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2009-UP-268 - Graham 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 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In the Court of Appeals

Charles P. Graham, Petitioner-Respondent,

v.

State of South Carolina, Respondent-Petitioner.


Appeal From Horry County
Steven H. John, Trial Judge
John L Breeden, Jr., Trial Judge
 Paula H. Thomas, Post-Conviction Relief Judge


Unpublished Opinion No. 2009-UP-268
Submitted May 1, 2009 – Filed June 2, 2009


Affirmed


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

Attorney General Henry D. McMaster, Chief Deputy Attorney John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Christina J. Catoe, all of Columbia, for Respondent-Petitioner. 

PER CURIAM: Charles P. Graham was convicted of distribution of crack cocaine at trial on May 29, 2003 (first trial).  Graham was convicted on a second charge of distribution of crack cocaine at trial on June 25, 2003 (second trial).  Graham did not appeal either conviction or sentence.  Graham filed an application for post-conviction relief (PCR) alleging ineffective assistance of counsel at both trials.[1]  The PCR court found trial counsel was ineffective in Graham's first trial and granted a new trial.  The PCR court denied Graham's application for PCR as to his second trial, but found trial counsel's deficient performance in the first trial influenced the sentencing phase of Graham's second trial and granted a new sentencing hearing. 

Graham seeks a writ of certiorari from the denial of his application for PCR as to his second trial (Question I) and from the grant of a belated appeal (Question II).  The State cross-petitions seeking a writ of certiorari from the PCR court's grant of a new trial for Graham's first trial, and a new sentencing hearing for his second trial (State's Petition).

Because evidence supports the PCR court's finding that Graham did not knowingly and intelligently waive his right to a direct appeal, we grant certiorari on Graham's Question II and proceed with a review of the direct appeal issues pursuant to Davis v. State, 288 S.C. 290, 342 S.E.2d 60 (1986) and White v. State, 263 S.C. 110, 208 S.E.2d 35 (1974).  We deny the petition for certiorari as to Graham's Question I and as to the State's Petition.   

As to Graham's direct appeal issues, we affirm[2] pursuant to Rule 220(b), SCACR, and the following authorities: Humbert v. State, 345 S.C. 332, 337-38, 548 S.E.2d 862, 865 (2001) (finding a "defendant's appearance at trial dressed in jail clothing is not automatically reversible error");  Id. at 337-38 n.4, 548 S.E.2d at 865 n.4 ("[I]n order to obtain a new trial on direct appeal, an objection must be raised at trial."); State v. Haigler, 334 S.C. 623, 629, 515 S.E.2d 88, 91 (1999) ("The burden of persuading the court that a Batson violation has occurred remains at all times on the opponent of the strike.").  

Affirmed.  

HUFF, PIEPER, and GEATHERS, JJ., concur.


[1] Graham retained the same counsel at both trials.

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