THE STATE OF
In The Supreme Court
Leroy E. Glaze, Petitioner,
South Carolina, Respondent.
ON WRIT OF CERTIORARI
Gerald C. Smoak, Trial Judge
John M. Milling, Post-Conviction Judge
Opinion No. 26049
Submitted September 22, 2005 - Filed October 17, 2005
Assistant Appellate Defender Robert M. Dudek, of
Columbia, for Petitioner.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Adrianne Turner, all of Columbia, for Respondent.
JUSTICE PLEICONES: We granted a writ of certiorari to review the denial of post-conviction relief (PCR) to Petitioner Leroy E. Glaze (Petitioner). We affirm.
Petitioner pleaded guilty to distribution of crack cocaine. During sentencing, Petitioner’s attorney, the State, and the court agreed that Petitioner’s pleas rendered him a three-time offender, meaning the sentence was subject to enhancement. Petitioner was on probation for a
The trial court first revoked Petitioner’s probation and imposed a five-year sentence for the crack-possession conviction. The trial court also sentenced Petitioner to ten years imprisonment for the crack distribution. The sentences were to run concurrently.
At the PCR hearing, Petitioner argued that trial counsel was ineffective for failing to object to Petitioner’s being sentenced as a three-time offender. Petitioner asserted that his
The basis for Petitioner’s argument was that because the sentence for the
The PCR court held that trial counsel was not ineffective for failing to object to Petitioner’s being sentenced as a three-time offender. The court held that the sentence for the
Whether the PCR court erred in holding that trial counsel was not ineffective for failing to object to the trial court’s sentencing Petitioner as a three-time offender.
“To establish a claim of ineffective assistance of counsel, the PCR applicant must establish that trial counsel's representation fell below an objective standard of reasonableness and that, but for counsel's errors, there is a reasonable probability the result would have been different.” Patterson v. State, 359 S.C. 115, 117, 597 S.E.2d 150, 151 (2004) (citing Strickland v. Washington, 466
In this case, Petitioner does not argue that the PCR court’s factual findings are unsupported by the evidence. Rather, the case turns on a narrow issue of law: whether an indigent defendant convicted of a misdemeanor is unconstitutionally denied the right to counsel if he is sentenced to time served after neither waiving his right to counsel nor being provided counsel by the state. We hold that he is not. Consequently, Petitioner’s time-served sentence was constitutional. Trial counsel had no reason to object to the use of Petitioner’s marijuana conviction as a sentence enhancer, thus counsel’s performance was not deficient.
In Argersinger v. Hamlin, the United States Supreme Court held “that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.” 407
Here, Petitioner argues that he was in fact imprisoned for the uncounseled marijuana conviction. After he was arrested, he was unable to post bail and therefore spent ten days in jail while his trial was pending. According to Petitioner, when he was sentenced to time served, he was actually sentenced to a ten-day term of imprisonment; he had just already served it. Because he was not provided an attorney, Petitioner claims, the time-served sentence was invalid under Scott and it was therefore improper under Nichols for the sentencing judge to consider the marijuana conviction.
Although Petitioner was nominally sentenced to prison for an uncounseled conviction, his time-served sentence was not in violation of Scott. Petitioner’s proposed application of Scott and Nichols would do nothing to prevent uncounseled losses of liberty. For example, if Petitioner had not been sentenced to time served, but rather to a fine, then he would now have no basis for saying that the marijuana conviction was improperly used for sentence enhancement. A fine for an uncounseled misdemeanor conviction is perfectly valid under Scott, so the conviction would have been available as a sentence enhancer under Nichols. Nevertheless, Petitioner still would have spent those ten days in jail.
The proper inquiry under Scott is whether the uncounseled misdemeanor conviction actually resulted in confinement. Compare Nicholson v. State, 761 So.2d 924, 930-31 (Miss. Ct. App. 2000) (holding that a conviction which resulted in a time-served sentence can be used for sentence enhancement), with State v. O’Neill, 140
Petitioner did not receive ineffective assistance of counsel. The denial of PCR is
TOAL, C.J., MOORE, WALLER and BURNETT, JJ., concur.
 For a first offense of crack distribution, a person “must be sentenced to a term of imprisonment of not more than fifteen years and fined not less than twenty-five thousand dollars.” S.C. Code Ann. § 44-53-375(B)(1) (2002). “[F]or a second offense or if, in the case of a first conviction ... the offender has been convicted of any of the laws of the United States or of any state, territory, or district relating to narcotic drugs, marijuana, depressant, stimulant, or hallucinogenic drugs, the offender must be imprisoned for not more than twenty-five years and fined not less than fifty thousand dollars.” S.C. Code Ann. § 44-53-375(B)(2) (2002). “[F]or a third or subsequent offense or if the offender has been convicted two or more times in the aggregate of any violation of the laws of the United States or of any state, territory, or district relating to narcotic drugs, marijuana, depressant, stimulant, or hallucinogenic drugs, the offender must be imprisoned for not more than thirty years and fined not less than one hundred thousand dollars.” S.C. Code Ann. § 44-53-375(B)(3) (2002).
 The right to counsel under the Sixth Amendment to the United States Constitution applies in state courts through the Due Process Clause of the Fourteenth Amendment. U.S. Const. amend. VI; U.S. Const. amend. XIV, § 1; Gideon v. Wainwright, 372