Jackson v. State ( 2000 )

BURNETT, Justice:

I respectfully dissent. I agree counsel was deficient in failing to advise petitioner threatening a public official was a felony rather than a misdemeanor. However, I disagree with the finding of prejudice based upon testimony of petitioner specifically found not to be credible.

In a PCR proceeding, the burden of proof is on the applicant to prove the allegations in his application. Caprood v. State, 338 S.C. 103, 525 S.E.2d 514 (2000); Rule 71.1(e), SCRCP. Prejudice must be shown by objective evidence. Judge v. State, 321 S.C. 554, 562, 471 S.E.2d 146, 150 (1996). In Judge, we found the petitioner’s mere statement that he would have accepted an offered plea agreement but for counsel’s incompetence to be insufficient to prove prejudice because it was “self-serving and inherently unreliable.” Id. Furthermore, the facts in Judge provided no objective evidence establishing prejudice. Id. at 362-63, 471 S.E.2d at 151.

The majority relies upon Alexander v. State, 303 S.C. 539, 402 S.E.2d 484 (1991), in which we held petitioner had satisfied the prejudice prong when “the only evidence in the record on this point [was] petitioner’s own testimony that had trial counsel not misinformed him that he would face a potential life sentence if he proceeded to trial, he would not have pled guilty.” Alexander is distinguishable from the present ease in that the PCR court made no finding concerning the petitioner’s credibility in that case. Here, the PCR court specifically found petitioner’s testimony was not credible.

The holdings in Alexander and Judge appear to be in conflict. However, I do not read Alexander to require the court to grant PCR to every applicant who claims he would not have pled guilty, regardless of the credibility of the applicant’s claim. Nor do I read Judge, as the majority suggests, to hold that an applicant’s statement is never sufficient evidence to satisfy the prejudice prong. Rather, these cases allow the PCR court, in its discretion, to judge the credibility of each applicant’s claim. See Solomon v. State, 313 S.C. 526, 443 S.E.2d 540 (1994) (where matters of credibility are involved, great deference is given to PCR judge’s findings).

The majority ignores the PCR court’s finding concerning petitioner’s credibility and reverses the PCR court’s denial of relief because “there was no evidence contradicting or conflicting with petitioner’s testimony” he would not have pled nolo contendere had he known the charge was a felony. This ruling in effect shifts the burden of proof from the applicant in a PCR hearing to the State to introduce evidence contradicting the applicant’s self-serving declaration of his state of mind. Because the State has no means to refute petitioner’s testimony of his thought processes, this is precisely the type of case where a PCR judge’s credibility determination is critical. That determination deserves our deference. See id.

The only evidence presented at the PCR hearing was the inherently unreliable, self-serving statement of an applicant the PCR court expressly found not credible. In my opinion, this is the equivalent of no evidence at all. I do not believe there is a reasonable probability petitioner, but for counsel’s errors, would not have pled nolo contendere. I would affirm the PCR court’s denial of relief.