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24861 - Brown v. State

Davis Adv. Sh. No. XX
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court

Kenneth H. Brown, Respondent,

v.

State of South Carolina, Petitioner.

ON WRIT OF CERTIORARI

Appeal From Orangeburg County

Daniel E. Martin, Sr., Post-Conviction Judge

Paul M. Burch, Trial Judge

Opinion No. 24861

Submitted October 21, 1998 - Filed November 30, 1998

REVERSED

Robert Pachak, of S.C. Office of Appellate Defense,

of Columbia, for respondent.

Attorney General Charles M. Condon, Chief Deputy

Attorney General John W. McIntosh, Assistant

Deputy Attorney General Teresa A. Knox, all of

Columbia, and Assistant Attorney General Barbara

M. Tiffin, of Greenville, for petitioner.





WALLER, A.J.: We granted a writ of certiorari to review the grant of Post-Conviction Relief

(PCR) to Respondent, Brown. We reverse.



FACTS



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BROWN v. STATE





Brown was convicted of distribution of cocaine and distribution of

cocaine within one-half mile of a school and sentenced to 30 years and 5

years, respectively. The indictment setting forth the proximity charge

indicates Brown distributed cocaine within one-half mile of the grounds of

Belleville Middle School. At PCR, Brown contended his trial counsel was

ineffective in failing to measure the distance between Belleville Middle School

and the location at which he was alleged to have made the sale, 2190 Russell

Street. Brown contended he had "clocked" the mileage in his vehicle and the

distance was approximately 1 mile on his odometer reading. Two other

witnesses also testified at PCR that they believed Belleville School was more

than one mile from 2190 Russell Street.1 Brown's trial attorney testified at

PCR that he sent his investigator to determine the proximity of the school,

and the investigator reported to him that 2190 Russell Street was within one-

half mile of the school. It was counsel's belief that proximity was not

measured by odometer readings but was, rather, measured "as the crow flies"

in a straight line.





The PCR court found there was "a substantial question as to the

distance between 2190 Russell Street and the Belleview Middle School."

Accordingly, the court concluded counsel was ineffective in failing to

substantiate the difference between the school and the residence, and that his

deficiency had prejudiced the defense.





ISSUE





Did the PCR court err in finding counsel ineffective?





DISCUSSION





S.C. Code Ann.ยง 44-53-445(A) (Supp. 1997) provides:





It is a separate criminal offense for a person to distribute, sell,

purchase, manufacture, or to unlawfully possess with intent to

distribute, a controlled substance while in, on, or within a

one-half mile radius of the grounds of a public or private

elementary, middle, or secondary school; a public playground or




1One of the witnesses, Brunson Rush, testified "I think it's more than

one mile" from the school to 2190 Russell Street. The other witness, Brown's

father, testified he had checked it "in general" by the odometer and thought

the distance was a bit over a mile, but that he had not made a thorough check.

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BROWN v. STATE





park; a public vocational or trade school or technical educational

center; or a public or private college or university.



"Radius" is defined as "a straight line drawn from the center of a circle or

sphere to any point on its periphery..." NEW WEBSTER'S DICTIONARY

AND THESAURUS, 825 (1993)(Emphasis supplied). Courts addressing the

issue have uniformly held proximity is measured in a straight line, or "as the

crow flies." See Jackson v. State, 582 So.2d 598 (Ala. App. 1991)(shortest

distance between two points, i.e. a "straight line," refers to "as the crow

flies"); Howard v. State, 591 So. 2d 1067 (Fla. App. 1991)(distance from school

is measured, not as the car drives, but "as the crow flies"); Commonwealth

v. Spano, 605 N.E.2d 1241 (Mass. 1993)(holding distance is measured in a

straight line); State v. Ogar, 551 A.2d 1037 (N.J. Super. 1989)(distance

measured "as the crow flies" from outermost boundaries of school grounds);

State v. Vigh, 871P.2d 1030 (Utah App. 1994)(distance measured in a

straight line rather than by pedestrian travel route); State v. Wimbs, 874

P.2d 193 (Wash. App. 1994). We agree with these courts that the only way

to uniformly measure the distance between a school, church or other

protected location and the location where illegal drugs were sold is to do so

in a straight line.





In a post-conviction proceeding, the burden is on the applicant to prove

the allegations in his application. Butler v. State, 286 S.C. 441, 334 S.E.2d

813 (1985), cert. denied, 474 U.S. 1094, 106 S.Ct. 869, 88 L.Ed.2d 908 (1986).

As to allegations of ineffective assistance of counsel, the applicant must show

his counsel's performance fell below an objective standard of reasonableness,

and but for counsel's errors, there is a reasonable probability the result at

trial would have been different. Strickland v. Washington, 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984); Johnson v. State, 325 S.C. 182, 480 S.E.2d

733 (1997). A reasonable probability is a probability sufficient to undermine

confidence in the outcome of the trial. Johnson v. State, supra. This Court

must affirm the findings of the PCR judge if they are supported by any

evidence in the record. Cherry v. State, 300 S.C. 115, 386 S.E.2d 624 (1989).







Here, Brown failed to offer any evidence at PCR as to the distance

between Belleville School and 2190 Russell Street as measured in a straight

line. As there is no evidence the distance as measured in a straight line

exceeds one-half mile, the PCR court's findings are not supported by any

evidence. Accordingly, the judgment below is



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BROWN v. STATE



REVERSED.2





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




2The PCR court also ruled Brown was entitled to a new trial on the

distribution charge as it could not determine the impact of the proximity

charge on the distribution conviction. As Brown is not entitled to a new trial

on the proximity charge, he is not entitled to a new trial on the distribution

charge. The PCR court's ruling on this issue is also reversed.



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