Grounds for PCR Claims: It’s Not Just Ineffective Assistance of Counsel

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What are the possible grounds for PCR claims in South Carolina?

Reading appellate opinions or “PCR guides” written by prosecutors, you would think the answer is “ineffective assistance of counsel.” That’s it, nothing else to see here, move along…

Except, that’s not it. There are many, many different possible grounds for PCR claims in SC, including:

  • Ineffective assistance of counsel and resulting prejudice,
  • Constitutional violations,
  • Prosecutorial misconduct,
  • After-discovered evidence,
  • Lack of jurisdiction of the trial court,
  • A sentence that exceeds the maximum authorized by law, or
  • That the person is being unlawfully held in custody for any reason.

Grounds for PCR Claims: Ineffective Assistance of Counsel

Why do attorneys and judges talk as if ineffective assistance of counsel is the only possible ground for PCR in SC?

First, it is by far the most common ground for PCR in SC, and most caselaw on post-conviction relief in SC deals with ineffective assistance and resulting prejudice as defined in Strickland v. Washington.

Second, the most common documents discussing post-conviction relief are 1) appellate opinions written by justices who want to limit the number of PCR cases brought in SC courts and 2) PCR guides written by current or former prosecutors who want to limit the number of PCR cases brought in SC courts.

In most cases, the alleged grounds for PCR will include ineffective assistance of counsel – the applicant must prove 1) that their trial attorney made a mistake and 2) the mistake resulted in prejudice – a reasonable probability that, but for trial counsel’s mistakes, the outcome would have been different.

Although most PCR claims can be framed as ineffective assistance of counsel, many other potential grounds for PCR are often overlooked.

Potential Remedies When PCR is Granted in SC

What is the remedy when PCR is granted?

Over and over, PCR judges (and PCR attorneys) will tell applicants that, if they win their PCR, the only thing they win is a new trial. They will go back to square one, any dismissed charges will be restored, and they will face a new trial and the possibility of a maximum sentence if convicted.

That’s not always true, though.

There are many potential remedies if you win a PCR claim. Depending on the PCR issue, the court could order a new trial, a new sentencing hearing, an opportunity to file a direct appeal, or other potential remedies based on the claims granted by the court.

Why would a judge or PCR attorney tell you there is no other possible remedy? Or not tell you that most PCRs do not result in a retrial (it could also result in a dismissal or an offer you can’t reasonably refuse)?

Because they want you to withdraw your PCR before the hearing begins

Other Grounds for PCR Claims in South Carolina

What are some of the other grounds for PCR claims in SC? Let’s begin by looking at the statute.

SC Code § 17-27-20

SC Code § 17-27-20 lists the grounds for PCR in South Carolina which include:

(1) That the conviction or the sentence was in violation of the Constitution of the United States or the Constitution or laws of this State;

(2) That the court was without jurisdiction to impose sentence;

(3) That the sentence exceeds the maximum authorized by law;

(4) That there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice;

(5) That his sentence has expired, his probation, parole or conditional release unlawfully revoked, or he is otherwise unlawfully held in custody or other restraint; or

(6) That the conviction or sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore available under any common law, statutory or other writ, motion, petition, proceeding or remedy; may institute, without paying a filing fee, a proceeding under this chapter to secure relief. Provided, however, that this section shall not be construed to permit collateral attack on the ground that the evidence was insufficient to support a conviction.

“Ineffective assistance of counsel” is not one of the grounds for PCR listed in the statute because it is included in section (1), a “conviction or… sentence… in violation of the Constitution…”

The Sixth Amendment’s right to assistance of counsel means that you have the right to effective assistance of counsel, and a violation of that right (when it results in prejudice) is grounds for post-conviction relief.

Other Constitutional Violations

In Jones v. SC, decided this week, the SC Supreme Court found that a claim that a statute is unconstitutional is a proper PCR claim.

The State argued, and the lower PCR court held, that a claim that the statute was unconstitutional should have been raised on direct appeal or through federal habeas; however, the SC Supreme Court pointed out that the unconstitutionality of a conviction or sentence is the very first ground for PCR listed in the statute:

…the conviction or the sentence was in violation of the Constitution of the United States or the Constitution or laws of this State….

Furthermore, the SC Supreme Court has held previously that “[a] violation found to be unconstitutional after the time for appeal lapses is not a direct appeal issue and is not barred from PCR consideration.” Gibson v. State, 329 S.C. 37, 41, 495 S.E.2d 426, 428 (1998).

PCR claims are not limited to claims of ineffective assistance of counsel. Ineffective assistance of counsel is only one of the hundreds of possible ways a conviction could violate the US or SC Constitution.

Brady Violations and Prosecutorial Misconduct

To be clear, the potential grounds for PCR in South Carolina include Brady violations and prosecutorial misconduct.

Although you will have an uphill battle when you allege either a Brady violation or another form of prosecutorial misconduct, and your PCR judge (who most likely is a former prosecutor) might be rolling their eyes when you aren’t looking, it is grounds for PCR when you can prove it.

See Gibson v. State (a different Gibson v. State than the one cited above), where the petitioner’s conviction was reversed based on prosecutorial misconduct and a Brady violation when the prosecutor withheld critical information about a key witness at Gibson’s trial.

Furthermore, it doesn’t matter if the Brady violation was intentional or negligent – the “good faith” of the prosecutor doesn’t matter one bit because the defendant was denied a fair trial either way:

It does not matter whether the prosecutor’s misconduct in failing to reveal Brady evidence is due to negligence or an intentional act because a court may find a Brady violation irrespective of the good faith or bad faith of the prosecutor. Brady is based on a sense of fairness, and a belief that society gains when a defendant is accorded a fair trial. The focus is not on the misconduct of the Prosecutor, but on the fairness of the procedure.” New York v. Jackson, 154 Misc. 2d 718, 593 N.Y.S.2d 410, 417 (Sup.Ct.1992). As the Supreme Court explained in Brady, “[t]he principle … is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused. Society wins not only when the guilty are convicted but when criminal trials are fair[.]” Brady, 373 U.S. at 87, 83 S.Ct. at 1197, 10 L.Ed.2d at 218. “If the suppression of evidence results in constitutional error, it is because of the character of the evidence, not the character of the prosecutor.” United States v. Agurs, 427 U.S. at 110, 96 S.Ct. at 2401, 49 L.Ed.2d at 353.

Whether it is a violation of the right to counsel, Due Process, the Second Amendment, or the Fourth Amendment, if a person is convicted in violation of the US or SC Constitution, they may have grounds for PCR.

Questions About Grounds for PCR in South Carolina?

The criminal defense attorneys at the Thompson & Hiller Defense Firm focus exclusively on criminal defense cases in SC including PCR (post-conviction relief) claims. We have obtained dismissals, pre-trial diversion resulting in dismissals, or acquittals following trial in hundreds of criminal cases, and we have a record of proven results.

If you have been charged with a crime in SC or if you think you may be under investigation, call us now at 843-444-6122 or contact us through our website for a free initial consultation to find out if we can help.