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2008-MO-017 - Johnson v. State

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Supreme Court


Russell O. Johnson, Petitioner,

v.

State of South Carolina, Respondent.


ON WRIT OF CERTIORARI


Appeal From Orangeburg County
 Diane Schafer Goodstein, Post-Conviction Relief Judge


Memorandum Opinion No.  2008-MO-017
Submitted March 19, 2008 – Filed March 24, 2008 


REVERSED


Deputy Chief Appellate Defender Wanda H. Carter, of South Carolina Commission on Indigent Defense, Division of Appellate Defense, of Columbia, for Petitioner.

Attorney General Henry D. McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General S. Prentiss Counts, of Columbia, for Respondent.


PER CURIAM:  Petitioner pled guilty to armed robbery and first-degree burglary and was sentenced to concurrent terms of eighteen years’ imprisonment.  No direct appeal was taken. 

Petitioner filed an application for post-conviction relief (PCR) alleging he was not advised of his right to a direct appeal.  At the PCR hearing, no testimony was presented on this issue, and the State consented to allowing petitioner to have a belated appeal.  The PCR judge granted petitioner a belated review of his direct appeal issues, finding the uncontroverted evidence showed petitioner was not advised of his right to appeal.  Petitioner now seeks a writ of certiorari to review the PCR judge’s order and has filed a brief addressing his direct appeal issues pursuant to White v. State, 263 S.C. 110, 208 S.E.2d 35 (1974).

“[A]bsent extraordinary circumstances, there is no constitutional requirement that a defendant be informed of a right to a direct appeal from a guilty plea.”  Weathers v. State, 319 S.C. 59, 459 S.E.2d 838 (1995).  Counsel has a duty to advise a defendant about an appeal when there is reason to think either: (1) a rational defendant would want to appeal; or (2) this particular defendant reasonably demonstrated that he was interested in appealing.  Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000).  In determining whether a rational defendant would have desired an appeal, “the court must consider such factors as whether the defendant received the sentence bargained for as a part of the plea and whether the plea expressly reserved or waived some or all appeal rights.”  Flores-Ortega, supra

We find petitioner failed to show he was entitled to be advised of his right to a direct appeal.  Caprood v. State, 338 S.C. 103, 525 S.E.2d 514 (2000).  No objections were made at petitioner’s guilty plea hearing, petitioner received the recommended sentence, and there was no evidence presented at the PCR hearing that petitioner inquired about an appeal.  Flores-Ortega, supra; Weathers, supra.  Accordingly, the PCR judge’s order granting petitioner a belated appeal is

REVERSED.

TOAL, C.J., WALLER, PLEICONES and BEATTY, JJ., concur.  MOORE, J., not participating.