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24962 - Turner v. State

Shearouse Adv. Sh. No. 22
S.E. 2d

THE STATE. OF SOUTH CAROLINA

In The Supreme Court

Calvin Nelson Turner, Petitioner,

v.

State of South Carolina, Respondent.

ON WRIT OF CERTIORARI

Appeal From York County

John C. Hayes, III, Judge

Opinion No. 24962

Submitted May 27, 1999 - Filed June 28, 1999

REVERSED

Assistant Appellate Defender Robert M. Pachak, of

S.C. Office of Appellate Defense, of Columbia, for

petitioner.

Attorney General Charles M. Condon, Deputy

Attorney General John W. McIntosh, Assistant

Deputy Attorney General Teresa A. Knox, Assistant

Attorney General Mathew M. McGuire, all of

Columbia, for respondent.







MOORE, A.J.: We granted petitioner a writ of certiorari to

review the denial of his application for post-conviction relief (PCR). We

reverse.

p.28


Turner v. State





FACTS



Immediately prior to petitioner's guilty plea, petitioner's probation was

revoked and he was sentenced to serve the 14 years remaining on other prior

charges.1 This was an error as petitioner had only 7 years remaining on his

sentence when his probation was revoked. Petitioner then pled guilty to

distribution of crack cocaine, two counts of forgery, and failure to stop for a

blue light. He was sentenced to 15 years imprisonment for the distribution

charge, 5 years for each forgery charge, and 3 years for the failure to stop

charge. All sentences were to run concurrently to each other, including the

sentence imposed for the probation revocation. The PCR judge granted

petitioner a new probation revocation hearing but denied petitioner relief for

his guilty plea.





ISSUE



Was trial counsel ineffective rendering petitioner's guilty plea involuntary?





DISCUSSION



Petitioner contends the PCR judge erred in denying him PCR .

agree.





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, 326 S.C. 158, 485

S.E.2d 367 (1997); Satterwhite v. State, 325 S.C. 254, 481 S.E.2d 709 (1997).

The PCR judge in his order held that the principle reason he had to deny

relief was because petitioner failed to carry his burden and show why further

action on the part of trial counsel would have benefitted petitioner or how

there was a reasonable probability that the result would have been better.

We find this was error. The court should have focused on whether petitioner

would have pled guilty had trial counsel accurately informed him of the

situation.




1 Petitioner had previously pled guilty to 3 counts of forgery and had

been sentenced to 7 years on 2 counts and 7 years on the third count

suspended upon the service of 5 years probation, all to run consecutively.

p.29


Turner v. State





We realize that trial counsel along with everyone else was under the

mistaken impression that petitioner had to serve 14 years under the

probation revocation. However, in reality petitioner had only 7 years

remaining under his previous sentence. During guilty plea negotiations,

petitioner was offered a 15-year sentence to run concurrently to the

probation revocation sentence. In essence, petitioner and trial counsel

thought he would then serve only 1 year in addition to the probation

revocation sentence. Petitioner testified he would not have pled guilty to the

15 year concurrent sentence for his most recent charges had he known that

he was subjecting himself to an additional 8 years rather than merely 1 year.





In denying PCR, the PCR judge relied upon trial counsel's testimony

that he would have still advised petitioner to plead guilty. However, the

question is whether petitioner after being correctly informed would have still

pled guilty. He testified he would not have. Thus, petitioner was entitled to

PCR. Alexander v. State, 303 S.C. 539, 402 S.E.2d 484 (1991)(court found

ineffective assistance of counsel when trial counsel misinformed petitioner

and petitioner testified at PCR he would not have pled guilty). Accordingly,

the denial of PCR is



REVERSED.



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

p.30