Supreme Court Seal
South Carolina
JUDICIAL DEPARTMENT
Site Map | Feedback
24940 - Stevenson v. State

Shearouse Adv. Sh. No. 16
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court



Leon Stevenson, Petitioner,

v.

State of South

Carolina, Respondent.



ON WRIT OF CERTIORARI



Appeal From Spartanburg County

John C. Hayes, III, Trial Judge

Gary E. Clary, Post-Conviction Judge



Opinion No. 24940



Submitted February 18, 1999 - Filed May 3, 1999



AFFIRMED





Assistant Appellate Defender Robert M. Dudek, of

South Carolina Office of Appellate Defense, of

Columbia, for petitioner.



Attorney General Charles M. Condon, Chief Deputy

Attorney General John W. McIntosh, Assistant

Deputy Attorney General Teresa A. Knox, and

Assistant Attorney General J. Benjamin Aplin,

all of Columbia, for respondent.





BURNETT, A.J.: This Court granted certiorari to review the

denial of petitioner's application for post-conviction relief (PCR). We

affirm.

p.1


STEVENSON v. STATE





FACTS



Petitioner was indicted on two counts of assault and battery

with intent to kill (ABIK) and two counts of resisting arrest under S.C.

Code Ann. § 16-9-320(B) (Supp. 1998). He was convicted of two counts of

assault and battery of a high and aggravated nature (ABHAN) and two

counts of resisting arrest. He was sentenced to imprisonment for ten

years on each count, to be served consecutively. Petitioner's direct appeal

was dismissed pursuant to Rule 220(b)(1), SCACR. State v. Stevenson,

Op. No. 95-MO-359 (S.C. Sup. Ct. filed December 7, 1995).





Petitioner then filed an application for PCR alleging his

convictions and sentences for both resisting arrest and ABHAN constitute

a violation of the Double Jeopardy Clause of the Fifth Amendment of the

United States Constitution and a violation of S.C. Code Ann. § 17-25-50

(1985). Accordingly, petitioner claims trial counsel was ineffective for

failing to object to the dual sentences. During the PCR hearing, trial

counsel admitted he never considered whether "resistance of unlawful [sic]

authority" was included as an element of ABHAN. The PCR judge denied

petitioner's application finding trial counsel was not ineffective because (1)

§ 17-25-50 did not apply;1 (2) trial counsel made a motion for a directed

verdict based on the ground that a conviction for both ABIK and for

resisting arrest violated the Double Jeopardy Clause; and (3) petitioner's

convictions did not violate the Double Jeopardy Clause.2





DISCUSSION





Petitioner contends, because his convictions and sentences for

both resisting arrest under § 16-9-320(B) and ABHAN constitute a

violation of the Double Jeopardy Clause, the PCR judge erred in failing to

find trial counsel was ineffective for not objecting to the dual sentences.


1 Petitioner did not raise this issue on review.

2 The PCR judge analyzed the double jeopardy claim by comparing

the elements of resisting arrest and ABIK because petitioner was indicted

for these offenses. However, petitioner was actually convicted of ABHAN

and resisting arrest. Therefore, these are the two offenses that should

have been compared.

p.2


STEVENSON v. STATE





We disagree.





There is a strong presumption that counsel rendered adequate

assistance and exercised reasonable professional judgment in making all

significant decisions in the case. Strickland v. Washington. 466 U.S. 668,

104 S.Ct. 2025, 80 L.Ed.2d 674 (1984); Cherry v. State, 300 S.C. 115, 386

S.E.2d 624 (1989). In order to prove that counsel was ineffective, the

applicant must show that counsel's performance was deficient and that the

deficient performance prejudiced the defense. Strickland v. Washington,

supra; Thrift v. State, 302 S.C. 535, 397 S.E.2d 523 (1990). To show

prejudice, the applicant must show but for counsel's errors, there is a

reasonable probability the result of the trial would have been different.

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 trial. Strickland v. Washington, supra. This Court will

sustain the PCR judge's factual findings and conclusions regarding

ineffective assistance of counsel if there is any probative evidence to

support those findings. Skeen v. State, 325 S.C. 210, 481 S.E.2d 129

(1997). However, if there is no probative evidence to support the PCR

judge's findings, the findings will not be upheld. Satterwhite v. State, 325

S.C. 254, 481 S.E.2d 709 (1997).





The Double Jeopardy Clause protects against a second

prosecution for the same offense after acquittal or conviction, and protects

against multiple punishments for the same offense. Brown v. Ohio, 432

U.S. 161Y 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); State v. Easler, 327 S.C.

121, 489 S.E.2d 617 (1997). In Blockburger v. United States,3 the United

States Supreme Court held where the same act or transaction constitutes

a violation of two distinct statutory provisions, "the test to determine

whether these are two offenses or only one is whether each provision

requires proof of an additional fact which the other does not."4 284 U.S.

at 304, 52 S.Ct. at 182. The Blockburger "same elements" test is the only


3 284 U.S. 617, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

4 Notwithstanding Blockburger a court may conclude there is no

double jeopardy violation even if the "same elements" test is met where

the legislature clearly intends multiple punishments for a single act. See

Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983);

State v. Wilson, 311 S.C. 382, 429 S.E.2d 453 (1993).

p.3


STEVENSON v. STATE





remaining test for determining a double jeopardy violation in both multiple

punishment and successive prosecution cases. State v. Easler, supra. In

addition to application of the Blockburger test, a court must also consider

whether one offense is a lesser included offense of the other. If the lesser

offense requires no proof beyond that required for the greater offense, the

two are the same offense for purposes of the Double Jeopardy Clause.

Brown v. Ohio. supra.





Petitioner claims under State v. Hollman, 232 S.C. 489J, 102

S.E.2d 873 (1958) his convictions for ABHAN and resisting arrest violate

the prohibition against multiple punishments under the Double Jeopardy

Clause. The Hollman Court held convictions for resisting arrest and

ABHAN constituted a violation of the Double Jeopardy Clause. The Court

stated the assault on the officer was "the essence of, and inseparable from,

the resistance of arrest." In Hollman, the Court went beyond the required

elements of each offense and considered the actual proof offered at trial in

reaching its, decision. Therefore, the Hollman Court did not strictly apply

the Blockburger "same elements" test.5





Under Hollman, petitioner's convictions for resisting arrest and

ABHAN constitute a violation of the Double Jeopardy Clause. In this

case., like Hollman, the assault was inseparable from the resistance of

arrest. Both officers testified petitioner was sitting on a couch when he

was placed under arrest. As one officer grabbed petitioner's left arm and

attempted to handcuff him, petitioner rose from the couch. The other

officer grabbed petitioner's right arm and they all fell over a coffee table.

During this struggle, petitioner managed to get one of the officer's guns

and fire four shots. One officer stated he heard the gun shots as they

were falling. Petitioner shot one officer in the knee and the other in the


5 Other jurisdictions have stated when applying the "same elements"

test, the focus should be on the elements of the offenses and not on their

application to the facts of a specific case. State v. Cook, 916 P.2d 1074

(Ariz. Ct. App. 1995) (the court should focus on the elements of the

offenses); State v. Ford, 634 A.2d 1188 (Conn. Ct. App. 1993) (a court

should compare the statutory elements, not the actual evidence produced

at trial); State v. Henriquez, 485 So.2d 414 (Fla. 1986) (offenses are

separate, if a comparison of the elements, without regard to the facts

alleged in the information or adduced at trial, reveals that each offense

requires proof of an element that the other does not).

p.4


STEVENSON v. STATE





chest. Fortunately, this officer was wearing a bulletproof vest. Petitioner

also shot himself.





However, because the Hollman court applied the incorrect

analysis, we expressly overrule its holding. Instead, under the

Blockburger "same elements" test, convictions for both ABHAN and

resisting arrest do not constitute a double jeopardy violation.





ABHAN requires proof of an unlawful act of violent injury to

the person of another, accompanied by circumstances of aggravation.6

State v. Easler, supra; State v. Jones, 133 S.C. 167, 130 S.E. 747 (1925),

overruled in part on other grounds, State v. Foust, 325 S.C. 12, 479 S.E.2d

50 (1996). The offense of resisting arrest requires proof that a person

knowingly and wilfully assaulted, beat, or wounded a law enforcement

officer during an arrest when the person resisting knew or should have

known the officer was a law enforcement officer. S.C. Code Ann. § 16-9

320(B) (Supp. 1998).





ABHAN requires proof of a circumstance of aggravation which

is not required for resisting arrest. Resisting arrest requires proof that

the person assaulted is a law enforcement officer which is not an element

of ABHAN. Accordingly, because each requires proof of an element the

other does not, neither is a lesser included offense of the other and the

double jeopardy clause is not violated by convicting a defendant of both

offenses.





Petitioner contends this Court should insert the circumstance

of aggravation relied on to support the ABHAN conviction when comparing

the elements of ABHAN with another offense. Therefore, where, as in this

case, the circumstance of aggravation supporting the ABHAN is resisting

lawful authority, the prohibition against double jeopardy is violated.


6 Circumstances of aggravation include the use of a deadly weapon,

the infliction of serious bodily injury, the intent to commit a felony, a

great disparity between the ages and physical conditions of the parties, a

difference in the sexes, indecent liberties or familiarities with a female, the

purposeful infliction of shame and disgrace, resistance of lawful authority,

and others. State v. Easler, supra; State v. Jones, 133 S.C. 167, 130 S.E.

747 (1925), overruled in part on other grounds, State v. Foust, 325 S.C.

12, 479 S.E.2d 50 (1996).

p.5


STEVENSON v. STATE





However, contrary to petitioner's argument, in State v. Easler, the Court

rejected a similar argument concerning ABHAN, where the circumstance of

aggravation was serious bodily injury and felony driving under the

influence causing great bodily injury. The Court stated that a lesser

offense is included in the greater only if each of its elements is always a

necessary element of the greater offense. Accordingly, although serious

bodily injury is an aggravating circumstance, it is not always an element

of ABHAN. Thus, the Court concluded in State v. Easler the double

jeopardy clause was not violated. Under the Easler analysis, there would

also be no double jeopardy violation in this case since resisting lawful

authority is not always a necessary element of ABHAN.





Moreover, in this case, the trial judge's instructions included

other possible aggravating circumstances, including use of a deadly weapon

and infliction of serious bodily injury. Thus, the jury could have based its

ABHAN convictions on these aggravating circumstances. Neither of these

aggravating circumstances would create a double jeopardy violation.





We conclude the PCR judge properly found there was no

double jeopardy violation and trial counsel was not ineffective..

Accordingly, we affirm the denial of petitioner's PCR application.



AFFIRMED.



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

dissenting in separate opinion.

p.6


STEVENSON V. STATE





FINNEY, C.J.: I respectfully dissent. The majority concludes that the

PCR judge properly found there was no double jeopardy violation and trial

counsel was not ineffective. I disagree.







Petitioner was convicted of two counts of assault and battery of a high and

aggravated nature (ABHAN) and two counts of resisting arrest. Petitioner

was sentenced to imprisonment for ten years on each count, to be served

consecutively. Petitioner committed the offenses on April 04, 1993 and was

sentenced June 02, 1994.





Petitioner contends that under State v. Hollman, 232 S.C. 4891 102 S.E.2d

873 (1958) his convictions for ABHAN and resisting arrest violate the

prohibition against multiple punishments under the Double Jeopardy

Clause. I agree. The facts in Hollman are very similar to the facts in this

case.





In Hollman, the appellant was indicted for two counts of resisting an

officer and assault and battery with intent to kill. The jury found the

appellant guilty of resisting an officer and guilty of assault and battery of a

high and aggravated nature. On appeal, this Court held that appellant's

resistance of arrest was in fact ABHAN because the assault on the officer

was the "essence of and inseparate from his resistance of arrest."





Petitioner was convicted of the same offenses as the appellant in Hollman.

The majority acknowledges in its opinion that the assault was inseparable

from the resistance of arrest. However, the majority applies the Blockburger

"same elements" test, and concludes that ABHAN and resisting arrest do not

constitute a double jeopardy violation.





The majority relies on State v. Easler, 327 S.C. 121, 489 S.E.2d 617

(1997) to expressly overrule Hollman. However, the majority disregards and

ignores the fact that at the time of Petitioner's trial in 1994, State v. Easler

had not been decided by this Court. Justice requires that this case be

remanded for resentencing consistent with Hollman.





During the PCR hearing, trial counsel admitted he never considered

whether "resistance of unlawful [sic] authority" was included as an element

of ABHAN. In my opinion, the PCR judge erred in failing to find trial

counsel's representation defective for not objecting to the sentence under

p.7


STEVENSON V. STATE





Hollman. Petitioner was clearly prejudiced because he received four

sentences instead of two. I would therefore find counsel ineffective.



p.8