State v. Merka

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Respondent,
v.
Walter Jacob Merka, Appellant.
Appellate Case No. 2014-001150
Appeal From Greenville County
Letitia H. Verdin, Circuit Court Judge
Unpublished Opinion No. 2016-UP-417
Submitted September 1, 2016 – Filed October 5, 2016
AFFIRMED
William G. Yarborough, III, of William G. Yarborough
III, Attorney at Law, LLC, of Greenville, for Appellant.
Attorney General Alan McCrory Wilson and Assistant
Deputy Attorney General David A. Spencer, both of
Columbia; and Solicitor William Walter Wilkins, III, of
Greenville, for Respondent.
PER CURIAM: Walter Jacob Merka appeals the circuit court's order denying his
motion for a new trial. Merka argues the circuit court erred in (1) denying his
motion, which was based in part on the State's failure to inform him about a
conversation between the victim and the solicitor before he entered his guilty plea
despite his request pursuant to Brady v. Maryland1 and (2) not questioning him
about his mental health history. We affirm.2
1. We find the circuit court did not err in denying Merka's motion for a new trial
despite Merka's claim that the State violated Brady v. Maryland by failing to
disclose the victim's statements regarding her desire for Merka to undergo
counseling instead of being incarcerated. The only evidence Merka had to prove
this conversation between the victim and the solicitor occurred was a text message,
which Merka described as "apparently from a friend of the victim's describing the
victim's desire for Mr. Merka to receive counseling rather than jail time" and a text
message that was "apparently from the victim, desiring to converse with Mr.
Merka."3 These messages do not prove the victim told the solicitor that she did not
want Merka to be incarcerated. Additionally, during the hearing, the solicitor
acknowledged the victim liked the idea of the Addiction Treatment Unit because of
Merka's alcohol issues, but he stated he believed the victim agreed with the State's
sentencing recommendation. In light of the solicitor's statements and the fact that
the victim testified during sentencing and never stated she did not want Merka to
be incarcerated, we find Merka failed to demonstrate the State possessed and
suppressed evidence that was favorable to him. See Gibson v. State, 334 S.C. 515,
524, 514 S.E.2d 320, 324 (1999) ("[A Brady] claim is complete if the accused can
demonstrate (1) the evidence was favorable to the accused, (2) it was in the
possession of or known to the prosecution, (3) it was suppressed by the
prosecution, and (4) it was material to guilt or punishment." (emphases added)
(footnote omitted)).
Furthermore, even if the victim did, in fact, express concern to the solicitor over
Merka being incarcerated, we find no Brady violation occurred because that
information was not material to Merka's guilt or punishment. See id. ("[A Brady]
claim is complete if the accused can demonstrate (1) the evidence was favorable to
the accused, (2) it was in the possession of or known to the prosecution, (3) it was
suppressed by the prosecution, and (4) it was material to guilt or punishment."
(emphasis added) (footnote omitted)); id. at 525, 514 S.E.2d at 325 ("A Brady
violation is material when there is a reasonable probability that, but for the
1
373 U.S. 83 (1963).
2
We decide this case without oral argument pursuant to Rule 215, SCACR.
3
Merka attached a copy of these text messages to his motion to reconsider;
however, the messages were not included in the record on appeal.
government's failure to disclose Brady evidence, the defendant would have refused
to plead guilty and gone to trial.").
2. We find the circuit court did not err by not questioning Merka on his mental
health history during the plea colloquy. During the plea hearing, the circuit court
questioned Merka regarding whether he understood the possible sentence he was
facing, the fact that his crimes were designated as violent offenses, and whether he
had discussed his charges with his attorney. The circuit court also asked Merka
whether he was happy with his attorney; had any complaints against law
enforcement, his attorney, or the solicitor; was under the influence of drugs or
alcohol; had been forced to plead guilty; and understood the rights he was giving
up by pleading guilty. In light of the circuit court's questioning during the plea
colloquy and the fact that the circuit court was not made aware of Merka's mental
health history before the plea hearing, we find the circuit court did not err by not
questioning Merka regarding whether he had any past or present mental health
issues. See Rollison v. State, 346 S.C. 506, 511, 552 S.E.2d 290, 292 (2001) ("All
that is required before a plea can be accepted is that the defendant understand[s]
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[s] a factual basis
for the plea."); State v. Thomason, 355 S.C. 278, 283, 584 S.E.2d 143, 146 (Ct.
App. 2003) ("[O]nce a defendant enters a guilty plea, whether to allow withdrawal
of the plea is left to the sound discretion of the circuit court.").
Additionally, we disagree with Merka's argument that the circuit court erred in not
reconsidering his sentence in light of the after-discovered evidence of his mental
health issues. Merka's mental health history could have been "discovered prior to
the trial" through "the exercise of due diligence." See State v. Spann, 334 S.C. 618,
619-620, 513 S.E.2d 98, 99 (1999) ("In order to prevail in this new trial motion,
appellant must show the after-discovered evidence: (1) is such that it would
probably change the result if a new trial were granted; (2) has been discovered
since the trial; (3) could not in the exercise of due diligence have been discovered
prior to the trial; (4) is material; and (5) is not merely cumulative or impeaching.").
AFFIRMED.
WILLIAMS, THOMAS, and GEATHERS, JJ., concur.