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2010-MO-004 - Heyward 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 Supreme Court

Benjamin Heyward, Petitioner,

v.

State of South Carolina, Respondent.


ON WRIT OF CERTIORARI


Appeal From Charleston County
 Doyet A. Early, III, Circuit Court Judge


Memorandum Opinion No.  2010-MO-004
Submitted January 21, 2010 – March 1, 2010


AFFIRMED


Walter T. Cox, III, Andrea K. St. Amand, and Tiarna Harmon, all of Nelson Mullins Riley & Scarborough, of Columbia, for Petitioner.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliot, and Assistant Attorney General Matthew J. Friedman, all of Columbia, for Respondent.


PER CURIAM:  Benjamin Heyward was convicted of kidnapping and assault with intent to commit criminal sexual conduct (CSC) in the first degree.  Subsequently, the court of appeals reversed Heyward's conviction for assault with intent to commit CSC.  State v. Heyward, 350 S.C. 153, 564 S.E.2d 379 (Ct. App. 2002), cert. denied (Nov. 6, 2002).  Thereafter, Heyward sought post-conviction relief (PCR) from his kidnapping conviction, contending his constitutional rights to due process were violated when trial counsel conceded he was guilty of assault, without prior consultation of this strategy and without his consent.  The PCR court dismissed Heyward's application for PCR, finding:  (1) trial counsel exercised reasonable strategy in conceding that an assault occurred, and (2) Heyward failed to demonstrate prejudice in light of the overwhelming evidence presented against him.  Additionally, the PCR court observed "any deficiency on the part of Trial Counsel in 'professing' Heyward's culpability for ABHAN is of questionable applicability to his conviction for kidnapping." 

We affirm pursuant to Rule 220(b)(1), SCACR, and the following authorities:  Magazine v. State, 361 S.C. 610, 615, 606 S.E.2d 761, 763 (2004) ("This Court gives great deference to the PCR courts findings of fact and conclusions of law."); Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984) (stating in order to establish a claim for ineffective assistance of counsel, the PCR applicant must demonstrate:  (1) counsel's performance was deficient, and (2) the deficient performance prejudiced the applicant); Cherry v. State, 300 S.C. 115, 117-18, 386 S.E.2d 624, 625 (1989) (finding in order to demonstrate prejudice, the PCR applicant must show, but for counsel's error, there is a reasonable probability that the outcome of the proceeding would have been different); Geter v. State, 305 S.C. 365, 367, 409 S.E.2d 344, 346 (1991) (concluding reasonable probability of a different result does not exist where there is overwhelming evidence of guilt).

AFFIRMED.       

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