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2009-MO-007 - Hannah 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


Elijah Hannah, Petitioner,

v.

State of South Carolina, Respondent.


ORIGINAL JURISDICTION


Appeal From Florence County
James E. Brogdon, Jr., Trial Judge
B. Hicks Harwell, Jr., Post-Conviction Relief Judge


Memorandum Opinion No.  2009-MO-007
Submitted December 4, 2008 – February 9, 2009 


AFFIRMED


Reynolds H. Blankenship, Jr., of Columbia, for Petitioner.

Assistant Attorney General Molly R. Crum, of Columbia, for Respondent.


PER CURIAM:  Because of the unusual procedural history of the underlying criminal matter and this post-conviction relief matter, we granted certiorari in our original jurisdiction.[1]  We are presented with both direct appeal and post-conviction relief (PCR) issues.  We dismiss the direct appeal and affirm the PCR judge’s finding based on our standard of review.

As to the direct appeal issues, counsel for petitioner filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967) and a petition to be relieved as counsel.  Petitioner has not filed a pro se response.  After a thorough review of the record pursuant to Anders, we dismiss the direct appeal and grant the petition to be relieved as counsel.

Regarding the sole PCR issue presented related to the service of notice of the State’s intent to seek a sentence of life without parole, we hold there is evidence in the record to support the PCR court’s holding that Petitioner received proper notice.  We affirm pursuant to Rule 220, SCACR and the following authorities:  Pierce v. State, 338 S.C. 139, 144-45, 526 S.E.2d 222, 225 (2000) (“[An appellate court] will uphold the findings of the PCR judge when there is any evidence of probative value to support them.”); Cherry v. State, 300 S.C. 115, 119, 386 S.E.2d 624, 626 (1989) (“The appropriate scope of review of this Court is that ‘any evidence’ of probative value is sufficient to uphold the PCR judge’s findings.”).

Accordingly, in our original jurisdiction, counsel is relieved and the belated direct appeal is dismissed.  We further affirm the denial of post-conviction relief.

AFFIRMED.

TOAL, C.J., WALLER, PLEICONES, BEATTY and KITTREDGE, JJ., concur.


[1] Petitioner was convicted and sentenced to life without parole for the offense of armed robbery, which was his second “most serious offense” under section 17-25-45 of the South Carolina Code (2003).  A direct appeal was not pursued.  Trial counsel’s failure to file a direct appeal led to Petitioner seeking a belated direct review pursuant to White v. State, 263 S.C. 110, 208 S.E.2d 35 (1974) in this post-conviction relief action.  PCR counsel then failed to file a timely notice of appeal from the denial of post-conviction relief.  When the untimely appeal was presented to this Court, we accepted the matter in our original jurisdiction by granting a writ of certiorari rather than delaying the matter further by requiring Petitioner to file a second PCR action and seek belated review under Austin v. State, 305 S.C. 453, 409 S.E.2d 395 (1991).