Supreme Court Seal
South Carolina
JUDICIAL DEPARTMENT
Site Map | Feedback
2009-UP-100 - Hook 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 Court of Appeals

Roy Edward Hook, Respondent,

v.

State of South Carolina, Petitioner.


ON WRIT OF CERTIORARI


Appeal From Barnwell County
 Doyet A. Early, III, Post-Conviction Relief Judge


Unpublished Opinion No. 2009-UP-100
Submitted February 2, 2009 – Filed February 26, 2009   


REVERSED


Appellate Defender Elizabeth A. Franklin-Best, of Columbia, for Respondent.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General Lance Boozer, all of Columbia, for Petitioner.

PER CURIAM: In this post-conviction relief (PCR) case, we granted certiorari to review the PCR judge's grant of relief for Roy Edward Hook.  We reverse. [1]

Hook applied for PCR after his five-year probationary sentence was revoked in full.  After a hearing, the PCR judge granted relief, finding Hook's counsel was ineffective for (1) failing to call witnesses on Hook's behalf and (2) failing to object when a probation agent informed the revocation judge of Hook's pending criminal charges.  We find neither ground supports a finding of ineffective assistance of counsel. 

1.  At the PCR hearing, Hook did not proffer the testimony of the witnesses he argues counsel should have called during the probation revocation hearing.  Accordingly, he had failed to show how he was prejudiced by any deficient performance of his revocation counsel.  See Porter v. State, 368 S.C. 378, 386, 629 S.E.2d 353, 358 (2006) ("Mere speculation of what a witness'[s] testimony may be is insufficient to satisfy the burden of showing prejudice in a petition for PCR."); Dempsey v. State, 363 S.C. 365, 369, 610 S.E.2d 812, 814 (2005) (holding a PCR applicant cannot show that he was prejudiced by counsel's failure to call a favorable witness to testify at trial if that witness does not later testify at the PCR hearing or otherwise offer testimony within the rules of evidence); Strickland v. Washington, 466 U.S. 668, 687 (1984) (explaining in order to establish a claim of ineffective assistance of counsel, a PCR applicant must prove: (1) counsel's performance was deficient, and (2) the deficient performance prejudiced the applicant's case). 

2.  When the revocation judge revoked Hook's probation in full, he cited the following grounds: (1) failure to report; (2) conviction for writing fraudulent checks; and (3) failure to follow his probation agent's advice.  Because the charges pending against Hook were not the reason for revoking his probation, Hook again failed to prove the prejudice prong of Strickland v. Washington. 466 U.S. at 687.

REVERSED.

HEARN, C.J., CURETON, A.J., and GOOLSBY, A.J.


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.