Love v. State

THE STATE OF SOUTH CAROLINA
In The Supreme Court

Korey Lamar Love, Petitioner,

v.

State of South Carolina, Respondent.

Appellate Case No. 2016-002233

ON WRIT OF CERTIORARI

Appeal from Greenville County
Daniel Dewitt Hall, Circuit Court Judge

Opinion No. 27921
Submitted May 15, 2019 – Filed October 2, 2019

REVERSED AND REMANDED

E. Charles Grose Jr., of Grose Law Firm, of Greenwood,
for Petitioner.

Attorney General Alan McCrory Wilson and Assistant
Attorney General Lindsey Ann McCallister, both of
Columbia, for Respondent.

JUSTICE JAMES: In this post-conviction relief (PCR) matter, Korey Lamar Love
moved at the outset of his PCR hearing to amend his application for relief to add
four additional grounds of ineffective assistance of counsel. This appeal centers
upon only one of those additional grounds, specifically that trial counsel was
ineffective for failing to object to a portion of the State's closing argument. The
State objected to the amendments, and the PCR court denied Love's motion to
amend, finding the State would be unfairly prejudiced by allowing Love to amend
his PCR application upon such short notice. We granted Love a writ of certiorari to
address whether the PCR court erred by not allowing him to amend his application
to add the ground concerning the State's closing argument. We reverse the PCR
court's denial of Love's motion to amend to add that one ground, and we remand this
matter to the PCR court and instruct the PCR court to consider the merits of this
additional ground.

FACTUAL AND PROCEDURAL HISTORY

On January 27, 2007, at approximately 1:30 a.m., Isaac Bass (Victim)
completed his shift at the Greenville Wendy's on Pleasantburg Drive and exited the
restaurant through the self-locking back door. Victim was immediately confronted
by an armed assailant, who attempted to rob Victim. Victim called for help, and a
struggle ensued. Victim broke free from the assailant and attempted to run away;
however, the assailant shot Victim in the neck. The assailant and a cohort fled the
scene. Victim got to his feet, walked around the side of the Wendy's, and banged on
the drive-thru window. Because he was shot in the neck, Victim was unable to call
for help. Victim made his way towards the street and flagged down a passing
vehicle. The driver saw Victim on the side of the road and observed two men
sprinting away from the Wendy's. The driver stopped to provide Victim assistance;
however, Victim did not survive.

Because there was no physical evidence linking the case to any suspect, the
case went unsolved for a few years. In 2010, Detective Collis Flavell was assigned
to the case. Detective Flavell informed Victim's parents he was working the case,
and the community soon became involved in raising reward money and asking
people to come forward with information. As a result of these efforts, Detective
Flavell received a tip suggesting law enforcement investigate certain members of the
Love family.

Following an investigation, Korey Love was arrested and indicted for murder,
attempted armed robbery, possession of a weapon during the commission of a
violent crime, and possession of a pistol by a person under the age of eighteen. At
trial, the State's case was built upon the testimony of several people who explained
Love's involvement in Victim's murder. During the State's closing argument, the
State told the jury:

This is your opportunity to do justice in this case under the
oath that you have taken. You can be instruments of
justice for [Victim]. His death was not the final chapter of
his life, this trial is the final chapter of his life.

Trial counsel did not object to this comment. The jury found Love guilty as indicted.
The trial court sentenced Love to concurrent prison terms of fifty years for murder,
twenty years for attempted armed robbery, five years for possession of a weapon
during the commission of a violent crime, and five years for possession of a pistol
by a person under the age of eighteen. The court of appeals dismissed Love's direct
appeal following Anders1 briefing. State v. Love, Op. No. 2014-UP-177 (S.C. Ct.
App. filed Apr. 23, 2014).

Love filed an application for PCR on April 8, 2015, claiming ineffective
assistance of both trial and appellate counsel. A PCR hearing was held on February
17, 2016. As the hearing commenced, Love moved to amend his application to add
four additional grounds of ineffective assistance of counsel. The following exchange
took place:

Love: I have an amended application that I would like to
hand up. It adds some matters that were on the record but
not included in the original application.

The State: Your Honor, we would object to that. Again,
this case has been scheduled for more than a month. I was
handed the amendments this morning.

Love: I've marked this as Applicant's Exhibit Number 4,
at least as a proffer, and I move to be allowed to amend
under the liberal rules of . . . civil procedure that allow
amendments, even amendments during and after the trial
in a civil case.

PCR Court: [Assistant Attorney General], have you seen
the amended application?

The State: About 20 minutes ago for the first time. Yes,
Your Honor. I mean, there's no reason this couldn't have
been emailed to me at any point prior to this morning. I
mean, this is not a surprise. The roster goes out a month
in advance. [PCR counsel] and I discussed before I put the

1
See Anders v. California, 386 U.S. 738 (1967).
roster out the fact that this case would be held in February.
This is not a surprise to anybody.

The fact that I'm being hit with affidavits and phantom
letters and amendments the day of the hearing, if I did this
to opposing counsel, there would be hell to pay. I do not
believe that we should be made to go forward on
amendments that clearly could have been filed prior to this
morning, Your Honor.

PCR Court: Yeah. I'm not going to allow -- I'm not going
to allow the amended application to be considered for
purposes of today when here, at the moment of trial, the
moment of hearing -- or 20 minutes prior is when the
[Assistant] Attorney General just received that and has not
had an opportunity to respond. And so I'm not going to
allow the amended application to be part of this hearing.
All right. What's next?

Love: That's it. I just would -- at the time I would proffer
testimony or proffer parts of the record that relate to the
amendment so I can appeal that ruling, Your Honor.

PCR Court: All right. I'll leave that in your court.

Because the PCR court denied Love's motion to amend, the testimony
primarily focused on the original grounds of ineffective assistance of counsel and
not those contained in the amended application. As part of the proffer noted in the
above exchange, Love questioned trial counsel about his failure to object to an
alleged Golden Rule argument made during the State's closing:

Now, in that same paragraph that we're looking at, the
[State] makes a statement about this is your opportunity to
do justice in this case under the oath that you've taken.
You can be an instrument of justice for [Victim]. His
death was not the final chapter of his life. This trial is the
final chapter of his life. You didn't object to that
statement, did you?

Trial counsel agreed he did not object to this portion of the State's closing argument.
There was no other discussion of this issue during the hearing. At the close of his
case-in-chief, Love moved to amend his application to conform to the evidence
presented during the hearing. The PCR court denied the motion. Love renewed his
motion to amend after the State rested, and the PCR court again denied the motion.

The PCR court denied Love's application for relief in a written order. Of
course, the order did not address the merits of the issues Love raised in his amended
application, but as to the proposed amendments, the order provided, "[Love]
requested to amend the PCR application. [The PCR court] denied the motion,
finding the late amendment did not provide adequate notice to opposing counsel."
The PCR court also denied Love's motion to conform the pleadings to the evidence
presented at the end of the hearing. Love filed a Rule 59(e), SCRCP motion
requesting the PCR court to reconsider its denial of relief and to consider the merits
of his amended grounds. The PCR court denied the motion. We granted Love's
petition for a writ of certiorari to consider the single issue of whether the PCR court
erred in refusing to allow the proposed amendment concerning the State's closing
argument. We denied the petition as to Love's eight other issues.

DISCUSSION

"On review of a PCR court's resolution of procedural questions arising under
the [Uniform] Post-Conviction Procedure Act or the South Carolina Rules of Civil
Procedure, we apply an abuse of discretion standard." Mangal v. State, 421 S.C. 85,
92, 805 S.E.2d 568, 571 (2017). The procedures for applying for PCR are outlined
in the Uniform Post-Conviction Procedure Act (the PCR Act). See S.C. Code Ann.
§§ 17-27-10 to -160 (2014). "An application for relief filed pursuant to [the PCR
Act] must be filed within one year after the entry of a judgment of conviction or
within one year after the sending of the remittitur to the lower court from an appeal
or the filing of the final decision upon an appeal, whichever is later." S.C. Code
Ann. § 17-27-45(A) (2014). "All grounds for relief available to an applicant under
[the PCR Act] must be raised in his original, supplemental or amended application."
S.C. Code Ann. § 17-27-90 (2014). Because applicants are traditionally entitled to
only one "bite at the apple," it is imperative that applicants raise all known issues in
their original, supplemental, or amended applications. "At any time prior to entry of
judgment the court may, when appropriate, issue orders for amendment of the
application or any pleading or motion . . . ." S.C. Code Ann. § 17-27-70(a) (2014).

The South Carolina Rules of Civil Procedure apply in a PCR action to the
extent the rules do not conflict with the PCR Act. See Rule 71.1(a), SCRCP. Rule
15(a), SCRCP, provides, "A party may amend his pleading once as a matter of course
at any time before or within 30 days after a responsive pleading is
served . . . . Otherwise a party may amend his pleading only by leave of court or by
written consent of the adverse party; and leave shall be freely given when justice so
requires and does not prejudice any other party." Rule 15(b) provides in part, "When
issues not raised by the pleadings are tried by express or implied consent of the
parties, they shall be treated in all respects as if they had been raised in the
pleadings." In such an instance, the trial court may allow pleadings to be amended
upon proper motion. Rule 15(b) also provides that "[i]f evidence is objected to at
the trial on the ground that it is not within the issues made by the pleadings, the court
may allow the pleadings to be amended and shall do so freely when the presentation
of the merits of the action will be subserved thereby and the objecting party fails to
satisfy the court that the admission of such evidence would prejudice him in
maintaining his action or defense upon the merits."

"[A trial] court is to freely grant leave to amend when justice requires and
there is no prejudice to any other party." Harvey v. Strickland, 350 S.C. 303, 313,
566 S.E.2d 529, 535 (2002). "The prejudice Rule 15 envisions is a lack of notice
that the new issue is going to be tried, and a lack of opportunity to refute it." Pool
v. Pool, 329 S.C. 324, 328-29, 494 S.E.2d 820, 823 (1998). Essentially, "[a] trial
court has discretion to deny a motion to amend if the party opposing the amendment
can show a valid reason for denying the motion." Skydive Myrtle Beach, Inc. v.
Horry Cty., 426 S.C. 175, 182, 826 S.E.2d 585, 588 (2019).

In Mangal v. State, the applicant prepared and filed his original PCR
application without the assistance of counsel. 421 S.C. 85, 89, 805 S.E.2d 568, 570
(2017). The applicant was appointed counsel and subsequently retained a different
attorney who represented him at his PCR hearing. Id. at 90, 805 S.E.2d at 570. No
written amendment to the applicant's original application was made. Id. During the
hearing, PCR counsel asked trial counsel why he failed to object to "improper
bolstering" testimony given at trial by one of the State's witnesses—an issue that was
not contained in the PCR application—and the State briefly cross-examined trial
counsel on the issue. Id. at 90, 805 S.E.2d at 571. At the end of the hearing, the
applicant argued trial counsel was ineffective in several respects not mentioned in
the PCR application, including his failure to object to the allegedly improper
bolstering. Id. The PCR court denied the applicant relief without addressing the
improper bolstering issue. Id.

We held the PCR court acted within its discretion in refusing to address the
improper bolstering issue. Id. at 92, 805 S.E.2d at 571. We explained: (1) the written
application contained no indication of a claim based on improper bolstering and no
amendment was filed; (2) PCR counsel began the hearing without mentioning
additional claims would be presented; (3) even when questioning trial counsel as to
why he did not object to the testimony, PCR counsel did not inform the PCR court
he would make a claim for ineffective assistance based on trial counsel's failure to
make an objection; and (4) the claim was never made with specificity. Id. at 92-93,
805 S.E.2d at 571-72. We highlighted the fact that the State had no notice the
applicant intended to pursue the claim until the end of the hearing—after all of the
evidence had been presented. Id. at 95, 805 S.E.2d at 573. Recognizing the
importance of the Sixth Amendment's guarantee of effective assistance of counsel,
we noted:

[T]here are situations where the interests of justice require
PCR courts to be flexible with procedural requirements
before PCR applicants suffer procedural default on
substantial claims. Such flexibility is consistent with the
purpose and spirit of our Rules of Civil Procedure. These
considerations should guide PCR courts when struggling
to balance procedural requirements against the importance
of the issues at stake in PCR proceedings. We encourage
trial courts in PCR cases to use the discretion we grant
them on procedural matters to find reasonable ways—
within the flexibility of our Rules—to reach the merits of
substantial issues.

Id. at 99-100, 805 S.E.2d at 575-76 (footnote omitted).

Here, the PCR court summarily concluded the State would be prejudiced by
Love's four proposed amendments because the State received notice of the additional
grounds only twenty minutes before the hearing began. The timing of an applicant's
motion to amend an application is indeed relevant to a consideration of the resulting
prejudice such an amendment would cause the State under Rule 15. However, in
order to properly exercise its discretion under Rule 15, the PCR court should have
separately considered the substance of each proposed amendment and any prejudice
that would result to the State if the amendment were allowed. On the issue of
prejudice, the State argued to the PCR court: (1) the case had been set for hearing
for over a month; (2) PCR counsel could have emailed the State the amendment "at
any point prior to this morning"; (3) if the State had done this to PCR counsel, "there
would be hell to pay"; and (4) the State should not be required to go forward on
amendments that could have been filed "prior to this morning." As noted, the PCR
court denied the motion to amend because it was made too late and the State "has
not had [the] opportunity to respond." Similarly, in its written order, the PCR court
noted the State had not been given adequate notice of the amendments.

We have noted in several cases that "[a]ll applicants are entitled to a full and
fair opportunity to present claims in one PCR application." See Mangal, 421 S.C. at
100, 805 S.E.2d at 576; Robertson v. State, 418 S.C. 505, 513, 795 S.E.2d 29, 33
(2016); Odom v. State, 337 S.C. 256, 261, 523 S.E.2d 753, 755 (1999). We have
also encouraged PCR courts to find ways to address the merits of "substantial issues"
within the flexibility of the Rules of Civil Procedure prior to an applicant suffering
procedural default. See Mangal, 421 S.C. at 99-100, 805 S.E.2d at 575-76. A
separate examination of both the substance of each proposed amendment and
potential prejudice is particularly appropriate in a PCR proceeding. See id. at 99,
805 S.E.2d at 575 (providing "the Sixth Amendment guarantee of effective
assistance of counsel is a 'bedrock principle in our justice system'" (quoting Martinez
v. Ryan, 566 U.S. 1, 12 (2012))); Strickland v. Washington, 466 U.S. 668, 684 (1984)
(recognizing "the Sixth Amendment right to counsel exists, and is needed, in order
to protect the fundamental right to a fair trial"); Johnson v. Zerbst, 304 U.S. 458, 462
(1938) ("The Sixth Amendment stands as a constant admonition that if the
constitutional safeguards it provides be lost, justice will not 'still be done.'").

Many PCR grounds are complex and require extensive preparation on the part
of the State and the applicant. The prejudice of allowing an amendment that includes
a complex issue very shortly before the commencement of a hearing may be
apparent. However, some PCR grounds are not at all complex, and the State's
defense to such claims may be straightforward, even if the ground is one advanced
by the applicant in an amendment close to the time of the hearing. When analyzing
the substance of a proposed amendment and any prejudice the State might suffer, a
PCR court should consider all relevant circumstances, including, but not limited to,
the timing of the motion, the complexity of the new issue, the degree of surprise to
the State, the need for and availability of necessary witnesses to defend against the
claim, and whether the substance of the proposed amendment is readily apparent
from the underlying plea or trial record. The PCR court should consider the relevant
circumstances separately as to each proposed amendment, and after doing so, the
PCR court can properly rule on the motion to amend.

Here, the claim Love sought to add centered upon one passage in the trial
transcript, specifically the solicitor's statement to the jury that "[y]ou can be
instruments of justice for [Victim]. His death was not the final chapter of his life,
this trial is the final chapter of his life." Certainly, the State is well-acquainted with
claims asserted by applicants in PCR cases that solicitors' comments (opening
statements, closing arguments, or otherwise) violate the Golden Rule or are
otherwise improper. The issue advanced by Love in this attempted amendment was
hardly complex and would have required little regrouping on the part of the State to
defend against it. Little to no prejudice would result to the State if this amendment
were granted; indeed, the State's arguments against the proposed amendment were
simply that the amendment was filed too late and that there would "be hell to pay"
if the State had done the same thing. Neither of these arguments articulate the
infliction of prejudice upon the State; therefore, there was no "valid reason for
denying the motion." See Skydive, 426 S.C. at 182, 826 S.E.2d at 588.

In its brief, the State asserts it would have been prejudiced had the amendment
been allowed because the solicitor who made the allegedly offending argument was
out of state on medical leave and therefore unavailable to testify at the PCR hearing.
We note the State did not cite this circumstance at the hearing as an example of the
prejudice it would suffer if the amendment were allowed; even if this circumstance
had been so asserted, we conclude that in this case, the unavailability of the solicitor
is irrelevant to the consideration of whether trial counsel was ineffective for not
objecting to the argument. The solicitor made the supposedly improper comments,
and trial counsel did not object; testimony from the solicitor on the point would have
added nothing probative to the proceeding.

The dissent submits the Golden Rule issue was tried by consent because Love,
without objection from the State, introduced evidence of the solicitor's argument
when presenting his case to the PCR court; thus, the dissent contends, the PCR court
should have granted Love's motion to amend the pleadings to conform to the
evidence pursuant to Rule 15(b), SCRCP ("When issues not raised by the pleadings
are tried by express or implied consent of the parties, they shall be treated in all
respects as if they had been raised in the pleadings."). Ordinarily, the introduction
of evidence in this manner might convince us the issue was tried by implied consent
of the State. However, in this case, when the PCR court denied Love's motion to
amend at the outset of the PCR hearing, the PCR court granted Love's request to
proffer evidence in support of the grounds set forth in the proposed amended
application. Love made this request in an effort to preserve certain issues for appeal;
therefore, evidence on the Golden Rule issue was not presented by Love "by express
or implied consent," but rather was presented in the form of a proffer.

We hold the PCR court erred in refusing to allow Love to amend his
application to include this particular ground for relief. We remand to the PCR court
with instructions to receive evidence and argument and consider this ground on the
merits. The dissent posits a remand is not necessary because it believes the solicitor's
argument was neither violative of due process nor prejudicial to Love, when
considered in the context of the entirety of the solicitor's closing argument. The PCR
court, not this Court, should make the initial factual and legal findings on Love's
claim for relief. Our decision to remand this issue to the PCR court is purely
procedural and should in no way be construed as a suggestion to the PCR court as to
how it should rule on the merits.
CONCLUSION
The PCR court first erred in summarily denying Love's motion to amend
without separately considering each proposed amendment in light of Rule 15(a),
SCRCP. We further hold the PCR court erred in finding the State would be
prejudiced by the granting of the amendment alleging trial counsel was ineffective
for failing to object to the solicitor's comments to the jury. Therefore, we remand
this matter to the PCR court for consideration of whether Love is entitled to relief
on this ground.

REVERSED AND REMANDED.

BEATTY, C.J., and FEW, J., concur. KITTREDGE, J., dissenting in a
separate opinion in which HEARN, J., concurs.
JUSTICE KITTREDGE: I dissent. My preferred disposition would be to
dismiss the writ of certiorari as improvidently granted. Because the majority has
opted for a written decision, I vote to affirm the PCR court in result.

First, I take no issue with the majority's excellent presentation of the law, or the
appropriateness of a remand under normal circumstances. To be sure, Rule 15 of
the South Carolina Rules of Civil Procedure provides for a liberal approach to the
granting of amendments to pleadings. The reality is that this Court has gone even
further in post-conviction relief (PCR) matters due to the practical realities of PCR
litigation. As this Court observed in Mangal v. State,

[T]here are situations where the interests of justice require PCR courts
to be flexible with procedural requirements before PCR applicants
suffer procedural default on substantial claims. . . . We encourage trial
courts in PCR cases to use the discretion we grant them on procedural
matters to find reasonable ways . . . to reach the merits of substantial
issues.

421 S.C. 85, 99–100, 805 S.E.2d 568, 575–76 (2017).

Mangal recognizes the distinctive nature of PCR litigation. For the vast majority
of PCR applications, the applicant is in prison. The inmate complainant begins the
process by completing and filling in the blanks of a standardized application.
Sometimes an attorney is thereafter retained to pursue the inmate's PCR claim, but
in most cases, counsel is appointed. Meaningful access to the imprisoned PCR
applicant is difficult. The helter-skelter docketing of PCR matters for trial places
further constraints on the normal attorney-client relationship. The net result of
these factors has the effect of counsel typically making a last-minute motion to
clean up the applicant's pro se PCR application. A PCR court will generally grant
motions to amend the pro se complaint. If, however, the proposed amendment is
complicated (factually or legally) and would truly prejudice the State, the better
course of action would be to continue the matter and thus remove any possibility of
prejudice resulting from the belated amendments.

Here, the majority correctly recognizes the issue raised by Petitioner's proposed
amendment was simple and straightforward. In addition, evidence was presented
without objection at the PCR hearing on the challenged portion of the State's
closing argument. Petitioner then "move[d] that the application be amended to
conform to [the] evidence per the rules of civil procedure." As the majority
concludes, it was error not to permit the amendment challenging the State's closing
argument as a Golden Rule violation. The error was compounded when the court
likewise denied the motion to conform the pleadings to the evidence.

However, I respectfully disagree that a remand is warranted here. Not only is the
issue underlying the denied amendment straightforward, its resolution is also
straightforward. As a matter of law, the challenged portion of the State's closing
argument does not constitute a Golden Rule argument. Following the multi-day
trial, the State made a lengthy closing argument, from which Petitioner claimed
three sentences were a Golden Rule violation warranting a new trial. In its
entirety, the challenged portion of the closing argument reads:

This is your opportunity to do justice in this case under the oath you
have taken. You can be instruments of justice for Isaac Bass. His
death was not the final chapter of his life, this trial is the final chapter
of his life.

Petitioner devotes much of his brief to the merits of his Golden Rule argument.
After presenting a full argument accompanied by many case citations, the primary
relief requested by Petitioner is for a merits-based ruling granting post-conviction
relief and remanding to the Court of General Sessions for a new trial. Only "in the
alternative" does Petitioner request a remand to the PCR court for additional
consideration of the issue.

Under these circumstances, I would accept Petitioner's invitation to resolve this
appeal on the merits and thus avoid a needless remand. The solicitor's comment to
the jury neither amounted to a denial of due process nor was prejudicial, especially
in the context of the entirety of the closing argument. Petitioner's Golden Rule
argument is similar to the argument addressed in State v. Rice, in which the court
of appeals found no Golden Rule violation where the solicitor "asked the jury to
give the victim's wife peace and the victim justice." State v. Rice, 375 S.C. 302,
333, 336, 652 S.E.2d 409, 424, 426 (Ct. App. 2007), overruled on other grounds
by State v. Byers, 392 S.C. 438, 710 S.E.2d 55 (2011). As in Rice, the solicitor's
closing argument in this case "did not call for the jurors to put themselves in the
victim's place and did not rise to the level of a Golden Rule argument." Id. at 336,
652 S.E.2d at 426. Accordingly, I would find counsel was not deficient in failing
to object.

Because there was no Golden Rule violation, I would affirm the PCR court in
result. I respectfully dissent.

HEARN, J., concurs.