THE STATE OF SOUTH CAROLINA
In The Supreme Court
Michael Minor, Respondent,
State of South Carolina, Petitioner.
ON WRIT OF CERTIORARI
Appeal From Horry County
David H. Maring, Trial Judge
J. Michael Baxley, Post-Conviction Judge
Memorandum Opinion No. 2004-MO-019
Submitted March 17, 2004 - Filed April 15, 2004
Daniel T. Stacey, of Columbia, for respondent.
Attorney General Henry D. McMaster, Chief Deputy Attorney General John W. McIntosh, Chief, Capital and Collateral Litigation Donald J. Zelenka, Assistant Deputy Attorney General B. Allen Bullard, all of Columbia, for petitioner.
JUSTICE BURNETT: Respondent Michael Minor (Minor) pled guilty to possession of cocaine. The trial judge sentenced him to imprisonment for two years and a $2,000 fine, suspended to one-year probation and a $500 fine. Concluding trial counsel was ineffective in failing to advise Minor his South Carolina guilty plea would effect a revocation of his Florida parole, the post-conviction relief (PCR) judge granted Minor’s PCR application. We granted the State’s petition for a writ of certiorari. We reverse.
Minor is currently detained in the Madison Correctional Institution in Madison, Florida. On April 16, 1992, he was sentenced to a twenty-two year prison term in Florida for trafficking in stolen property. On March 23, 1993, he was paroled.
In September 1997, Minor was arrested in Maryland on a burglary charge. He posted bail and, after receiving permission from his parole officer, moved to Myrtle Beach, South Carolina, with his wife and family.
On January 25, 1998, Minor was arrested in Horry County and charged with possession of crack cocaine. He was also arrested on a fugitive warrant for the pending Maryland burglary charge. The Maryland charge was later dismissed.
Following Minor’s counseled guilty plea to possession of powder cocaine, he was released to the State of Florida. Under Florida law, a paroled defendant may be required to serve the remainder of a sentence if he violates the terms of his parole. The Florida Parole authorities determined Minor’s South Carolina plea violated his Florida parole and imposed a seventeen-year sentence.
Was plea counsel ineffective in advising Respondent of the effect of his South Carolina guilty plea on his Florida parole?
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. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A defendant who pleads guilty on the advice of counsel may only attack the voluntary and intelligent character of the plea by showing (1) counsel’s representation fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for, counsel’s errors, the defendant would not have pled guilty, but would have gone to trial. Hill v. Lockhart, 474 U.S. 52, 56-57, 106 S.Ct. 366, 369, 88 L.Ed.2d 203, 208 (1985); McCray v. State, 317 S.C. 557, 455 S.E.2d 686 (1995). “A reasonable probability is a probability sufficient to undermine confidence in the outcome” of trial. Id. 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. The PCR judge’s findings will be upheld by this Court when they are supported by any evidence of probative value. Cherry v. State, 300 S.C. 115, 386 S.E.2d 624 (1989). However, the Court will not uphold the findings of the PCR court if no probative evidence supports those findings. Holland v. State, 322 S.C. 111, 470 S.E.2d 378 (1996).
The State contends the PCR judge erred by concluding trial counsel was ineffective because he did not advise Minor his guilty plea would revoke his Florida parole. Specifically, the State relies on a colloquy between the circuit court judge and Minor at the conclusion of the plea. Trial counsel explained to the circuit court judge that Minor “is on hold from Florida and he is aware that this plea will violate his probation down there.” Immediately thereafter, the plea judge asked Minor if he had anything he wanted to say. Minor voiced no concerns or disagreement.
Prior to Minor’s plea, counsel discussed with Minor that a plea in South Carolina would violate Minor’s Florida probation. Therefore, Minor has failed to show error or prejudice, i.e., that counsel’s representation fell below an objective standard of reasonableness and that, but for any error by counsel, he would not have pled guilty, but would have gone to trial. We conclude there is no evidence of probative value in the record supporting the post-conviction court’s findings. Accordingly, we reverse.
TOAL, C.J., MOORE, WALLER and PLEICONES, JJ., concur.