THE STATE. OF SOUTH CAROLINA
In The Supreme Court
Calvin Nelson Turner, Petitioner,
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
Assistant Appellate Defender Robert M. Pachak, of
S.C. Office of Appellate Defense, of Columbia, for
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
Immediately prior to petitioner's guilty plea, petitioner's probation was
revoked and he was sentenced to serve the 14 years remaining on other prior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sentence when his probation was revoked.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.
Was trial counsel ineffective rendering petitioner's guilty plea involuntary?
Petitioner contends the PCR judge erred in denying him PCR .
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
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.
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
FINNEY, C.J., TOAL, WALLER, and BURNETT, JJ., concur.