THE STATE OF SOUTH CAROLINA
In The Supreme Court
Leon Stevenson, Petitioner,
State of South
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
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
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
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.
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.
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
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).
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
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).
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
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.
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).
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.
TOAL, MOORE, and WALLER, JJ., concur. FINNEY, C.J.,
dissenting in separate opinion.
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
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
Hollman. Petitioner was clearly prejudiced because he received four
sentences instead of two. I would therefore find counsel ineffective.