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2009-MO-028 - Barner 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

Rodney A. Barner, Petitioner,

v.

State of South Carolina, Respondent.


ON WRIT OF CERTIORARI


Appeal From Horry County
Steven H. John, Trial Judge
Benjamin H. Culbertson, Post-Conviction Judge


Memorandum Opinion No. 2009-MO-028
Submitted June 10, 2009 – Filed June 15, 2009         


AFFIRMED


Appellate Defender Kathrine H. Hudgins, South Carolina Commission on Indigent Defense, Division of Appellate Defense, 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 Christina J. Catoe, all of Columbia, for Respondent.


PER CURIAM:  Petitioner seeks a writ of certiorari from the denial of his application for post-conviction relief (PCR). 

We deny the petition as to petitioner’s Question 2. 

Because there is sufficient evidence to support the PCR judge’s finding that petitioner did not knowingly and intelligently waive his right to a direct appeal, we grant certiorari on petitioner’s Question 1, dispense with further briefing, and proceed with a review of the direct appeal issue pursuant to Davis v. State, 288 S.C. 290, 342 S.E.2d 60 (1986).

Petitioner’s conviction and sentence are affirmed pursuant to Rule 220(b)(1), SCACR, and the following authorities: State v. Curtis, 356 S.C. 622, 591 S.E.2d 600 (2004) (a contemporaneous objection is required to preserve an error for appellate review); State v. Tucker, 324 S.C. 155, 478 S.E.2d 260 (1996) (where the trial judge denies a motion for mistrial and the defendant refuses the offer for a curative instruction, the defendant waives the issue on appeal); and State v. Garner, 304 S.C. 220, 403 S.E.2d 631 (1991)(an error in the admission of evidence is harmless where there is overwhelming evidence of a defendant’s guilt). 

AFFIRMED.

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