quinones, 608 N.E.2d 724, 730 (Mass. 1993) ("We see no
impropriety . . . in relying on a judge's customary practice in taking guilty pleas to
reconstruct the record."). 3

II. Ineffective Assistance of Counsel
Petitioner alleges Plea Counsel was ineffective in that he failed to explain his rights,
the consequences of his plea, and the weakness of the State's case against him. In
addition, Petitioner argues Plea Counsel failed to review the discovery with him even
though Plea Counsel was on notice of Petitioner's "diminished intellectual
capabilities." He argues that his diminished intellectual ability prevented him from
understanding the consequences of his plea and he therefore did not plead guilty
knowingly and voluntarily. The PCR court found that none of the evidence
presented by Petitioner "explains if or how the prior difficulties prevented him from
being able to knowingly and intelligently plead guilty . . . ."

A petitioner alleging his guilty plea was induced by ineffective assistance of counsel
must prove counsel's advice to plead guilty was not "within the range of competence
demanded of attorneys in criminal cases." Hill v. Lockhart, 474 U.S. 52, 56 (1985)

3
This court asked the parties to brief the issue of whether the order finding the record
sufficiently reconstructed was immediately appealable. Both the State and Petitioner
asserted that the order is not immediately appealable and we agree. The legislature
has limited those decisions and orders that are immediately appealable. S.C. Code
Ann. § 14-3-330 (2017). "An order which does not finally end a case or prevent a
final judgment from which a party may seek appellate review usually is considered
an interlocutory order from which no immediate appeal is allowed." Hagood v.
Sommerville, 362 S.C. 191, 195, 607 S.E.2d 707, 709 (2005). While the plea judge's
order effectively denies Petitioner a new trial on the grounds of the insufficiency of
the record, it does not finally end the case or prevent a final judgment from which a
party may seek appellate review.
(quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). The "prejudice" prong
of the Strickland test focuses on "whether counsel's constitutionally ineffective
performance affected the outcome of the plea process." Id. at 59. Specifically, when
a petitioner claims counsel's deficient performance caused him to accept a plea, the
petitioner "must show that there is a reasonable probability that, but for [plea]
counsel's errors, he would not have pleaded guilty and would have insisted on going
to trial." Id. "[A] petitioner must convince the court that a decision to reject the plea
bargain would have been rational under the circumstances." Padilla v. Kentucky, 559
U.S. 356, 372 (2010).
Because "[a] guilty plea is a solemn, judicial admission of the truth of the charges
against an individual[,] . . . a criminal inmate's right to contest the validity of such a
plea is usually, but not invariably, foreclosed." Dalton v. State, 376 S.C. 130, 137,
654 S.E.2d 870, 874 (Ct. App. 2007). Admissions "made during a guilty plea should
be considered conclusive unless [Petitioner] presents valid reasons why he should
be allowed to depart from the truth of his statements." Id. at 137–38, 654 S.E.2d at
874. The societal interest in finality has "special force with respect to convictions
based on guilty pleas." Lee v. United States, 582 U.S. 357, 368–69 (2017) (quoting
United States v. Timmreck, 441 U.S. 780, 784 (1979)).

Due process of law "prohibits the conviction of a person who is mentally
incompetent." Jeter v. State, 308 S.C. 230, 232, 417 S.E.2d 594, 595 (1992). Under
section 44-23-410(A)(1) of the South Carolina Code (2018):
(A) Whenever a judge of the circuit court . . . reason to believe that a
person on trial before him . . . is not fit to stand trial because the person
lacks the capacity to understand the proceedings against him or to assist
in his own defense as a result of a lack of mental capacity, the judge
shall:

(1) order examination of the person by two examiners designated by
the Department of Mental Health if the person is suspected of having a
mental illness or designated by the Department of Disabilities and
Special Needs if the person is suspected of having intellectual disability
or having a related disability or by both sets of examiners if the person
is suspected of having both mental illness and intellectual disability or
a related disability.
If the circuit court "believes the person may be unfit to stand trial, a competency
evaluation is compulsory." State v. Colden, 372 S.C. 428, 441, 641 S.E.2d 912, 920
(Ct. App. 2007). Courts consider three factors in "determining whether further
inquiry into a defendant['s] fitness to stand trial is warranted. . . . [:] (1) evidence of
irrational behavior; (2) demeanor at trial; and (3) prior medical opinion regarding
ability to stand trial." Id. "In some instances, the presence of just one of the factors
may justify further inquiry requiring a mental evaluation." Id. "The defendant bears
the burden of proving his lack of competence by a preponderance of the
evidence. . . ." State v. Weik, 356 S.C. 76, 81, 587 S.E.2d 683, 685 (2002).

During Petitioner's Ferguson hearing, Dr. Leonard Mulbry, a forensic psychiatrist,
testified he evaluated Petitioner to determine whether "his capacity was impaired by
mental illness to such an extent that it would impair his ability to file a timely PCR
action." Dr. Mulbry reviewed Petitioner's school and SCDC records. He reviewed
IQ tests administered when Petitioner was fifteen years old and he evaluated
Petitioner when he was thirty-six years old and had been in SCDC custody for about
six years. He found Petitioner's IQ showed he was between mild and moderately
intellectually disabled. He found Petitioner's "adaptive behavior" was at a
third-grade level and that he did not read or write. He testified Petitioner had been
treated consistently for bipolar disorder while at SCDC. The Ferguson court tolled
the statute of limitations and granted Petitioner a belated PCR, finding Petitioner had
established, to a reasonable degree of medical certainty, that his "intellectual
deficiencies and mood disorder would impair his capacity to recognize deadlines,
execute a legal document, and meet the deadlines for executing the legal
instruments."
At the PCR evidentiary hearing, Petitioner did not offer any expert testimony
regarding either his mental health issues or intellectual disabilities. Dr. Mulbry did
not testify at the evidentiary hearing, and his report was not admitted into evidence.
PCR Counsel seemed to concede Petitioner was competent to enter the guilty plea
and to focus solely on Petitioner's intellectual disabilities, stating:
I don't think we ever alleged that there was competency
[sic] to stand at trial, but I think the issue is whether or not,
you know, my client was able – whether or not he was
getting good advice from his attorney. I mean, I think
there was a difference here about whether or not he was in
a position to just say, all right, I'm going to go ahead and
plea. Versus whether or not he was, you know, there was
some issue about his mental acuity that he would have –
I'm not saying he would have failed a Blair Hearing at
that time. I'm just saying he was under a lot of medication
and he might not have been making the best decisions.
And he might not have been making intelligent decisions,
and he may have been over born by persuasion from his
attorney. 4

Petitioner testified he takes medication for mood swings and was on five different
medications at the time of the PCR hearing. He testified he has been on medications
since he was a little boy. He further testified he had always been in "special ed"
classes in school and had suffered a head fracture as a child. Petitioner claimed he
only saw Plea Counsel two times before the plea hearing, they never discussed the
discovery, and he never saw any of the discovery. He alleged he only knew "a couple
of days before court" that someone else had initially been arrested for the murder.
He further testified he did not know until after he was sentenced that the witness had
been unable to positively identify him. Petitioner also claimed Plea Counsel never
informed him the State made an earlier plea offer for voluntary manslaughter.

Greg Voigt was the assistant solicitor assigned to Petitioner's case. Voigt was
involved in plea negotiations and had prepared the case for trial but was sick on the
day of Petitioner's guilty plea. He testified that the evidence in the murder case was
not particularly strong. In reviewing his file, he did not believe the State conducted
much of an investigation after Petitioner's arrest. Investigators attempted to
interview the victim's ex-wife who witnessed the murder, but she "had a complete
falling out" during the interview and was unable to make an identification. He
believed he may have offered to allow Petitioner to plead to manslaughter because
of the weakness of the State's case, but Petitioner rejected the plea offer. Once the
case was placed on the trial list, the solicitor's policy was to withdraw any previous
plea offers. Though Voigt testified the murder case was not the strongest, Petitioner's
co-defendant was prepared to testify against him. Voigt felt the evidence against
Petitioner in the pending attempted armed robbery case was much stronger than the
evidence in the murder case. Voigt notified Petitioner of the State's intention to seek
an LWOP sentence as to both pending charges. Voigt testified he had the leverage
of the attempted armed robbery case to use against Petitioner in the murder case,
which gave the State "multiple ways we could get him, even without getting a verdict
on the murder case."

4
Even taking the testimony of Dr. Mulbry into consideration, we find no error.
During the Ferguson hearing, Dr. Mulbry offered no testimony as to what
Petitioner's mental state or understanding was at the time he entered the guilty plea
or how Petitioner's intellectual disabilities would have impacted his ability to
understand the consequences of his plea agreement.
Petitioner's claim that his diminished intellectual capacity rendered his plea
involuntary, and that he was not aware of the State's previous offer is contradicted
by the testimony of attorney Alex Apostolou. Apostolou testified that while
Petitioner was not "a very sophisticated defendant," he had no concerns about his
competency. He testified that Petitioner was able to assist in his defense, was able
to understand the nature of the charges against him, and was able to talk through the
"elaborate" discovery materials. Apostolou testified that he would have had
Petitioner evaluated if he had noticed any signs of incompetence. Apostolou
testified he attended a meeting with the solicitor and Petitioner's Plea Counsel, and
they had left the meeting with a plea offer. Apostolou and Plea Counsel then met
with Petitioner with the purpose of communicating the plea offer. In addition,
Petitioner had previously been convicted of two serious crimes, and there was no
evidence or testimony that he had been found incompetent in any prior criminal
proceeding.
Petitioner's own pro se filings, filed prior to entering his guilty plea, show that he
understood very well the weaknesses of the State's evidence against him on the
murder charge and had reviewed the discovery before entering his guilty plea.
Petitioner filed a pro se motion for bond on May 3, 2008, several years prior to
entering a guilty plea. In the motion, Petitioner references the following:

1. another man, Anthony Watley, had been previously charged with the
murder and "Eyewitnesses placed Watley at the scene;"
2. written statements given by Curtis Nathaniel, Derrick Felder, and
Darryl Johnson;
3. the witness Sheila Diane Ramsey gave three different statements to law
enforcement that don't "coincide" and her credibility is suspect due to
her prior criminal convictions and drug use;
4. the inconsistent statements made by his co–defendant Marcus Quarles,
on June 6th and 7th, 2007, and the fact that Quarles "wrote 2 different
statements;" and
5. "The State has no physical evidence to link [Petitioner to the murder]
or to show that he harmed another individual."

Petitioner also wrote a letter to the court on February 2, 2010 (filed Feb. 26, 2010),
where he states, "My co-defendant's statement is unreliable and his credibility is
worth nothing. You know his past criminal history."
These pro se letters and motions, filed some years prior to his plea, show that
Petitioner was aware of the State's evidence, the substance of the witnesses'
statements against him, the lack of physical evidence implicating him, and that the
State previously charged another man with the murder. The information within the
motions and letters could only have come from Petitioner. We find Petitioner's
testimony that Plea Counsel never discussed the case with him wholly lacking in
credibility based on Petitioner's pro se filings.

While both Voigt and Apostolou testified the State's evidence on the murder charge
was not strong, they both agreed that the evidence in the attempted armed robbery
case was stronger. The State had considerable leverage against Petitioner since both
charges were eligible for a mandatory LWOP sentence. The State only needed a
conviction on one of the charges to invoke the mandatory life sentence. As the U.S.
Supreme Court stated in Premo v. Moore,

"Plea bargains are the result of complex negotiations
suffused with uncertainty, and defense attorneys must
make careful strategic choices in balancing opportunities
and risks. The opportunities, of course, include pleading
to a lesser charge and obtaining a lesser sentence . . . A
risk . . . is that an early plea bargain might come before the
prosecution finds its case is getting weaker, not
stronger[.]"
562 U.S. 115, 124-25 (2011).

We find Petitioner had a valid, strategic reason to plead to the murder and avoid a
mandatory life sentence. Petitioner has failed to demonstrate "a reasonable
probability that, but for counsel's errors, he would not have pleaded guilty and would
have insisted on going to trial." Hill, 474 U.S. at 59.

CONCLUSION

We find Petitioner failed to show how he was prejudiced by any shortcomings in the
reconstructed record. We further find Petitioner failed to meet his burden of showing
Plea Counsel was ineffective in not requesting a competency evaluation prior to the
plea. Finally, we find Petitioner has failed to meet his burden of showing Petitioner
would not have pled guilty but for Plea Counsel's alleged failure to explain his rights,
the weaknesses of the State's case, and the discovery. Based on the foregoing, the
findings of the PCR court are affirmed.

AFFIRMED.

THOMAS, HEWITT, and CURTIS, JJ., concur.

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

Herbert Smalls, Petitioner,

v.

State of South Carolina, Respondent.

Appellate Case No. 2022-001151

Appeal From Charleston County
Clifton Newman, Circuit Court Judge

Unpublished Opinion No. 2025-UP-306
Heard May 6, 2025 – Filed September 3, 2025

AFFIRMED

Elizabeth Anne Franklin-Best, of Elizabeth
Franklin-Best, P.C., of Columbia, for Petitioner.

Attorney General Alan McCrory Wilson and Assistant
Attorney General Joshua Abraham Edwards, both of
Columbia, for Respondent.

PER CURIAM: In this post-conviction relief (PCR) action, Petitioner Herbert
Smalls argues the PCR court erred in finding the record of the plea hearing
sufficiently reconstructed so as to allow for meaningful appellate review, and in
finding Plea Counsel was not ineffective. We affirm.
BACKGROUND/FACTS

On April 25, 2007, police responded to reports of a shooting on Rivers Avenue in
Charleston and found James Stewart lying on the ground with a gunshot wound to
his upper chest. Stewart died at the scene. Stewart's ex-wife was with him at the
time of the shooting and told police the two were walking down the street with their
bike when two men approached them. One of the men pulled out a gun, shot Stewart
in the chest at close range, and then left the scene on the Stewarts' bike. Stewart's
ex-wife gave police a description of the two men, and police obtained a video from
a nearby school showing the two men as they approached the area.

In May of 2007, Petitioner and his co-defendant were arrested in connection with an
unrelated attempted armed robbery in Charleston. When questioned, his
co-defendant gave a statement to law enforcement implicating himself and Petitioner
in Stewart's murder. Petitioner was arrested for the murder on June 9, 2007, and
held without bond. Police had originally arrested another man for the murder but
dismissed the charges against him when they learned the man had been incarcerated
at the time of the murder. Because of Petitioner's 1997 convictions for armed
robbery and assault and battery with intent to kill, the State served him with notice
of its intent to seek a sentence of life without the possibility of parole (LWOP) for
both pending charges.
Petitioner was represented by attorney David Holton (Plea Counsel) on the murder
charge, and attorney Alex Apostolou on the attempted armed robbery charge. On
August 2, 2010, Petitioner pled guilty to murder in exchange for the State's
agreement to dismiss the pending attempted armed robbery charge, to withdraw the
LWOP notice, and to allow him to plead "straight up." Petitioner was sentenced to
forty years. Plea Counsel filed a timely notice of appeal on Petitioner's behalf, which
was summarily dismissed on error preservation grounds on November 8, 2010.

Petitioner filed an untimely pro se PCR application, which was dismissed by the
circuit court as outside of the statute of limitations.1 Petitioner appealed the
dismissal, arguing for the first time that Plea Counsel was ineffective in failing to
request a competency evaluation prior to his guilty plea. On April 28, 2015, the
supreme court remanded the case for a hearing pursuant to Ferguson v. State, 382
S.C. 615, 677 S.E.2d 600 (2009), to determine whether Petitioner's mental incapacity

1
Petitioner did not file the PCR action until September 20, 2013, more than three
years after entering his guilty plea.
prevented him from filing a timely PCR application. The circuit court conducted a
hearing and determined the statute of limitations should be tolled due to Petitioner's
mental incapacity and granted him a belated evidentiary hearing to address the merits
of his PCR.

Because of the long and tortured procedural history, it was 2018 before PCR Counsel
requested the transcript of the plea hearing and discovered it had been destroyed.2
A reconstruction hearing was convened on February 9, 2021, in front of the original
plea judge. At the end of the hearing, the plea judge issued an order declaring the
record of the plea hearing was sufficiently reconstructed.
An evidentiary hearing on Petitioner's amended application was held on March 22,
2021. Petitioner alleged in his amended petition that the guilty plea was not entered
knowingly and voluntarily because of Petitioner's "diminished intellectual
capabilities." At the evidentiary hearing, PCR Counsel also argued Plea Counsel
was ineffective for failing to inform him of the weakness of the State's case, failing
to review discovery with him, and failing to advise him of the consequences of his
plea. Petitioner claimed his intellectual disabilities and mental health conditions
prevented him from having a full understanding of the consequences of his plea,
rendering his guilty plea unknowing and involuntary. The PCR court denied relief
and dismissed the action with prejudice, finding Petitioner failed to produce any
evidence of the alleged deficiency of Plea Counsel, failed to show that his plea was
entered involuntarily, failed to show he was prejudiced by Plea Counsel's conduct,
and failed to prove that he was incompetent at the time he entered the plea. The PCR
court did not make any ruling regarding the sufficiency of the plea transcript
reconstruction, but noted, "this Court respects [the plea judge's] finding that the plea
transcript was appropriately reconstructed. This Court does not have the authority
to set aside the order of another [circuit court judge]. . . . Accordingly, this is not an
issue before the Court during this PCR proceeding." This appeal followed.
STANDARD OF REVIEW

2
The State did not initially order the transcript of the proceeding because it sought
to summarily dismiss the application as barred by the statute of limitations and did
not believe a transcript was necessary. The circuit court summarily dismissed the
action as untimely. The supreme court remanded the case for a Ferguson hearing in
2015, and the order setting the case for a full evidentiary hearing was entered on
February 2, 2018, which was beyond the five-year retention period for court
reporters under Rule 607(i), SCACR.
"In post-conviction proceedings, the burden of proof is on the [petitioner] to prove
the allegations in his application." Speaks v. State, 377 S.C. 396, 399, 660 S.E.2d
512, 514 (2008). "[An appellate court] gives great deference to the factual findings
of the PCR court and will uphold them if there is any evidence of probative value to
support them." Sellner v. State, 416 S.C. 606, 610, 787 S.E.2d 525, 527 (2016).
"Questions of law are reviewed de novo, and we will reverse the PCR court's
decision when it is controlled by an error of law." Id.

LAW/ANALYSIS

I. Sufficiency Of the Reconstructed Record

Petitioner argues the PCR court erred in finding the record of the plea hearing was
sufficiently reconstructed. We disagree.

Where a transcript has been lost or destroyed, an appellate court may remand to have
the record reconstructed. See Whitehead v. State, 352 S.C. 215, 221, 574 S.E.2d
200, 203 (2002). In South Carolina, as in a majority of jurisdictions, "the inability
to prepare a complete verbatim transcript, in and of itself, does not necessarily
present a sufficient ground for reversal." State v. Ladson, 373 S.C. 320, 324, 644
S.E.2d 271, 273 (Ct. App. 2007) (quoting Smith v. State, 433 A.2d 1143, 1148 (Md.
1981)). The party challenging a reconstructed record must show prejudice flowing
from the inadequate record. Id. "[B]efore a defendant can establish that he is entitled
to a new trial on the basis of an inadequate reconstructed record, he must identify a
specific appellate claim that this court would be unable to review effectively using
the reconstructed record." Id. at 325, 644 S.E.2d at 273 (alteration in original)
(quoting Harris v. Comm'r of Corr., 671 A.2d 359, 363 (Conn. App. Ct. 1996)).
At the reconstruction hearing, the plea judge did not have any recollection of
Petitioner's plea hearing but explained his normal procedure for accepting guilty
pleas. He explained that he uses a checklist and always advises defendants of their
rights when accepting a plea. He detailed his customary plea colloquy and explained
that he always makes a finding regarding whether the plea was made knowingly and
voluntarily. He further explained he would have followed up with additional
questions if there were any issues about Petitioner's medications or mental health
concerns, stating, "obviously, if there was an issue about competency to stand trial
or plead, we wouldn't go any further." He also expressed faith in Plea Counsel's
abilities, stating that he was "an excellent lawyer" who had appeared in front of him
a number of times and "always did a good job."
Julie Cardillo, the assistant solicitor who handled the plea on behalf of the State, also
testified at the reconstruction hearing. She remembered some of the facts of the case,
but did not remember the specifics of the plea hearing. Cardillo appeared before the
plea judge more than fifty times in her nine years with the solicitor's office and
testified to the judge's normal practice in accepting guilty pleas. Based on prior
experience with the judge, she testified he would have stopped the plea if he were
concerned about Petitioner having an intellectual disability or being under the
influence of medications.

Plea Counsel was not present for the reconstruction hearing due to medical issues,
but Defense Counsel Alex Apostolou, who was present at Petitioner's plea hearing,
presented the most detailed testimony at the reconstruction hearing. Apostolou did
not recall any mental health issues being discussed at the plea hearing. He testified
that "if that topic . . . had been opened in the courtroom, it would have been
explored." Apostolou specifically remembered that Petitioner agreed with the
solicitor's recitation of the facts and admitted his guilt. He testified he and Plea
Counsel had previously met with the solicitor and with Petitioner together regarding
the charges, and he would not have allowed the plea to go forward if he felt there
were any issues with Petitioner's competency.
In this case, Petitioner does not allege that the plea judge failed to adequately advise
him of his rights, nor does Petitioner point to any specific issue that cannot
adequately be addressed on appeal due to the transcript's alleged inadequacy.
Petitioner was represented by able Plea Counsel. In addition, the transcript of the
plea hearing is missing through no fault or wrongdoing of the State. Under these
circumstances, we find no error in relying on evidence of the plea judge's "custom
and practice," along with other evidence, to reconstruct the plea hearing, and we
affirm the PCR court's finding that the plea hearing was sufficiently reconstructed.
See, e.g., United States v. DeForest, 946 F.2d 523, 525 (7th Cir. 1991) (citation
omitted) ("The transcript of the guilty plea proceeding must affirmatively disclose
the voluntary and knowing nature of the plea. In the absence of a transcript, the
testimony of the defendant's attorney as to his and the trial court's custom and
practice with respect to guilty pleas is sufficient to demonstrate compliance with
constitutional standards."); United States v. Dickerson, 901 F.2d 579, 583 (7th Cir.
1990) ("Thus, an untranscribed court proceeding does not, in and of itself, require a
holding that a guilty plea was infirm. Instead, we investigate the custom, practice[,]
and law applicable to Illinois guilty pleas and if possible the particular court's
practice to determine whether the plea was an intelligent and voluntary waiver of
Dickerson's rights."); United States v. Dickens, 879 F.2d 410, 411–12 (8th Cir.
1989) ("When a prior conviction is a number of years old and there is no transcript
of the taking of the plea, 'evidence of the trial court's practice is precisely the
evidence which the government will have at its disposal.' (citation omitted) We
previously have recognized the validity of relying on evidence of the custom and
practice of trial attorneys and judges to refute allegations of procedural infirmities.");
Commonwealth v. Quinones, 608 N.E.2d 724, 730 (Mass. 1993) ("We see no
impropriety . . . in relying on a judge's customary practice in taking guilty pleas to
reconstruct the record."). 3

II. Ineffective Assistance of Counsel
Petitioner alleges Plea Counsel was ineffective in that he failed to explain his rights,
the consequences of his plea, and the weakness of the State's case against him. In
addition, Petitioner argues Plea Counsel failed to review the discovery with him even
though Plea Counsel was on notice of Petitioner's "diminished intellectual
capabilities." He argues that his diminished intellectual ability prevented him from
understanding the consequences of his plea and he therefore did not plead guilty
knowingly and voluntarily. The PCR court found that none of the evidence
presented by Petitioner "explains if or how the prior difficulties prevented him from
being able to knowingly and intelligently plead guilty . . . ."

A petitioner alleging his guilty plea was induced by ineffective assistance of counsel
must prove counsel's advice to plead guilty was not "within the range of competence
demanded of attorneys in criminal cases." Hill v. Lockhart, 474 U.S. 52, 56 (1985)

3
This court asked the parties to brief the issue of whether the order finding the record
sufficiently reconstructed was immediately appealable. Both the State and Petitioner
asserted that the order is not immediately appealable and we agree. The legislature
has limited those decisions and orders that are immediately appealable. S.C. Code
Ann. § 14-3-330 (2017). "An order which does not finally end a case or prevent a
final judgment from which a party may seek appellate review usually is considered
an interlocutory order from which no immediate appeal is allowed." Hagood v.
Sommerville, 362 S.C. 191, 195, 607 S.E.2d 707, 709 (2005). While the plea judge's
order effectively denies Petitioner a new trial on the grounds of the insufficiency of
the record, it does not finally end the case or prevent a final judgment from which a
party may seek appellate review.
(quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). The "prejudice" prong
of the Strickland test focuses on "whether counsel's constitutionally ineffective
performance affected the outcome of the plea process." Id. at 59. Specifically, when
a petitioner claims counsel's deficient performance caused him to accept a plea, the
petitioner "must show that there is a reasonable probability that, but for [plea]
counsel's errors, he would not have pleaded guilty and would have insisted on going
to trial." Id. "[A] petitioner must convince the court that a decision to reject the plea
bargain would have been rational under the circumstances." Padilla v. Kentucky, 559
U.S. 356, 372 (2010).
Because "[a] guilty plea is a solemn, judicial admission of the truth of the charges
against an individual[,] . . . a criminal inmate's right to contest the validity of such a
plea is usually, but not invariably, foreclosed." Dalton v. State, 376 S.C. 130, 137,
654 S.E.2d 870, 874 (Ct. App. 2007). Admissions "made during a guilty plea should
be considered conclusive unless [Petitioner] presents valid reasons why he should
be allowed to depart from the truth of his statements." Id. at 137–38, 654 S.E.2d at
874. The societal interest in finality has "special force with respect to convictions
based on guilty pleas." Lee v. United States, 582 U.S. 357, 368–69 (2017) (quoting
United States v. Timmreck, 441 U.S. 780, 784 (1979)).

Due process of law "prohibits the conviction of a person who is mentally
incompetent." Jeter v. State, 308 S.C. 230, 232, 417 S.E.2d 594, 595 (1992). Under
section 44-23-410(A)(1) of the South Carolina Code (2018):
(A) Whenever a judge of the circuit court . . . reason to believe that a
person on trial before him . . . is not fit to stand trial because the person
lacks the capacity to understand the proceedings against him or to assist
in his own defense as a result of a lack of mental capacity, the judge
shall:

(1) order examination of the person by two examiners designated by
the Department of Mental Health if the person is suspected of having a
mental illness or designated by the Department of Disabilities and
Special Needs if the person is suspected of having intellectual disability
or having a related disability or by both sets of examiners if the person
is suspected of having both mental illness and intellectual disability or
a related disability.
If the circuit court "believes the person may be unfit to stand trial, a competency
evaluation is compulsory." State v. Colden, 372 S.C. 428, 441, 641 S.E.2d 912, 920
(Ct. App. 2007). Courts consider three factors in "determining whether further
inquiry into a defendant['s] fitness to stand trial is warranted. . . . [:] (1) evidence of
irrational behavior; (2) demeanor at trial; and (3) prior medical opinion regarding
ability to stand trial." Id. "In some instances, the presence of just one of the factors
may justify further inquiry requiring a mental evaluation." Id. "The defendant bears
the burden of proving his lack of competence by a preponderance of the
evidence. . . ." State v. Weik, 356 S.C. 76, 81, 587 S.E.2d 683, 685 (2002).

During Petitioner's Ferguson hearing, Dr. Leonard Mulbry, a forensic psychiatrist,
testified he evaluated Petitioner to determine whether "his capacity was impaired by
mental illness to such an extent that it would impair his ability to file a timely PCR
action." Dr. Mulbry reviewed Petitioner's school and SCDC records. He reviewed
IQ tests administered when Petitioner was fifteen years old and he evaluated
Petitioner when he was thirty-six years old and had been in SCDC custody for about
six years. He found Petitioner's IQ showed he was between mild and moderately
intellectually disabled. He found Petitioner's "adaptive behavior" was at a
third-grade level and that he did not read or write. He testified Petitioner had been
treated consistently for bipolar disorder while at SCDC. The Ferguson court tolled
the statute of limitations and granted Petitioner a belated PCR, finding Petitioner had
established, to a reasonable degree of medical certainty, that his "intellectual
deficiencies and mood disorder would impair his capacity to recognize deadlines,
execute a legal document, and meet the deadlines for executing the legal
instruments."
At the PCR evidentiary hearing, Petitioner did not offer any expert testimony
regarding either his mental health issues or intellectual disabilities. Dr. Mulbry did
not testify at the evidentiary hearing, and his report was not admitted into evidence.
PCR Counsel seemed to concede Petitioner was competent to enter the guilty plea
and to focus solely on Petitioner's intellectual disabilities, stating:
I don't think we ever alleged that there was competency
[sic] to stand at trial, but I think the issue is whether or not,
you know, my client was able – whether or not he was
getting good advice from his attorney. I mean, I think
there was a difference here about whether or not he was in
a position to just say, all right, I'm going to go ahead and
plea. Versus whether or not he was, you know, there was
some issue about his mental acuity that he would have –
I'm not saying he would have failed a Blair Hearing at
that time. I'm just saying he was under a lot of medication
and he might not have been making the best decisions.
And he might not have been making intelligent decisions,
and he may have been over born by persuasion from his
attorney. 4

Petitioner testified he takes medication for mood swings and was on five different
medications at the time of the PCR hearing. He testified he has been on medications
since he was a little boy. He further testified he had always been in "special ed"
classes in school and had suffered a head fracture as a child. Petitioner claimed he
only saw Plea Counsel two times before the plea hearing, they never discussed the
discovery, and he never saw any of the discovery. He alleged he only knew "a couple
of days before court" that someone else had initially been arrested for the murder.
He further testified he did not know until after he was sentenced that the witness had
been unable to positively identify him. Petitioner also claimed Plea Counsel never
informed him the State made an earlier plea offer for voluntary manslaughter.

Greg Voigt was the assistant solicitor assigned to Petitioner's case. Voigt was
involved in plea negotiations and had prepared the case for trial but was sick on the
day of Petitioner's guilty plea. He testified that the evidence in the murder case was
not particularly strong. In reviewing his file, he did not believe the State conducted
much of an investigation after Petitioner's arrest. Investigators attempted to
interview the victim's ex-wife who witnessed the murder, but she "had a complete
falling out" during the interview and was unable to make an identification. He
believed he may have offered to allow Petitioner to plead to manslaughter because
of the weakness of the State's case, but Petitioner rejected the plea offer. Once the
case was placed on the trial list, the solicitor's policy was to withdraw any previous
plea offers. Though Voigt testified the murder case was not the strongest, Petitioner's
co-defendant was prepared to testify against him. Voigt felt the evidence against
Petitioner in the pending attempted armed robbery case was much stronger than the
evidence in the murder case. Voigt notified Petitioner of the State's intention to seek
an LWOP sentence as to both pending charges. Voigt testified he had the leverage
of the attempted armed robbery case to use against Petitioner in the murder case,
which gave the State "multiple ways we could get him, even without getting a verdict
on the murder case."

4
Even taking the testimony of Dr. Mulbry into consideration, we find no error.
During the Ferguson hearing, Dr. Mulbry offered no testimony as to what
Petitioner's mental state or understanding was at the time he entered the guilty plea
or how Petitioner's intellectual disabilities would have impacted his ability to
understand the consequences of his plea agreement.
Petitioner's claim that his diminished intellectual capacity rendered his plea
involuntary, and that he was not aware of the State's previous offer is contradicted
by the testimony of attorney Alex Apostolou. Apostolou testified that while
Petitioner was not "a very sophisticated defendant," he had no concerns about his
competency. He testified that Petitioner was able to assist in his defense, was able
to understand the nature of the charges against him, and was able to talk through the
"elaborate" discovery materials. Apostolou testified that he would have had
Petitioner evaluated if he had noticed any signs of incompetence. Apostolou
testified he attended a meeting with the solicitor and Petitioner's Plea Counsel, and
they had left the meeting with a plea offer. Apostolou and Plea Counsel then met
with Petitioner with the purpose of communicating the plea offer. In addition,
Petitioner had previously been convicted of two serious crimes, and there was no
evidence or testimony that he had been found incompetent in any prior criminal
proceeding.
Petitioner's own pro se filings, filed prior to entering his guilty plea, show that he
understood very well the weaknesses of the State's evidence against him on the
murder charge and had reviewed the discovery before entering his guilty plea.
Petitioner filed a pro se motion for bond on May 3, 2008, several years prior to
entering a guilty plea. In the motion, Petitioner references the following:
1. another man, Anthony Watley, had been previously charged with the
murder and "Eyewitnesses placed Watley at the scene;"
2. written statements given by Curtis Nathaniel, Derrick Felder, and
Darryl Johnson;
3. the witness Sheila Diane Ramsey gave three different statements to law
enforcement that don't "coincide" and her credibility is suspect due to
her prior criminal convictions and drug use;
4. the inconsistent statements made by his co–defendant Marcus Quarles,
on June 6th and 7th, 2007, and the fact that Quarles "wrote 2 different
statements;" and
5. "The State has no physical evidence to link [Petitioner to the murder]
or to show that he harmed another individual."

Petitioner also wrote a letter to the court on February 2, 2010 (filed Feb. 26, 2010),
where he states, "My co-defendant's statement is unreliable and his credibility is
worth nothing. You know his past criminal history."
These pro se letters and motions, filed some years prior to his plea, show that
Petitioner was aware of the State's evidence, the substance of the witnesses'
statements against him, the lack of physical evidence implicating him, and that the
State previously charged another man with the murder. The information within the
motions and letters could only have come from Petitioner. We find Petitioner's
testimony that Plea Counsel never discussed the case with him wholly lacking in
credibility based on Petitioner's pro se filings.

While both Voigt and Apostolou testified the State's evidence on the murder charge
was not strong, they both agreed that the evidence in the attempted armed robbery
case was stronger. The State had considerable leverage against Petitioner since both
charges were eligible for a mandatory LWOP sentence. The State only needed a
conviction on one of the charges to invoke the mandatory life sentence. As the U.S.
Supreme Court stated in Premo v. Moore,

"Plea bargains are the result of complex negotiations
suffused with uncertainty, and defense attorneys must
make careful strategic choices in balancing opportunities
and risks. The opportunities, of course, include pleading
to a lesser charge and obtaining a lesser sentence . . . A
risk . . . is that an early plea bargain might come before the
prosecution finds its case is getting weaker, not
stronger[.]"
562 U.S. 115, 124-25 (2011).

We find Petitioner had a valid, strategic reason to plead to the murder and avoid a
mandatory life sentence. Petitioner has failed to demonstrate "a reasonable
probability that, but for counsel's errors, he would not have pleaded guilty and would
have insisted on going to trial." Hill, 474 U.S. at 59.

CONCLUSION

We find Petitioner failed to show how he was prejudiced by any shortcomings in the
reconstructed record. We further find Petitioner failed to meet his burden of showing
Plea Counsel was ineffective in not requesting a competency evaluation prior to the
plea. Finally, we find Petitioner has failed to meet his burden of showing Petitioner
would not have pled guilty but for Plea Counsel's alleged failure to explain his rights,
the weaknesses of the State's case, and the discovery. Based on the foregoing, the
findings of the PCR court are affirmed.

AFFIRMED.

THOMAS, HEWITT, and CURTIS, JJ., concur.