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2011-MO-008 - Hayward v. State of SC

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


John W. Hayward, Respondent,

v.

State of South Carolina, Petitioner.


ON WRIT OF CERTIORARI


Appeal From Richland County
James R. Barber, Circuit Court Judge


Memorandum Opinion No.  2011-MO-008
Submitted October 20, 2010 – Filed March 7, 2011 


AFFIRMED IN PART; REVERSED IN PART


Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General Brian T. Petrano, all of Columbia, for Petitioner.

Appellate Defender Elizabeth A. Franklin-Best, of South Carolina Commission on Indigent Defense, of Columbia, for Respondent.


JUSTICE KITTREDGE:  We granted the State's certiorari petition to review an order granting Respondent post-conviction relief (PCR).  We affirm in part and reverse in part.

I.

Respondent faced numerous criminal charges in Richland and Lexington Counties.  Respondent pled guilty in Richland County to the Richland County charges.  Counsel represented Respondent on the Richland County charges but not the Lexington County charges.  At the time of the Richland County guilty plea, Respondent elected to waive grand jury presentment of the Lexington County charges and plead guilty to the Lexington County charges as well.  Respondent was not represented by counsel on the Lexington County charges.  Respondent was sentenced on all charges to 325 years' imprisonment.

Respondent's direct appeal was unsuccessful.  Respondent's subsequent PCR application was successful as the PCR court granted full relief, vacating the guilty pleas in Richland and Lexington Counties.  We granted the State's petition for a writ of certiorari.

II.

Because Respondent was denied his right to counsel concerning the Lexington County charges, we reject the State's challenge to the grant of PCR with respect to the Lexington County charges and affirm pursuant to Rule 220(b)(1), SCACR, and the following authorities: Cherry v. State, 300 S.C. 115, 119, 386 S.E.2d 624, 626 (1989) (applying the "any evidence" standard of review to PCR actions); Stevenson v. State, 337 S.C. 23, 26, 522 S.E.2d 343, 344 (1999) (recognizing that the Sixth Amendment guarantees the right to counsel for criminal defendants); Nance v. Ozmint, 367 S.C. 547, 552, 626 S.E.2d 878, 880 (2006) (observing that prejudice is presumed when an accused is denied counsel at a critical stage).

As for the grant of PCR on the Richland County charges, the State argues that "Respondent did not offer any evidence into how [Richland County] counsel's purported lack of preparation regarding the Lexington County charges prejudiced the handling of the Richland County charges and the PCR Court erred in finding otherwise."  (Br. of Petitioner at 13.)  We agree.  There is no evidence to support the contention of ineffective assistance of counsel in connection with the Richland County charges.  Accordingly, the grant of PCR concerning the Richland County guilty plea and sentences is reversed.  The Richland County convictions and sentences are reinstated.

AFFIRMED IN PART, REVERSED IN PART.

TOAL, C.J. and HEARN, J., concur. PLEICONES, J., concurring in part and dissenting in part in a separate opinion in which BEATTY, J., concurs.

JUSTICE PLEICONES:  I concur in part, and dissent in part.  I agree with the majority that respondent was denied his right to counsel concerning the Lexington County charges.  As to the Richland County charges, however, I would decline to address this issue, as I find the State does not challenge that ruling on certiorari.

The State does not challenge the PCR judge's finding that respondent's guilty plea was a non-severable agreement between respondent and the State and that relief must therefore be granted as a whole.  Accordingly, this finding is the law of the case.  See Ulmer v. Ulmer, 369 S.C. 486, 632 S.E.2d 858 (2006) (as a general rule, an unchallenged ruling, right or wrong, is the law of the case).

Further, while the State challenges the PCR judge's finding that counsel was ineffective, it does not specifically challenge any finding regarding the Richland charges.  Rather, the State's argument focuses on the Richland PD's representation as to the Lexington charges.  The State's one sentence argument, as relied upon by the majority, that respondent failed to show how the Richland PD's ineffective assistance[1] regarding the Lexington charges prejudiced respondent as to the Richland charges is conclusory as it is wholly unsupported by any authority.  In the Matter of the Care and Treatment of McCracken, 346 S.C. 87, 551 S.E.2d 235 (2001) (an issue is deemed abandoned if the argument in the brief is not supported by authority or is only conclusory).  Because the State fails to challenge the PCR judge's findings that relief should be granted as to all of the charges and that the Richland PD was ineffective in his representation as to the Richland charges, I would decline to address whether the Richland PD provided effective assistance of counsel.  Ulmer, supra.

I would uphold the PCR order granting respondent relief on both the Lexington and Richland charges.

BEATTY, J., concurs.


[1] In fact, he provided no assistance at all, save his gratuitous advice to respondent to plead guilty to the Lexington charges in order to avoid LWOP.