Duckson v. State

586 S.E.2d 576, 355 S.C. 596, 2003 S.C. LEXIS 215

Opinions

JUSTICE PLEICONES:

Petitioner’s parole was revoked following a hearing at which he was represented by a retained attorney. Petitioner then filed an application for post-conviction relief (PCR) alleging, among other things, that his parole revocation attorney rendered ineffective assistance of counsel. Following an evidentiary hearing, the PCR judge held:

(1) Petitioner had stated no cognizable claim under the Uniform Post Conviction Relief Act¹; and

(2) Petitioner failed to prove that his parole revocation counsel was ineffective.

We granted certiorari, and now affirm.

ISSUE

Has petitioner stated a cognizable PCR claim?

ANALYSIS

In Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000), we held that, generally, PCR is available “only when the applicant mounts a collateral attack challenging the validity of his conviction or sentence ...” Id. at 367, 527 S.E.2d at 749 (emphasis in original). The only exceptions are that a PCR action may be brought to assert a claim that the applicant’s sentence has expired, or that his probation, parole, or conditional release has been unlawfully revoked. Id., citing S.C.Code Ann. § 17-27-20(a)(5).

At first glance, it would appear that petitioner’s claim of ineffective assistance of counsel brings this action within the ambit of § 17-27-20(a)(5). An ineffective assistance claim is premised, however, on the violation of an individual’s Sixth Amendment right to counsel. See, e.g., McKnight v. State, 320 S.C. 356, 465 S.E.2d 352 (1995). No such Sixth Amendment right to counsel exists, however, in the context of a parole revocation hearing which is an administrative rather than a criminal proceeding.² See In re McCracken, 346 S.C. 87, 551 S.E.2d 235 (2001) (Sixth Amendment right to the effective assistance of counsel limited to criminal actions).³

A constitutional right to counsel may arise in a parole revocation proceeding by virtue of the Due Process clause. See Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Further, a state statute permits counsel to appear at such a hearing. S.C.Code Ann. § 24-21-50 (Supp.2002). At his parole revocation hearing, petitioner was represented by his retained attorney. Since petitioner’s attorney was permitted to appear, and since petitioner does not contend that his Due Process rights⁴ were violated, he has failed to allege that his parole revocation hearing was “unlawful.” Petitioner has therefore failed to state a claim cognizable in a PCR action. S.C.Code Ann. § 17-27-20(a)(5).

Accordingly, the decision of the PCR court is

AFFIRMED.

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

Footnotes

1

. S.C.Code Ann. §§ 17-27-10 through -160 (2003).

2

. The concurrence would recognize no distinction between probation and parole in this context. Probation is judicially-imposed at the time of sentencing: whether a violation of probationary terms has occurred, and if so, the consequences of such a violation, are matters for the courts. See e.g., State v. Crouch, Op. No. 25698, 585 S.E.2d 288 (S.C.Sup.Ct.2003). On the oilier hand, the Board of Probation, Parole, and Pardon Services determines both parole eligibility and revocations. Id.; Brown v. State, 306 S.C. 381, 412 S.E.2d 399 (1991).

3

. The concurring opinion would extend the holding of Barlet v. State, 288 S.C. 481, 343 S.E.2d 620 (1986), that all individuals have a right to counsel in a probation revocation, to parole revocations as well. See footnote 3, infra. The Barlet decision is grounded in our Rules, and not in the Constitution. See Rule 602(a), SCACR; see also e.g. Austin v. State, 305 S.C. 453, 409 S.E.2d 395 (1991) (right to counsel on PCR certiorari by virtue of Court rule, not constitution). While it may be preferable to give all inmates facing parole revocation the right to counsel, such a requirement is not found in the Constitution or Court rule. See Ex parte Foster, 350 S.C. 238, 565 S.E.2d 290 (2002) ("The unnecessary appointment of lawyers to serve as counsel or GALs places an undue burden on the lawyers of this State.... [A] lawyer should not be appointed as counsel for an indigent unless the indigent has a right to appointed counsel under the state or federal constitution, a statute, a court rule or the case law of this State").

4

. The concurring opinion would engraft the Sixth Amendment standard of effective assistance of counsel onto an attorney appointed pursuant to the Due Process clause. In support of this proposition, that opinion cites a California Court of Appeals decision, In re Issac J., 4 Cal.App.4th 525, 6 Cal.Rptr.2d 65 (4th Dist.1992), and an opinion from the Superior Court of Pennsylvania, In re Smith, 393 Pa.Super. 39, 573 A.2d 1077 (1990). In fact, the California Courts of Appeal are divided whether parents facing termination of their parental rights are entitled to the effective assistance of counsel issue, and the issue has not been resolved by the California Supreme Court. Compare Issac J., supra with In re Ammanda G., 186 Cal.App.3d 1075, 231 Cal.Rptr. 372 (3rd Dist.1986). Like Pennsylvania, we have long recognized that juveniles are entitled to the effective assistance of counsel in their quasi-criminal proceedings, and have judged claims that the standard was not met by the same criteria used in adult PCR cases. See, e.g., Sanders v. State, 281 S.C. 53, 314 S.E.2d 319 (1984). Neither of the cases cited convinces us that we should transform petitioner’s Sixth Amendment claim into a Due Process claim, and thereafter judge that Due Process claim by a Sixth Amendment standard.