Stevenson v. State , 335 S.C. 193 ( 1999 )

FINNEY, Chief Justice:

I respectfully dissent. The majority concludes that the PCR judge properly found there was no double jeopardy violation and trial counsel was not ineffective. I disagree.

Petitioner was convicted of two counts of assault and battery of a high and aggravated nature (ABHAN) and two counts of resisting arrest. Petitioner was sentenced to imprisonment for ten years on each count, to be served consecutively. Petitioner committed the offenses on April 04, 1993 and was sentenced June 02,1994.

Petitioner contends that under State v. Hollman, 232 S.C. 489, 102 S.E.2d 873 (1958) his convictions for ABHAN and resisting arrest violate the prohibition against multiple punishments under the Double Jeopardy Clause. I agree. The facts in Hollman are very similar to the facts in this case.

In Hollman, the appellant was indicted for two counts of resisting an officer and assault and battery with intent to kill. The jury found the appellant guilty of resisting an officer and guilty of assault and battery of a high and aggravated nature. On appeal, this Court held that appellant’s resistance of arrest was in fact ABHAN because the assault on the officer was the “essence of and inseparate from his resistance of arrest.”

Petitioner was convicted of the same offenses as the appellant in Hollman. The majority acknowledges in its opinion that the assault was inseparable from the resistance of arrest. However, the majority applies the Blockburger “same elements” test, and concludes that ABHAN and resisting arrest do not constitute a double jeopardy violation.

The majority relies on State v. Easler, 327 S.C. 121, 489 S.E.2d 617 (1997) to expressly overrule Hollman. However, the majority disregards and ignores the fact that at the time of Petitioner’s trial in 1994, State v. Easler had not been decided by this Court. Justice requires that this case be remanded for resentencing consistent with Hollman.

During the PCR hearing, trial counsel admitted he never considered whether “resistance of unlawful [sic] authority” was included as an element of ABHAN. In my opinion, the PCR judge erred in failing to find trial counsel’s representation defective for not objecting to the sentence under Hollman. Petitioner was clearly prejudiced because he received four sentences instead of two. I would therefore find counsel ineffective.