Kinard v. State , 418 S.C. 478 ( 2016 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
Maurice C. Kinard, Petitioner,
v.
State of South Carolina, Respondent.
Appellate Case No. 2015-001205
Appeal From Richland County
The Honorable Diane S. Goodstein, Circuit Court Judge
The Honorable Brooks P. Goldsmith, Post-Conviction
Judge
Opinion No. 27687
Submitted November 14, 2016 – Filed December 7, 2016
AFFIRMED
Appellate Defender Kathrine Haggard Hudgins, of the
South Carolina Commission on Indigent Defense,
Division of Appellate Defense, of Columbia, for
Petitioner.
Attorney General Alan M. Wilson and Assistant Attorney
General Jessica Elizabeth Kinard, both of Columbia, for
Respondent.
PER CURIAM: Petitioner seeks a writ of certiorari to review the denial of his
application for post-conviction relief (PCR). We grant the petition for a writ of
certiorari, 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 contends the PCR judge erred in finding plea counsel was not ineffective
in failing to file a notice of appeal on petitioner's behalf. We agree.
Petitioner testified at the PCR hearing that he asked plea counsel, promptly after
sentencing, to file a notice of appeal. Plea counsel testified he could not recall if
petitioner made such a request at the conclusion of the plea proceeding, but
counsel acknowledged he received a letter from petitioner after the time to appeal
had expired. Counsel testified he did not see a reason to appeal.
The PCR judge found plea counsel believed an appeal would be frivolous and
"credibly emphasized" that he and petitioner "worked hard for the plea deal and
received what [c]ounsel testified [w]as a near best case scenario in being able to
plead to voluntary manslaughter." The PCR judge found petitioner was advised by
the plea judge that if he wished to appeal, he would have ten days to do so.
Finally, the PCR judge found petitioner failed to present any evidence showing he
may be prejudiced by the alleged deficiency, as there were no objections made at
the guilty plea proceeding and plea counsel had no reason to file a notice of appeal.
We find the PCR judge applied the wrong standard in evaluating petitioner's
allegation that plea counsel was ineffective in failing to file a notice of appeal after
petitioner requested he do so. The merits of any such appeal, while relevant to an
allegation that counsel failed to advise a defendant of the right to appeal, are not
relevant where a PCR applicant alleges counsel failed to file an appeal after being
asked to do so. Roe v. Flores-Ortega, 528 U.S. 470, 120 S. Ct. 1029, 145 L. Ed. 2d
985 (2000). A lawyer who disregards specific instructions from the defendant to
file a notice of appeal acts in a manner that is professionally unreasonable
regardless of whether the appeal would have had merit. Id., at 477. "[W]hen
counsel's constitutionally deficient performance deprives a defendant of an appeal
that he otherwise would have taken, the defendant has made out a successful
ineffective assistance of counsel claim entitling him to an appeal." Id., at 484. The
defendant need not show that his hypothetical appeal might have had merit, only
that but for counsel's deficient conduct, the defendant would have appealed. Id., at
486.
Because the PCR judge failed to apply the proper standard in evaluating
petitioner's claim, and instead evaluated the claim on the improper basis of whether
the appeal would have been successful, we reverse the finding that plea counsel
was not ineffective in failing to file a notice of appeal and proceed with a review of
petitioner's direct appeal issue. See Hiott v. State, 381 S.C. 622, 674 S.E.2d 491
(2009)(The decision of the PCR judge may be reversed when it is controlled by an
error of law.).
Petitioner's conviction and sentence are affirmed pursuant to Rule 220(B)(1),
SCACR, and the following authorities: Rule 203(d)(1)(B)(iv), SCACR (If the
appeal is from a guilty plea, the appellant must file a written explanation showing
that there is an issue which can be reviewed on appeal. The explanation should
identify the issue(s) to be raised on appeal and the factual basis for the issue(s)
including how the issue(s) was raised below and the ruling of the lower court on
that issue(s). If an issue was not raised to and ruled on by the lower court, the
explanation must include argument and citation to legal authority showing how the
issue can be reviewed on appeal. If the appellant fails to make a sufficient
showing, the notice of appeal may be dismissed.); State v. Johnston, 333 S.C. 459,
462 510 S.E.2d 423, 425 (1999)("[T]his Court has consistently held that a
challenge to sentencing must be raised at trial, or the issue will not be preserved for
appellate review.").
AFFIRMED.
PLEICONES, C.J., BEATTY, KITTREDGE, HEARN and FEW, JJ., concur.