THE STATE OF SOUTH CAROLINA
In The Supreme Court
William D. Catoe,
Director, Department of
Corrections, and Charles
M. Condon, Attorney
General of South
IN OUR ORIGINAL JURISDICTION
Opinion No. 24991
Heard June 23, 1999 - Filed August 23,1999
John H. Blume, of Ithaca, New York; and David P. Voisin,
of Center for Capital Litigation, of Columbia, for petitioner.
Attorney General Charles M. Condon, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General
Donald J. Zelenka, and Senior Assistant Attorney General
William Edgar Salter, III, all of Columbia, for respondents.
David I. Bruck, of Columbia, for amici curiae S.C. Association of
Criminal Defense Lawyers and S.C. Public Defenders Association.
MOORE, A.J.: We have accepted this case in our original
jurisdiction to consider whether our decision in Whetsell v. State, 276 S.C.
295, 277 S.E.2d 891 (1981), procedurally bars collateral review of guilt
phase issues raised by a capital defendant who admits guilt during the
sentencing phase of trial. We hold it does not.
In 1985, petitioner Johnson fatally shot a motorist, Dan Swanson,
with whom he had hitched a ride. Petitioner concealed the body in the
back of the victim's recreational vehicle and continued driving. When
Trooper Bruce Smalls stopped petitioner for driving erratically, petitioner
shot him to death.
In February 1986, petitioner was convicted and sentenced to death in
Jasper County for the murder of Trooper Smalls. This conviction was
reversed on appeal. State v. Johnson 293 S.C. 321, 360 S.E.2d. 317
(1987).1Petitioner was retried and again sentenced to death. This
sentence was upheld on appeal. State v. Johnson, 306 S.C. 119, 410
S.E.2d 547 (1991), cert. denied, 503 U.S. 993 (1992).
Petitioner sought post-conviction relief (PCR) on several grounds. In
its 1994 order, the PCR court addressed petitioner's issues on the merits
and denied relief. On two issues, it ruled in the alternative that relief
was procedurally barred because petitioner had admitted his guilt during
his statement to the jury in the sentencing phase of his trial. The PCR
court cited Whetsell as support for this procedural bar. Petitioner sought
review in this Court but did not challenge the PCR court's Whetsell
ruling. We denied review.
In December 1996, petitioner filed a federal habeas corpus action in
federal district court. The district court concluded petitioner's guilt phase
issues were procedurally barred citing the PCR court's ruling under
Whetsell because this was an adequate and independent state procedural
rule. Further, it found relief should be denied on the substantive issues in
any event. On appeal, a two-judge majority of the Fourth Circuit Court of
Appeals affirmed in an unpublished opinion with one dissenter. Johnson
v. Moore, 1998 WL 708691 (4th Cir. 1998). The majority agreed with the
district court's application of Whetsell and in the alternative affirmed on
robbery for the death of Dan Swanson and was sentenced to life plus twenty
five years. Only the Jasper County conviction is involved in this case.
the merits of the issues raised.
Petitioner then filed this petition for habeas corpus raising the
procedural question whether Whetsell precludes collateral review and
alleging several substantive grounds for relief. We deny relief on the
substantive grounds raised in the petition for habeas corpus2 but accept
consideration of the Whetsell issue because it is an important one in
statewide capital litigation.
Whetsell is a guilty plea case in which PCR was granted on the
ground counsel was ineffective for failing to move to suppress evidence. In
reversing the grant of relief, this Court cited State v. Sroka, 267 S.C. 664,
230 S.E.2d 816 (1976), for the proposition that "review of a trial error is
unnecessary where a defendant admits in open court after his conviction
that he is guilty." 277 S.E.2d at 892: We then concluded: "Here, [the
PCR applicants] not only reiterated their guilt at the post conviction
hearing, but stated they would plead guilty again if granted a new trial."
Id. In the case now before us, the PCR court and the federal courts
agreed with the State that this language in Whetsell bars a capital
the merits by the PCR court and/or the federal courts. Although the
dissenter in the Fourth Circuit opinion complains that petitioner's alleged
Brady violation regarding witness Hess was never addressed, the majority
opinion in fact addresses it. Johnson v. Moore, supra, at 9-10. Moreover, we
agree with the majority's conclusion in that case that the evidence in
question was not material. Johnson admitted his guilt for the murder of
Swanson when he pled guilty to that crime in Clarendon County. In light
of this fact, the Fourth Circuit found:
We cannot believe that a jury Would have found Hess' position
that Johnson was not responsible for the Swansen (sic) murder--a
murder he himself had admitted--to be exculpatory with respect
to Trooper Smalls' murder, especially in view of the fact that the
jury was aware that Hess had changed her story on several
Id. at 10. We agree that petitioner has failed to establish the materiality
required to prove a Brady violation. See United States v. Bagley, 437 U.S.
667 (1985). We decline to revisit petitioner's remaining substantive issues.
defendant who admits his guilt at sentencing from collateral review of
guilt phase errors. This is an incorrect reading of Whetsell.
The operative fact in Whetsell is not the admission of guilt but the
fact that the PCR applicants in that case stated they would plead guilty
again if granted a new trial.3 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). Thus, the PCR applicants in Whetsell could
not prevail on their claims of ineffectiveness because they failed to meet
the second prong, or prejudice prong, of this analysis.
In Craddock v. State, 327 S.C. 303, 491 S.E.2d 251 (1997), we.
specifically rejected the State's contention that Whetsell barred collateral
review. The Craddock case distinguishes Whetsell on the ground Craddock
stated he would not have pled guilty but for counsel's error. Unlike the
applicants in Whetsell, Craddock was therefore able to satisfy the
prejudice prong despite his admission of guilt and, accordingly, Whetsell
did not apply. 491 S.E.2d at 451-52.4
In conclusion, Whetsell does not stand for the proposition that a
defendant who admits his guilt is barred from collaterally attacking his
misplaced since Sroka is a direct appeal employing a harmless error analysis
and not a collateral attack on a conviction.
4The Fourth Circuit majority in Johnson v. Moore, supra, struggled with
Craddock and concluded it was merely a "refinement" of the Whetsell rule in
that it allowed the defendant to collaterally attack his guilty plea because the
alleged error went to the voluntariness of the plea. In fact, a PCR applicant
in such a case must still satisfy the prejudice prong on collateral attack and
Whetsell would still apply. See Gibson v. State, Op. No. 24914 (S.C. Sup. Ct.
filed March 8, 1998); Carter v. State, 329 S.C. 355, 475 S.E.2d 773 (1998)
(PCR applicant challenging voluntariness of plea must show that but for
counsel's error he would not have pled guilty). Craddock simply confirms
that application of Whetsell depends upon whether or not a PCR applicant
has stated he would plead guilty anyway.
conviction. Whetsell stands only for the narrow proposition that a PCR
applicant who has pled guilty on advice of counsel cannot satisfy the
prejudice prong on collateral attack if he states he would have pled guilty
in any event. Accordingly, Whetsell does not bar a capital defendant who
admits his guilt at sentencing from challenging guilt phase errors on
TOAL, WALLER, and BURNETT, JJ., concur. FINNEY, C.J.,
concurring in part and dissenting in part in a separate opinion
FINNEY, C.J.: I respectfully concur in part and dissent in part. I
concur with the majority opinion insofar as it addresses and decides the only
issue before the Court, that Whetsell v. State, 276 S.C. 295, 277 S.E.2d 891
(1981), does not bar collateral review of guilt phase issues when a capital
defendant admits guilt1d during the sentencing phase of his trial. I dissent,
however, from that part of the majority opinion which gratuitously addresses
the merits of petitioner's substantive Brady claim, and incorrectly holds the
suppressed evidence was not material. I would simply omit footnote 2.
hold that petitioner's penalty phase statement was an admission of guilt.
See State v. Johnson, 306 S.C. 119, 410 S.E.2d 547 (1991).