Rollison v. State

PLEICONES, Justice:

We granted certiorari to review a circuit court order granting respondent post-conviction relief (PCR). The PCR judge concluded trial counsel rendered respondent ineffective assistance when she failed to challenge a search and when she allowed him to plead guilty, pursuant to a negotiated agreement, to both first and second offense drug charges in the same proceeding. We reverse.

Facts/Procedural History

Respondent was charged with possession of crack cocaine and unlawfully carrying a pistol based on an incident in January 1995. In June 1995, he was arrested and charged with possession of crack cocaine with intent to distribute (PWID). In addition, respondent faced two drug charges from 1994 and one from 1996. Pursuant to a negotiated agreement, the State dropped the 1994 and 1996 charges, and in August 1996 respondent pleaded guilty to possession of crack cocaine, second offense PWID, and carrying a pistol. He received concurrent sentences of twenty years suspended on service of fifteen with three years’ probation (PWID), five years (possession), and one year (weapons charge).

Respondent did not file a direct appeal, but did file a PCR application. Following an evidentiary hearing, he was granted a new trial on all charges. We granted the State’s petition for a writ of certiorari to review this decision.

Law/Analysis

■ In order to obtain relief on an ineffective assistance of counsel claim, a PCR applicant must establish both that his counsel’s performance fell below an objective standard of reasonableness and that he was prejudiced by counsel’s deficient performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Brown v. State, 340 S.C. 590, 533 S.E.2d 308 (2000). Further, the PCR judge’s findings should be upheld if supported by any probative evidence in the record. E.g., Anderson v. State, 342 S.C. 54, 535 S.E.2d 649 (2000).

A. Search Issue

The following can be gleaned from the record: The solicitor told the trial judge at the plea that someone called the police from a Saturn car dealership to complain that a man was selling crack at the dealership. The caller said the seller always came twice on Fridays. When the man returned a second time on that Friday, someone from the dealership again called the police, who went to the location. The solicitor stated that when the police approached respondent and began questioning him, he “resisted them.” When they patted him down, they found the crack.

According to the arrest warrant affidavit, however, the officer went to the dealership and observed respondent standing beside a vehicle. Respondent and the car matched the caller’s description. The officer approached respondent and began a weapons pat-down. Respondent became combative, and after using “necessary force,” marijuana was found in his pocket. The search incident to the arrest revealed the crack cocaine.

A reading of the affidavit in isolation raises a question regarding the legality of the weapons frisk. See Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) (police must have a reasonable belief the defendant is armed and dangerous before they may conduct a weapons frisk). Respondent cannot rely upon this document alone, however, to establish his ineffective assistance claim, especially since the solicitor’s rendition of facts at the plea show no constitutional error. Respondent must also show prejudice, that is, that had his trial attorney challenged the frisk, there is a reasonable probability that she would have prevailed in a suppression hearing.

“Failure to conduct an independent investigation does not constitute ineffective assistance of counsel when the allegation is supported only by mere speculation as to the result.” Moorehead v. State, 329 S.C. 329, 496 S.E.2d 415 (1998). Here, we are left to speculate whether, in fact, the search was unconstitutional. ' The PCR judge’s finding that “without further investigation by Defense Counsel it would be impossible to decide on the legality of the search” is an insufficient basis upon which to order PCR. Assuming that trial counsel’s failure to investigate the circumstances surrounding the search fell below an objective standard of reasonableness, respondent did not meet his burden of showing resulting prejudice. We therefore reverse the grant of PCR on this ground. Jackson v. State, 329 S.C. 345, 495 S.E.2d 768 (1998) (grant of PCR must be reversed where no prejudice is shown).

B. Plea

The PCR judge also found trial counsel ineffective in allowing respondent to plead to second offense PWID at the same time he was pleading guilty to his first drug offense. Respondent contended, and the PCR judge agreed, that respondent and the plea judge¹ were not “clearly informed” that the PWID charge was being “enhanced” to a second offense based upon the simultaneous plea to the possession charge. We find respondent knowingly, intelligently, and voluntarily agreed to plead guilty to both offenses as part of a plea bargain in which the State agreed to drop three other drug charges. We therefore reverse the grant of PCR on this ground.

A defendant may, as part of a plea bargain, agree to plead guilty to a crime for which he has been indicted (or to which he has waived grand jury presentment), but of which he is not guilty. In Anderson v. State, supra, for example, we held that an individual could plead guilty to voluntary manslaughter under an indictment charging him with murder, even though the facts would not support such a lesser charge. Cf. Gaines v. State, 335 S.C. 376 n. 1, 517 S.E.2d 439 n. 1 (1999)(explaining that in North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), United States Supreme Court held it was constitutional to allow accused to consent to imposition of sentence, although unwilling to admit culpability, where he intelligently concludes that a guilty plea is in his best interest and the evidence strongly supports his guilt).

While the PCR judge and respondent refer to the possession charge as “enhancing” the PWID charge to a second offense, this characterization overlooks the fact that this case involves a plea bargain. As such, the agreement is governed by contract principles,² and petitioner was free to negotiate this type of agreement. See Anderson v. State, supra.

All that is required before a plea can be accepted is that the defendant understand the nature and crucial elements of the charges, the consequences of the plea, and the constitutional rights he is waiving, and that the record reflect a factual basis for the plea. Anderson v. State, supra. A review of both the plea record and respondent’s PCR testimony³ indicates he was well aware that he was pleading guilty both to first offense possession and to second offense PWID, and of the potential sentences he faced as a result. Further, there was a sufficient factual basis presented for both the PWID charge and the separate possession charge in the recitation made by the solicitor at the plea. This is all that is required, and the plea was proper.⁴ Respondent received the benefit of the agreement for which he bargained and cannot now complain. Cf. State v. Thrift, supra (“Whether a plea agreement is wise, or even in the best interests of the [party], is not the question before us”).

There is no evidence in the record to support the PCR judge’s finding that trial counsel was. ineffective in allowing respondent to accept this plea bargain. A finding that is without evidentiary support must be reversed. Anderson v. State, supra.

Conclusion

For the reasons given above, the order granting respondent post-conviction relief is

REVERSED.

MOORE, WALLER, BURNETT, JJ., concur. TOAL, C.J., concurring in part and dissenting in part in a separate opinion.

1 . While it is unfortunate that the plea judge may not have understood that respondent had no previous drug convictions, this fact standing alone does not entitle respondent to relief. It is respondent’s understanding, not the judge’s, which is at issue here.

2 . See State v. Thrift, 312 S.C. 282, 440 S.E.2d 341 (1994).

3 . Both records are considered on appellate review of a PCR matter. Harres v. Leeke, 282 S.C. 131, 318 S.E.2d 360 (1984).

4 . We attach no significance to the order in which respondent pled to these offenses. As noted above, a defendant may constitutionally plead guilty to a charge he did not commit, so long as the plea is knowing, intelligent, and voluntary. In any event, respondent’s second offense plea was based on his arrest in June 1995 while his plea to the first offense was predicated on his January 1995 arrest. The actual sequencing of the pleas is immaterial, as is the issue of respondent's guilt-in-fact, since respondent received the benefit of his constitutional plea bargain.