Justin Jamal Lewis v. State

THE STATE OF SOUTH CAROLINA
In The Supreme Court
Justin Jamal Lewis, Petitioner,
v.
State of South Carolina, Respondent.
Appellate Case No. 2020-000998
ON WRIT OF CERTIORARI
Appeal from Florence County
D. Craig Brown, Post-Conviction Relief Judge
Opinion No. 28159
Submitted April 17, 2023 – Filed June 14, 2023
REVERSED IN PART AND REMANDED
Appellate Defender Kathrine Haggard Hudgins, of
Columbia, for Petitioner.
Attorney General Alan McCrory Wilson, Senior Assistant
Deputy Attorney General Megan Harrigan Jameson, and
Assistant Attorney General Danielle Dixon, all of
Columbia, for Respondent.
JUSTICE JAMES: Petitioner Justin Jamal Lewis represented himself at trial and
was convicted of distribution of heroin. Lewis timely filed an application for post-
conviction relief (PCR), alleging pretrial counsel was ineffective in several respects.
The PCR court summarily dismissed Lewis's application, and we granted his petition
for a writ of certiorari to review the PCR court's order. We reverse the order in part
and remand for further proceedings consistent with this opinion.
Background
On the morning of trial, Lewis moved to relieve pretrial counsel, claiming
counsel did not communicate with him and was not prepared for trial. Pretrial
counsel insisted he was ready for trial. The trial court concluded pretrial counsel
was prepared and denied Lewis's motion. Lewis then requested to represent himself.
After conducting a Faretta hearing,1 the trial court allowed Lewis to represent
himself and appointed pretrial counsel as standby counsel. During the Faretta
hearing, Lewis made clear he did not want a continuance. Just before trial began,
Lewis—again, representing himself—stipulated to the admissibility of the "buy
video" and of the substance alleged to have been heroin. Lewis did not object to the
introduction of the chemical analysis report stating the substance was heroin.
In his PCR application, Lewis alleges pretrial counsel was ineffective in (1)
failing to adequately investigate the criminal charge, (2) failing to file pretrial
motions challenging the admissibility of evidence, (3) failing to communicate with
material witnesses whose testimony would have been favorable to the defense, (4)
failing to request or procure a copy of the chemical analysis report and affidavits
that would establish the chain of custody for physical evidence, (5) failing to timely
request a preliminary hearing, (6) failing to advise Lewis of his right to appeal, (7)
failing to provide the necessary information for filing a notice of appeal, and (8)
failing to file a notice of appeal on Lewis's behalf.
The PCR court granted the State's motion to dismiss Lewis's application with
prejudice for failure to state a claim upon which relief can be granted. See Rule
12(b)(6), SCRCP. The PCR found Lewis was "not entitled to [PCR] on the basis of
ineffective assistance of counsel, even for pretrial conduct," because he "represented
himself at trial" and, in doing so, "assumed responsibility for correcting any pretrial
errors . . . ." Additionally, the PCR court found Lewis "explicitly told [the trial
court] he was not asking for a continuance" and "cannot complain now of counsel's
alleged lack of pretrial investigation, failure to review discovery, or trial
preparation." We granted Lewis's petition for a writ of certiorari to review the PCR
court's order.
1
Faretta v. California, 422 U.S. 806 (1975). Lewis does not challenge the
sufficiency of the Faretta hearing, nor does he challenge the propriety of his waiver
of the right to counsel.
Discussion
Lewis argues his PCR application "present[s] genuine issues of material fact
requiring a hearing." 2 Lewis further argues a defendant who represented himself at
trial can claim ineffective assistance of pretrial counsel if he "did not have the
opportunity to correct" an alleged error by counsel. See Cook v. Ryan, 688 F.3d 598,
610-12 (9th Cir. 2012). Lewis maintains he did not have an opportunity to correct
pretrial counsel's errors because he decided to represent himself the morning of trial,
and the trial court repeatedly told him the case would not be continued. Lewis also
argues he "did not make a knowing and intelligent decision to waive [his right to]
direct appeal" because neither the trial court nor pretrial counsel advised him of that
right.
Some of Lewis's PCR claims are patently meritless. First, while he claims
pretrial counsel failed to timely request a preliminary hearing, the record shows
Lewis himself requested a preliminary hearing eight days after arrest. See Rule 2(a),
SCRCrimP ("In all cases, the request for a preliminary hearing shall be made within
ten days after [notice of his right to a preliminary hearing]."). Second, the PCR court
also properly dismissed Lewis's evidentiary claims. While representing himself,
Lewis stipulated to the admission of the buy video, a still photograph from the video,
and the heroin. Similarly, Lewis did not object to the admission of the chemical
analysis report into evidence. See Faretta, 422 U.S. at 834, n.46 ("The right of self-
representation is not a license to abuse the dignity of the courtroom. Neither is it a
license not to comply with relevant rules of procedural and substantive law.").
Two of Lewis's claims—pretrial counsel's alleged failure to adequately
investigate the criminal charge and failure to communicate with material witnesses
whose testimony would have been favorable to the defense—require us to determine
whether a pro se defendant may allege ineffective assistance of pretrial counsel.
Citing Cook, 688 F.3d at 609, the PCR court summarily dismissed these claims. The
PCR court found Lewis "assumed responsibility for correcting any pretrial errors
when he elected to represent himself." We disagree. The defendant in Cook began
representing himself two weeks before trial, while Lewis began representing himself
the morning trial began. Under the circumstances present here, there is a genuine
2
"[S]ummary dismissal without a hearing is appropriate only when (1) it is apparent
on the face of the application that there is no need for a hearing to develop any facts
and (2) the applicant is not entitled to relief." Al-Shabazz v. State, 338 S.C. 354,
364, 527 S.E.2d 742, 747 (2000).
issue of material fact as to whether Lewis had an opportunity to correct pretrial
counsel's alleged errors.
We have never adopted a bright-line rule forbidding pro se defendants from
alleging ineffective assistance of pretrial counsel, and we decline to do so today.
Rather, we acknowledge a pro se defendant may present a colorable claim of pretrial
ineffective assistance of pretrial counsel.3
Lewis also claims pretrial counsel failed to advise him of the right to appeal,
failed to provide the necessary information for filing a notice of appeal, and failed
to file a notice of appeal on his behalf. It appears PCR counsel moved for a new trial
on behalf of Lewis. We are not prepared to determine on the record before us
whether this required pretrial counsel to advise Lewis of his right to appeal or to take
the other steps Lewis complains pretrial counsel did not take.
As in all PCR cases, Strickland v. Washington ensures PCR will be limited to
instances where counsel's performance was deficient and that deficient performance
prejudiced the defendant. 466 U.S. 668, 687 (1984).
Conclusion
We reverse the PCR court's order in part and remand for a hearing on Lewis's
claims that pretrial counsel failed to adequately investigate the criminal charge,
failed to communicate with material witnesses whose testimony would have
allegedly been favorable to the defense, failed to advise him of the right to appeal,
failed to provide the necessary information for filing a notice of appeal, and failed
to file a notice of appeal on his behalf. We express no opinion on the merits of these
claims.
3
See, e.g., Wilson v. Parker, 515 F.3d 682, 698 (6th Cir. 2008) (stating that because
counsel's allegedly defective conduct occurred before the defendant waived his right
to counsel, "the logic . . . that exercising the Faretta right to represent oneself
necessarily eliminates claims of ineffective assistance does not apply").
REVERSED IN PART AND REMANDED.
BEATTY, C.J., KITTREDGE, FEW and HILL, JJ., concur.