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
Jerry Michael Collins, Petitioner,
State of South Carolina, Respondent.
ON WRIT OF CERTIORARI
Appeal From Greenville County
Edward W. Miller, Post-Conviction Relief Judge
Memorandum Opinion No. 2008-MO-052
Submitted December 4, 2008 – Filed December 15, 2008
Elizabeth A. Franklin, 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 Karen C. Ratigan, all of Columbia, for Respondent.
PER CURIAM: Petitioner was convicted of trafficking in methamphetamines and possession of a firearm. He was sentenced to twenty-five years’ imprisonment for the drug offense, and five years’ imprisonment for the weapon charge, to run concurrently. The Court of Appeals affirmed the convictions and sentences. State v. Collins, Op. No. 2003-UP-131 (S.C. Ct. App. filed Feb. 19, 2003).
On August 18, 2003, petitioner filed his first application for post-conviction relief (PCR). Following a hearing, Judge Patterson filed an order of dismissal. A notice of appeal was not filed. On February 17, 2007, petitioner filed a second PCR application alleging his prior PCR attorney failed to perfect an appeal. Following a hearing, Judge Miller granted petitioner’s request for a belated review of the denial of his first PCR application pursuant to Austin v. State, 305 S.C. 453, 409 S.E.2d 395 (1991). Petitioner now seeks a writ of certiorari to review Judge Miller’s order and has filed a separate brief addressing the Austin issues.
A PCR applicant is entitled to an Austin appeal if the PCR judge finds either that: (1) the applicant requested and was denied an opportunity to seek appellate review; or (2) the right to appellate review was not knowingly and intelligently waived. Odom v. State, 337 S.C. 256, 523 S.E.2d 753 (1999).
We find petitioner failed to show he was entitled to a belated appeal from the denial of his first PCR application. Caprood v. State, 338 S.C. 103, 525 S.E.2d 514 (2000). Petitioner admitted he received a letter from PCR counsel informing him that he had thirty days to file a notice of appeal and that he should contact PCR counsel after reviewing the letter. Petitioner conceded he never contacted PCR counsel and only presumed counsel would file a notice of appeal on his behalf. PCR counsel testified petitioner never indicated he should automatically file a notice of appeal upon receiving an order of dismissal. Therefore, petitioner knowingly and voluntarily waived his right to an appeal. Odom, 337 S.C. 256, 523 S.E.2d 753. Accordingly, the PCR judge’s order granting petitioner a belated appeal is
TOAL, C.J., WALLER, PLEICONES, BEATTY and KITTREDGE, JJ., concur.