THE STATE OF SOUTH CAROLINA
In The Supreme Court
Herbert Wayne Odom, Petitioner,
State of South Carolina, Respondent.
ON WRIT OF CERTIORARI
Appeal From Sumter County
David F. McInnis, Trial Judge
M. Duane Shuler, Post-Conviction Judge
Opinion No. 25015
Submitted September 22, 1999 - Filed November 15, 1999
REVERSED AND REMANDED
Assistant Appellate Defender M. Anne Pearce, of South
Carolina Office of Appellate Defense, of Columbia, for
Attorney General Charles M. Condon, Chief Deputy
Attorney General John W. McIntosh, Assistant Deputy
Attorney General Teresa A. Knox, and Assistant
Attorney General Howard L. Steinberg, all of Columbia,
TOAL, A. J.: Herbert Wayne Odom ("Odom") appeals the post-conviction
relief court's order of dismissal. We reverse and remand.
On August 31, 1993, Odom was arrested for distributing marijuana to an
undercover officer within a half mile from the Busy Bee Day Care Center in
Sumter County. A jury convicted Odom of one count of distribution on December
19 1993. The presiding judge imposed a five year sentence and a fine of $5,000.
On December 3, 1993, Odom pled guilty to a second count of distribution and the
presiding judge imposed a ten year, concurrent sentence for a third offense.
Legal counsel represented Odom at both the trial and guilty plea. Odom did not
directly appeal either conviction.
On December 18, 1995, Odom filed a pro se post-conviction relief ("PCR")
application alleging ineffective assistance of counsel. The PCR judge summarily
dismissed Odom's application for failing to file within the one-year statute of
Odom's first application for PCR was dismissed prior to the filing of this
Court's opinion in Peloquin on April 15, 1996. In Peloquin this Court held that
PCR applicants convicted before July 1, 1995, the effective date of S.C. Code Ann.
§ 17-27-45 (A), should be allowed to file an application for PCR within one year
after the effective date of the statute. Peloquin, 321 S.C. at 469, 469 S.E.2d at
606. If Odom had appealed the first PCR order dismissing his application, this
Court would have reversed and remanded for an evidentiary hearing pursuant to
Peloquin because Odom was convicted before July 1, 1995, and he filed his first
PCR application before July 1, 1996.
On June 18, 1997, Odom filed a secondpro se PCR application alleging, (1)
ineffective assistance of counsel; and (2) that his first PCR application was
"must be filed within one year after the entry of a judgment of conviction or
within one year after the sending of the remittitur to the lower court from an
appeal or the filing of the final decision upon an appeal, whichever is later."
erroneously dismissed.2 Odom argued he should be permitted to appeal the
dismissal of his first PCR application pursuant to Austin v. State, 305 S.C. 453,
409 S.E.2d 395 (1991). Under Austin, a defendant can appeal a denial of a PCR
application after the statute of limitations has expired if the defendant either
requested and was denied an opportunity to seek appellate review, or did not
knowingly and intelligently waive the right to appeal. Id; see also King v. State,
308 S.C. 348, 417 S.E.2d 868 (1992).
The PCR judge summarily dismissed Odom's second PCR application for
failure to comply with the one-year statute of limitations as mandated by S.C.
Code Ann. § 17-27-45(A) (Supp. 1998) and Peloquin v. State, 321 S.C. 468, 469
S.E.2d 606 (1996). A chronology of significant events in this case is as follows:
(A) December 1, 1993 and December 3, 1993, Odom was
convicted of the drug offenses and did not appeal;
(B) December 18, 1995, Odom filed his first PCR application;
(C) February 9, 1996, the PCR judge summarily dismissed Odom's
first PCR application;
(D) June 18, 1997, Odom filed his second application for PCR;
(E) August 25, 1997, the PCR judge summarily dismissed Odom's
second PCR application;
(F) September 12, 1997, Odom appealed the second summary
Petitioner's application was filed within a year of the
effective date of the statue [sic] and the PCR judge
therefore erred in dismissing petitioneres [sic]
application. Accordingly, the order of the PCR judge
should be reversed and this matter remanded for
This issue, however, is not properly preserved for appeal. Only final
judgments or decisions may be reviewed by this Court in PCR actions. S.C. Code
Ann. § 17-27-100 (1985); Rule 71.1 (f), SCRCP. The PCR judge did not address
this issue in his order and Odom did not Me a Rule 59, SCRCP motion to obtain a
ruling on this issue.
(1) Does Austin v. State, 305 S.C. 453, 409 S.E.2d 395 (1991)
apply when a post-conviction relief applicant was never
(2) Does the statute of limitations for post-conviction relief
applications, S.C. Code Ann. § 17-27-45(A) (Supp. 1998), apply
to applications filed pursuant to Austin v. State?
1. AUSTIN v. STATE
Odom argues the PCR judge erred by summarily dismissing his second
PCR application which asserted a valid claim to an evidentiary hearing on his
right to appellate review under Austin v. State. We agree.
All applicants are entitled to a full and fair opportunity to present claims in
one PCR application. Successive PCR applications and appeals are generally
disfavored because they allow an applicant to receive more than "one bite at the
apple as it were." Matthews v. Evatt, 105 F.3d 907, 916 (1997) (quoting Gamble
v. State, 298 S.C. 176, 379 S.E.2d 118, 119 (t989)). A successive PCR application
is one that raises grounds not raised in a prior application, raises grounds
previously heard and determined, or raises grounds waived in prior proceedings.
Carter v. State, 293 S.C. 528, 362 S.E.2d 20 (1987); see S.C. Code Ann. § 17-27-90
(1976 & Supp. 1997). In order to be entitled to a successive PCR application, the
applicant must establish that the grounds raised in the subsequent application
could not have been raised in the previous application. Tilley v. State, 334 S.C.
24, 511 S.E.2d 689 (1999). Additionally, successive PCR applications are
permitted in rare procedural circumstances. See, e.g., Case v. State, 277 S.C.
4741289 S.E.2d 413 (1982) (allowing a successive PCR application where the
applicant's first PCR application was dismissed without assistance of legal
counsel and without a hearing); Carter v. State, 293 S.C. 528, 362 S.E.2d 20
(1987) (permitting a successive application where the applicant did not have PCR
counsel that differed from his trial counsel).
This Court has allowed successive PCR applications where the applicant
has been denied complete access to the appellate process. Austin v. State, 305
S.C. 453, 409 S.E.2d 395 (1991). Under the PCR rules, an applicant is entitled to
a full adjudication on the merits of the original petition, or "one bite at the
apple." Aice v. State, 305 S.C. 448, 452, 409 S.E.2d 392, 395 (1991). This "bite
includes an applicant's right to appeal the denial of a PCR application, and the
right to assistance of counsel in that appeal. See Aice , 305 S.C. at 448, 409
S.E.2d at 392.
An Austin appeal is used when an applicant is prevented from seeking
appellate review of a denial of his or her PCR application, such as when an
attorney fails to seek timely review. See Aice, 305 S.C. at 448, 409 S.E.2d at 392;
Hope v. State, 328 S.C. 78, 492 S.E.2d 76 n. 1 (1997) (permitting an Austin
appeal where original PCR counsel failed to appeal from the first denial of PCR).
In Austin, the defendant never received a full procedural "bite at the apple"
because he was prevented from seeking any review of the denial of his PCR
application. Aice, 305 S.C. at 452, 409 S.E.2d at 395. As a method of effectuating
the purpose of Rule 7 1. 1 (g) SCRCP 3 and enforcing Austin's entitlement to a PCR
proceeding, this Court held Austin could attack his PCR counsel as ineffective by
a petition for a writ of certiorari. Id.
A PCR applicant is entitled to an Austin appeal if the PCR judge
affirmatively finds either: (1) the applicant requested and was denied an
opportunity to seek appellate review; or (2) the right to appellate review of a
previous PCR order was not knowingly and intelligently waived. See King, 308
S.C. at 348, 417 S.E.2d at 868. If the PCR court finds an applicant was denied his
right to appeal, the applicant can petition for certiorari and this Court will review
whether the petitioner was prejudiced by the failure to obtain appellate review.
Id; see King, 308 S.C. at 349, 417 S.E.2d at 868 (outlining the procedure used to
If an applicant desires to appeal the trial court's
decision and contends he is indigent, the trial court, if
satisfied that he is indigent, shall appoint counsel for
the appeal. Such counsel may be the same counsel who
represented the applicant in the trial court on his
application. If, for good cause shown, appointed
counsel is permitted to withdraw, the trial court shall
appoint new counsel.
seek review pursuant to Austin v. State); Wicker v. State, 310 S.C. 8,425
S.E.2d 25 (1992).
In this case, Odom never received a complete "bite at the apple" because
both of his PCR applications were summarily dismissed before he was appointed
legal counsel. An applicant has a right to an appellate counsel's assistance in
seeking review of the denial of PCR. See Austin, 305 S.C. at 454, 409 S.E.2d at
396; Rule 71.1(g), SCRCP. Under the PCR rules, a court will appoint an attorney
to a PCR applicant if: (1) an evidentiary hearing is required; or (2) the applicant
is indigent and wants to file an appeal. See Whitehead v. State, 310 S.C. 532,
426 S.E.2d 315 (1992); Rule 71.1 (d),(g), SCRCP. Since Odom filed both his PCR
applications pro se, he never received the benefit of an attorney's advice. The
record does not indicate whether Odom was advised of his right to appeal or of
the statute of limitation for an appeal. In order to effectuate an applicant's right
to appeal a PCR dismissal, this Court will require PCR judges to advise pro se
applicants of both their right to appeal, and also their right to appellate counsel
when their PCR applications are summarily dismissed.
Because Odom was entitled to the assistance of appellate counsel during
PCR, we reverse the PCR judge's order of dismissal and remand for an
evidentiary hearing on the issue of whether Odom knowingly and intelligently
waived his right to appellate counsel. Austin, 305 S.C. at 454, 409 S.E.2d at 396.
Odom will be entitled to an Austin appeal if it is determined that he did not
knowingly and intelligently waive his right to appellate counsel. Id. Odom can
then petition for certiorari and this Court will review whether he was prejudiced
by his failure to obtain review of a meritorious issue. Id.
H. STATUTE OF LIMITATIONS
The one-year statute of limitations for PCR applications is not applicable to
appeals filed pursuant to Austin v. State. Under S.C. Code Ann. § 17-2 7-45 (A)
(Supp. 1998) an application for relief must be filed "within one year after the
entry of a judgment or conviction or within one year after the sending of the
remittitur to the lower court from an appeal or the Ming of the final decision upon
an appeal, whichever is later." Austin appeals are considered "belated
appeals" and are used to rectify unjust procedural defects, such as when an
attorney does not Me a timely appeal. See, e.g., Hope v. State, 328 S.C. 78, 492
S.E.2d 76 n. 1 (1997) (permitting a belated appeal pursuant to Austin in 1992
from a denial of a PCR application in 1989).
Odom's Austin appeal is attacking the PCR procedure used in his case,
not the merits of his sentence so the one-year statute of limitations, S.C. Code
Ann. § 17-27-45(A), is not applicable. In this case, Odom claims that he was
denied his right to appeal which was a procedural error preventing his fair "bite"
at the apple. Austin's policy would be frustrated if the one-year statute of
limitation applied to procedural errors made by the PCR courts. Austin is
intended to act as an applicant's final safeguard against unjust procedural
errors, even errors in the application of the statute of limitations. In the instant
case, if we applied the statute of limitations to Odom's Austin appeal, this Court
would be holding a pro se Austin applicant to a one-year statute of limitations
even though the only reason he is filing an Austin appeal is because he was
unaware and uninformed of the statue of limitations that applied to his original
We REVERSE the PCR judge's order and REMAND for a new PCR
hearing. We also recommend that counsel be appointed to Odom for the new
Finney, C.J., Moore, Waller and Burnett, J.J.., concur.