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24742 - Gary Moorehead v. State

Davis Adv. Sh. No. 3

S.E. 2d


THE STATE OF SOUTH CAROLINA

In The Supreme Court

 Gary Moorehead, Respondent,

v.

State of South Carolina, Petitioner.
 Appeal From Horry County

Daniel E. Martin, Sr., Judge

 ON WRIT OF CERTIORARI

 Opinion No. 24742

Submitted November 19, 1997 - Filed January 12, 1998

REVERSED

Attorney General Charles Molony Condon, Deputy
Attorney General John W. McIntosh, and Assistant
Deputy Attorney General Teresa A. Knox, all of
Columbia, for petitioner.

Assistant Appellate Defender Lisa T. Gregory, of
S.C. Office of Appellate Defense, of Columbia, for
respondent.

 
 MOORE, A.J.: On advice of counsel, respondent pled guilty to

two separate charges arising from different facts: criminal sexual conduct

(CSC) third degree and unlawful use of telephone. No direct appeal was
 
 

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MOOREHEAD v. STATE
 

taken. We granted the State's petition for a writ of certiorari to review

the grant of post-conviction relief (PCR) and now reverse.
 FACTS

 The following facts were presented at the plea hearing by the

assistant solicitor:
 

     Your Honor, as to the unlawful use of telephone,
[respondent] called the victim, who is his ex, who is his ex-
girlfriend, and harassed and threatened her. One call was
overheard by a Lex Morgan, a police officer, who told
[respondent] not to call anymore, but he continued to call her...

As to the criminal sexual conduct, the victim is Tracey
Gibson, twelve years old. She was riding around with some
friends very late at night on March 4th and went to the home
of Mr. Moorehead's brother, [Terry] Moorehead, to ask if she
could spend the night because she was in trouble with her
mother. She knew Mr. Moorehead's brother, who is deaf. She
had told, at the time when she met Mr. Moorehead, she told
him she was fifteen. He told her she could sleep in his room,
so she went into his room. She fell asleep. When she woke
up, he was also awake. They began kissing, and he took off
her clothes and had sex with her. She was menstruating at
the time. She tells me that it's her understanding that he did
use a condom. Your Honor, she said there was no consent.
Afterwards, she got on the floor, went to sleep, and Mr.
Moorehead slept in the bed. She woke up at seven a.m. and
went home. She told her mother three days later. Mr.
Moorehead, when questioned by the police, said she had never
been in his house; however, she could describe the bedroom.
They did find what appeared to be blood stains on the
mattress and took them to SLED.

DISCUSSION

 1) Sentencing advice on CSC charge

Respondent's sentence on the CSC charge was ten years, suspended

after seven, and five years probation. At the PCR hearing, respondent

testified he pled guilty to the CSC charge on counsel's advice that he
 

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MOOREHEAD v. STATE
 

would receive only probation. He claimed he answered the trial judge's

questions regarding the plea affirmatively because
 

I done what [counsel] told me to do .... He said the judge
knew about all of this and that's how things was done around
here. That's why I told the judge that, hoping that -- well,
knowing that I was going to get probation, I thought, instead
of being sent to the Department of Corrections.

 Counsel, on the other hand, testified he never promised respondent a

straight probationary sentence although they did discuss probation to

follow his active jail time as part of the plea negotiations.
 

The PCR judge found counsel was ineffective for advising respondent

he would receive only probation and that respondent would not have pled

guilty but for this erroneous advice. This was error.
 

When considering an allegation on PCR that a guilty plea was based

on inaccurate advice of counsel, the transcript of the guilty plea hearing

will be considered to determine whether any possible error by counsel was

cured by the information conveyed at the plea hearing. Wolfe v. State,

__S.C.__ 485 S.E.2d 36-1 (1997). At the plea hearing, the trial judge

asked respondent if he understood that the possible sentence for the CSC

charge was ten years and respondent answered that he did. The trial

judge also summarized the plea agreement on the record before accepting

respondent's plea and respondent answered that he understood it. Even if

trial counsel erroneously informed respondent that his sentence would be

probationary, any misconception was cured at the plea hearing.
 

Further, respondent's explanation that he answered the trial judge

affirmatively on counsel's alleged advice that the questions were

meaningless does not support the grant of PCR. Id. (defendant's claim he

understood from counsel that the trial ) judge's questions at the guilty plea

were only a "polite fiction" held not an invitation to answer untruthfully) .
 

We conclude there is no evidence to support the PCR judge's finding

that respondent received ineffective assistance of counsel on this ground.
 2) Failure to investigate

Respondent claimed counsel was ineffective for failing to

independently investigate. He claimed counsel failed to interview
 

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MOOREHEAD v. STATE
 

exculpatory witnesses or the two victims and did not await the results of

SLED DNA testing on the blood from the mattress. The PCR judge found

counsel was ineffective on this ground. This was error.
 

Failure to conduct an independent investigation does not constitute

ineffective assistance of counsel when the allegation is supported only by

mere speculation as to the result. Kibler v. State, 267 S.C. 250, 227

S.E.2d 199 (1976). There is nothing in the record to indicate that

interviewing the victims would have led to any different result.

Respondent admitted the victim of the telephone charge would have

reiterated the same accusation and there is nothing to indicate the CSC

victim would have retracted her version of the facts. Further, there is no

evidence awaiting the DNA test results could have had any impact since

respondent admitted the CSC victim had slept on his mattress as an

explanation for the menstrual blood. Accordingly, there is no evidence to

support the PCR judge's finding that counsel was ineffective for failing to

investigate.CONCLUSION

 A defendant who pleads guilty on the advice of counsel may

collaterally attack the plea only by showing that (1) counsel was ineffective

and (2) there is a reasonable probability that but for counsel's errors, the

defendant would not have pled guilty. Wolfe v. State, __ S.C. __, 485

S.E.2d 367 (1997); Satterwhite v. State, __S.C.__, 481 S.E.2d 709

(1997). Since there is no evidence to support the finding counsel was

ineffective, the PCR judge erred in vacating respondent's plea.
 
 REVERSED.

 FINNEY, C.J., TOAL, WALLER and BURNETT, JJ., concur.
 

p. 44