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25034 - Southerland v. State

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

THE STATE OF SOUTH CAROLINA

In The Supreme Court

Robert H. Southerland, Petitioner,

v.

The State of South

Carolina, Respondent.

Appeal From Lexington County

Marc H. Westbrook, Circuit Court Judge

Opinion No. 25034

Heard November 2, 1999 - Filed December 13, 1999

AFFIRMED IN PART; REVERSED IN PART

AND REMANDED

Wayne Floyd and William Y. Rast, of West Columbia,

and Diana L. Holt, 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 respondent.







WALLER, A.J.: The Court granted a writ of certiorari to review the denial

of Post-Conviction Relief (PCR) to Petitioner, Robert H. "Bo" Southerland. We

affirm in part, reverse in part, and remand for re-sentencing.

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Southerland v. State





FACTS





This is a capital case. Southerland was convicted of murder, kidnapping,

armed robbery, and forgery. The facts are as follows:1

On the evening of October 5, 1989, Southerland, Tony

Cooper, David Burroughs, and Brenda McLaurin abducted Kim

Quinn from her home and drove her to an isolated pond. Cooper

and Southerland dragged Quinn from Cooper's car and raped her.

Southerland then shot Quinn in the neck, back, and head. Cooper

severed Quinn's hands and feet with an axe. Southerland and

Cooper then covered Quinn's body with gasoline and debris which

they set on fire. The remains of Quinn's body were discovered

three days later.

Southerland's convictions and sentences were affirmed. State v. Southerland,

316 S.C. 377, 447 S.E.2d 862 (1994). Thereafter, the circuit court denied

Southerland's application for PCR.





ISSUE 2

Was appellate counsel ineffective in failing to raise and brief the


1The facts are verbatim from the Court's opinion in State v. Southerland,

316 S.C. 377, 381, 447 S.E.2d 862, 865 (1994), cert. denied 513 U.S. 1166 (1995).





2Southerland's remaining issues are affirmed pursuant to Rule 220(b),

SCACR, and the following authorities: Issue 2- State v. Ford, 334 S.C. 59, 512

S.E.2d 500 (1999); Sumpter v. State, 312 S.C. 221, 439 S.E.2d 842 (1994),(trial

judge's findings regarding purposeful discrimination rest largely on evaluation

of demeanor and credibility, and reviewing court should give the findings great

deference on appeal); Issues 3 and 4- Drayton v. Evatt, 312 S.C. 4, 430 S.E.2d

517 (1993); Solomon v. State, 313 S.C. 526, 443 S.E.2d 540 (1994)(where

matters of credibility are involved, great deference is given to PCR judge's

findings); Grier v. State, 299 S.C. 321, 384 S.E.2d 722 (1989) (if there is any

evidence supporting PCR court's findings, this Court must affirm); Issue 5

McCray v. State, 317 S.C. 557, 455 S.E.2d 686 (1995) (issues not raised in

petition for writ of certiorari are not preserved for review).



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Southerland v. State





issue of the trial court's refusal to instruct the jury that the terms

"life" and "death" are to be understood in their plain and ordinary

meaning?





DISCUSSION



At trial, Southerland requested the trial court instruct the jury

concerning his ineligibility for parole. As an alternative, he requested the

court charge the jury was "to understand each of these sentences in their plain

and ordinary meaning." (Defendant's Request to Charge #7). When the trial

court indicated it would not give Southerland's Request # 7, counsel for

Southerland again asked, if the court refused to charge concerning his parole

ineligibility, whether the court planned to charge "that life imprisonment is to

be understood in its plain and present meaning." The court responded that it

would give a charge pursuant to State v. Norris, if and only if the jury inquired

about parole. Id. After the jury was charged, trial counsel renewed his

objection to the court's failure to give his Request # 7.3





Southerland asserts his appellate counsel was ineffective for failing to

argue on appeal that the trial judge erred in refusing to give a "plain and

ordinary meaning" instruction.4 We agree. Case law clearly holds, regardless

of capital defendant's parole eligibility, he or she is entitled to a plain meaning

charge upon request and that the refusal to give such a request is reversible

error.





This Court first enunciated a "plain meaning" charge in State v. Norris,

285 S.C. 86, 328 S.E.2d 339, 344 (1985). In Norris, the jury in a capital case

inquired whether the defendant would be eligible for parole if sentenced to life

imprisonment. The trial court responded by charging the jury that if the

defendant were sentenced to life, he would be eligible for parole in twenty years.

This Court ruled such a charge violated prior precedent that a jury should be

neither invited nor permitted to speculate upon the possible effects of parole


3 The state strenuously asserts Southerland's request for a "plain

meaning" charge is unpreserved., Given counsel's repeated requests for this

charge, we find the state's contention fatuous. The issue is patently preserved.





4 Appellate counsel failed to raise this issue on appeal, and waited until

one week before oral arguments to move to supplement his appellate brief to

raise this issue; this Court denied his request. App. 3124-25, 3134.



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Southerland v. State





upon a conviction. See State v. Brooks, 271 S.C. 355, 247 S.E.2d 436 (1978);

State v. Butler, 277 S.C. 543, 290 S.E.2d 420 (1982). The Court held that

"[w]hen the issue is raised, the Court should instruct the jury that it shall not

consider parole eligibility in reaching its decision, and that the terms `life

imprisonment' and `death sentence' should be understood in their ordinary and

plain meaning." 285 S.C. at 95, 328 S.E.2d at 344. Accordingly, Norris

established the law to be charged if the jury inquires about parole.





Thereafter, however, in State v. Atkins, 293 S.C. 294, 360 S.E.2d 302

(1987), this Court held, without regard to a jury inquiry concerning parole,

that, "[i]n all death penalty cases which proceed to trial after this opinion is

published, if requested by the defendant, the trial judge shall charge the

jury that the term `life imprisonment' is to be understood in its ordinary and

plain meaning." 293 S.C. at 300, 360 S.E.2d at 305 (emphasis supplied). The

Atkins Court went further to hold that, in all subsequent cases decided

pursuant to the Omnibus Crime Control Act, where the defendant requested,

he was entitled, in lieu of a plain meaning charge, to a charge concerning 20 or

30 year parole eligibility, depending upon the jury's finding of a statutory

aggravating circumstance.







Four years later, a majority of this Court overruled State v. Atkins to the

extent it permitted juries to be informed concerning a capital defendant's parole

eligibility. State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991)(Chandler, A.J.

concurring). Justice Chandler's concurrence reiterated that a State v. Norris

(jury not to consider parole and are to understand life and death in their plain

and ordinary meaning) charge was the proper response to any inquiry

concerning parole eligibility. 305 S.C. at 57, 406 S.E.2d at 322.





Less than four months later, this Court clarified Torrence, stating "in

eliminating the consideration of parole, Torrence leaves intact the defendant's

right upon request for a plain meaning charge." State v. Davis, 306 S.C. 246,

251, 411 S.E.2d 220, 222 (1991). The argument in Davis was that, since the

jury's consideration of parole was eliminated by Torrence, there was no longer

any requirement of a "plain meaning" charge. The Davis Court disagreed,

noting that the parole eligibility charge was an alternative to a plain meaning

charge. The Court stated, "[s]ince State v. Atkins, 293 S.C. 294, 360 S.E.2d 302

(1987), this Court has held that where a capital defendant requests it, a

charge must be given at the sentencing phase that the term life

imprisonment is to be understood in its ordinary and plain meaning.

It is reversible error to refuse such a request." 306 S.C. at 251, 411

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Southerland v. State





S.E.2d at 222 (emphasis supplied). This holding has been repeatedly reaffirmed

by this Court, most recently in State v. Ard, 332 S.C. 370, 505 S.E.2d 328

(1998). See also State v. Simmons,5310 S.C. 439, 427 S.E.2d 175

(1993)(defendant still entitled, upon request, to a plain meaning charge under

State v. Atkins); State v. Williams, 321 S.C. 327, 468 S.E.2d 626 (1996)(if

capital defendant requests it, charge must be given at sentencing phase that life

imprisonment means imprisonment for life); State v. Young, 319 S.C. 33, 459

S.E.2d 84 (1995)(court properly refused defendant's request to charge 30 year

parole eligibility in favor of plain meaning charge).





The above outlined cases clearly hold a defendant is entitled, upon

request, to a plain meaning charge as an alternative to parole information.

Although related to the idea of parole eligibility, a plain meaning charge is

simply not synonymous. On the contrary, the cases uniformly recognize it is

reversible error to refuse a plain meaning charge when requested by the

defendant, without regard to the defendant's parole eligibility or ineligibility.

Accordingly, we find appellate counsel was ineffective in failing to raise this

issue on direct appeal and that Southerland was prejudiced thereby.





A defendant is constitutionally entitled to the effective assistance of

appellate counsel. Evitts v. Lucev, 469 U.S. 387,105 S.Ct. 830, 83 L.Ed.2d 821

(1985) (to be effective appellate counsel must give assistance of such quality as

to make appellate proceedings fair); Thrift v. State,, 302 S.C. 535, 397 S.E.2d

523 (1990)(appellate counsel must provide effective assistance but need not

raise every nonfrivolous issue presented by the record). In deciding a claim of

ineffective assistance of counsel, the focus is on "the fundamental fairness of the

proceeding whose result is being challenged." Strickland v. Washington, 466

U.S. 668, 685, 696,104 S.Ct. 2052, 2063, 2069, 80 L.Ed.2d 674, 692, 699(1984).

First, the burden of proof is upon petitioner to show that counsel's performance

was deficient as measured by the standard of reasonableness under prevailing

professional norms. Second, the petitioner must prove that he or she was

prejudiced by such deficiency to the extent of there being a reasonable

probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different. Strickland v. Washington, supra.

Accord Smith v. State, 309 S.C. 413, 424 S.E.2d 480 (1992).


5Simmons was reversed on other grounds by the United States Supreme

Court in Simmons v. South Carolina, 512 U.S. 154,114 S.C.. 2187,129 L.Ed.2d

133 (1994).

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Southerland v. State





Here, the first element of Strickland is clearly met as the case law of this

state is to the effect that an Atkins plain meaning charge is mandatory, if

requested, and that the failure to give such a charge is reversible error.

Accordingly, counsel was deficient in failing to raise this issue. The PCR court

held, however, that Southerland failed to demonstrate prejudice. We disagree.





The standard established by Strickland is that the defendant must

establish by a reasonable probability that the result of the proceeding would

have been different. Strickland, supra; Evitts v. Lucey, supra; State v. Smith,

309 S.C. 413, 424 S.E.2d 480, 481 (1992) (petitioner must prove there is "a

reasonable probability that, but for counsel's unprofessional errors, the result

of the proceeding would have been different"). See also People v. Griffin, 687

N.E.2d 820 (Ill. 1997) (defendant who contends appellate counsel rendered

ineffective assistance, e.g., by failing to argue issue, must show that failure to

raise issue was objectively unreasonable and that, but for this failure,

defendant's conviction or sentence would have reversed).6





Given that each of this Court's cases have held it is reversible error to fail

to give an Atkins charge if requested, it is patent that if counsel had raised the

issue on direct appeal, Southerland would have been entitled to a reversal of the

sentencing phase of his conviction. Accordingly, Southerland has met his

burden of demonstrating both that appellate counsel's performance was

deficient and that; but for the deficient performance, the result of his appeal

would have been different. The sentencing phase of his trial is reversed.





CONCLUSION

The sentencing portion of Southerland's trial is reversed and the matter

remanded for a new sentencing proceeding. The remainder of the circuit court's

order is affirmed.

AFFIRMED IN PART; REVERSED IN PART, AND REMANDED.

MOORE, A.C.J., BURNETT, A.J., Acting Associate Justices

James W. Johnson, Jr., and William T. Howell, concur.


6This is analogous to determining ineffective assistance regarding a

guilty plea, i.e., the defendant must show that counsel's ineffective performance

affected the outcome of the plea process. Alexander v. State, 303 S.C. 539, 402

S.E.2d 484 (1991). See also Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88

L.Ed.2d 203 (1985).

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