THE STATE OF SOUTH CAROLINA
In The Supreme Court
Marshall Davis, Petitioner,
State of South Carolina, Respondent.
ON WRIT OF CERTIORARI
Appeal From Colleton County
Gerald C. Smoak, Trial Judge
Jackson V. Gregory, Post-Conviction Judge
Opinion No. 24986
Submitted May 27, 1999 - Filed August 9, 1999
Assistant Appellate Defender Melissa J. Reed Kimbrough,
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 J.
Benjamin Aplin, all of Columbia, for respondent.
TOAL, A.J.: In this post-conviction relief (PCR) matter, Marshall Davis
"Petitioner") asks this Court to review the PCR court's denial of relief.
In June 1995, a jury convicted petitioner on one count of distribution of
crack cocaine. The trial court sentenced petitioner to ten years in prison.
Petitioner's attorney subsequently made a motion for reconsideration and
reduction of the sentence. The trial court denied the motion.
On June 22, 1995, petitioner filed a notice of appeal, which was later
withdrawn on January 24, 1996. On March 25, 1996, petitioner filed an
application for PCR. Petitioner argued his trial counsel had been ineffective.1
The PCR court dismissed the application, finding petitioner's allegation that he
received ineffective assistance of counsel was without merit. We granted
certiorari to address the following issue:
Whether the PCR court erred in ruling that petitioner received
effective assistance of counsel when the trial court in sentencing
petitioner considered petitioner's decision to have a jury trial, and
trial counsel did not object?
SCOPE OF REVIEW
In reviewing a claim of ineffective assistance of counsel, this Court applies
the following two-part test: (1) the applicant must show his or her counsel's
performance fell below an objective standard of reasonableness; and (2) but for
counsel's error, there is a reasonable probability the result of the trial would
have been different. Jackson v. State, 329 S.C. 345~ 495 S.E.2d. 768 (1998)
(applying Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984)). In reviewing the PCR court's decision, this Court is concerned only
with whether there is any evidence of probative value to support that decision.
Cherry v. State, 300 S.C. 115, 386 S.E.2d 624 (1989).
(1) trial counsel did not object to the testimony that petitioner
refused to cooperate with the police after he was arrested;
(2) trial counsel failed to move for a directed verdict of acquittal
on the charge of distribution of crack cocaine; and
(3) trial counsel failed to object when the trial court sentenced
him more harshly for exercising his right to a jury trial.
Petitioner argues that relief should be granted because his trial counsel
failed to object when the trial judge, after sentencing petitioner, indicated he
considered petitioner's decision to have a jury trial as a factor in sentencing.
After the trial court sentenced petitioner, petitioner's attorney2 made a
motion to have the sentence reduced. The following colloquy took place between
the trial court and defense counsel:
[Defense Counsel]: It's for reduction, your honor. Your honor, as
you know Mr. Adams couldn't be here today and he - as Mr. Davis
- he's the one who represented Mr. Davis at trial and throughout
the period since Mr. Davis was sent to us by the clerk of court. Mr.
Adams has asked me to make this motion on Mr. Davis' behalf for
a reduction in the sentence. There was no plea bargain offered.
Mr. Adams, I understand, made several attempts to negotiate a
plea and law enforcement refused. This is the reason that this case
went to trial in the first place. There were two drug dealers who
did plead guilty during the time that your honor has been here with
us this past couple of weeks and they have received lower
sentences. I think one got seven years, J.J. J.J. got seven years
and Dubois got eighteen months and I believe both of those were
[State]: May it please the court, your honor? Cory Fleming from
our office prosecuted the case at trial. I'm familiar with the case.
One reason an offer was never extended in the case was the only
discussion that Mr. Adams ever had with my office was for some
type of probationary sentence and our office didn't agree to that,
and it's accurate in regard to John Paul Thompson and Thomas
Jefferson Dubois as to the sentences that they received.
[Defense Counsel]: Mr. Davis has no prior drug convictions. I
mean, he does have a record, but he has no drug convictions.
motion was made. Instead, Mr. Adams had an assistant public defender stand
in his place to argue the motion.
[Court]: Yes, ma'am, but he didn't plead guilty. Those other two
people, they pled guilty. They admitted what they had done and to
me that's the first step towards rehabilitation is admitting that you
did something wrong and you're pleading guilty and when a fellow
wants a trial which he's entitled to as a matter of law - and that's
[Defense Counsel]: I believe that when Mr. Adams discussed it
with Mr. Branham that Mr. Branham stated the fact that they
wanted to hang him high.
[Court]: Well, the jury found him guilty and I sentenced him and
I'm not going to change my sentence. Thank you very much.
In State v. Hazel, 317 S.C. 368, 453 S.E.2d 879 (1995), this Court held
that a trial judge abuses his discretion in sentencing when he considers the fact
that the defendant exercised his right to a jury trial. In Hazel, the trial judge
gave the following response to the defendant's request for sentencing under the
Youthful Offender Act ("YOA"):
Well, it's one thing, if he'd pled guilty, I'd have considered that, but
taking into consideration the age and where he was and the time
it was, the sentence of the court is you be confined to the State
Board of Corrections for a period of fifteen years and pay a fine of
twenty-five thousand dollars.
Hazel, 317 S.C. at 369, 453 S.E.2d at 879. The Court held that the trial judge
abused his discretion in relying on defendant's exercise of his right to a jury
trial as weighing against sentencing under the YOA.
One of the cases relied on by this Court in Hazel was the North Carolina
Supreme Court opinion in State v. Pavone, 410 S.E.2d 1 (N.C. 199 1). In Pavone,
the trial judge made the following comments when sentencing the defendant:
The jury has found you guilty in a trial. I understand that there
were negotiations with a view toward reaching an agreement with
respect to your verdict and sentencing before the trial that were not
productive, and I understand and appreciate that, but you must
understand that having moved through the jury process and having
been convicted, it is a matter in which you are in a different
Pavone, 410 S.E.2d at 446.
In the instant case, the PCR judge found petitioner's trial counsel was not
ineffective for failing to object to the trial court's comments. The PCR judge
concluded that the trial court's remarks in the transcript were speculative and
could just as easily lead a reasonable person to a contrary conclusion. We
In the above colloquy, defense counsel argued to the trial court that
similarly situated defendants had received lower sentences than petitioner. In
response to this argument, the trial judge unequivocally stated that the other
defendants had, in fact, pled guilty. The trial judge further expressed his
preference for guilty pleas by explaining that such admissions of responsibility
were the first steps toward rehabilitation. We find these statements clearly
revealed that the trial judge, in sentencing petitioner, improperly considered
petitioner's decision to proceed with a jury trial. See Hazel, supra.
Based on the foregoing, we REVERSE the PCR court's denial of relief.
FINNEY, C.J., MOORE, WALLER, and BURNETT, JJ., concur.