Jackson v. State

535 S.E.2d 926, 342 S.C. 95, 2000 S.C. LEXIS 180

• Court: Supreme Court of South Carolina
• Decided: August 14, 2000
• Docket: 25181
• Status: Published

Opinions

MOORE, Justice:

Petitioner pled nolo contendere to threatening a public official.¹ Petitioner filed a writ of certiorari to review the denial of his post-conviction relief (PCR) petition. We reverse.

ISSUE

Was trial counsel ineffective in advising petitioner that threatening a public official was a misdemeanor?

DISCUSSION

The PCR judge found trial counsel’s performance was not deficient and petitioner had failed to prove prejudice. Petitioner contends the PCR judge erred. We agree.

A plea of nolo contendere is for all practical purposes treated as a guilty plea. Kibler v. State, 267 S.C. 250, 227 S.E.2d 199 (1976); State v. Munsch, 287 S.C. 313, 338 S.E.2d 329 (1985). A defendant who pleads guilty on the advice of counsel may collaterally attack the plea only by showing that (1) counsel was ineffective and (2) there is a reasonable probability that but for counsel’s errors, the defendant would not have pled guilty. Wolfe v. State, 326 S.C. 158, 485 S.E.2d 367 (1997); Satterwhite v. State, 325 S.C. 254, 481 S.E.2d 709 (1997).

Threatening a public official is a crime defined in S.C.Code Ann. § 16-3-1040 (Supp.1999) and classified as a felony in S.C.Code Ann. § 16-l-90(F)(Supp.l999). At the plea hearing, the judge asked trial counsel if the crime was a felony or a misdemeanor. Trial counsel stated, “Misdemeanor, I think.” At the PCR hearing, when asked if the offense was a felony, trial counsel answered, “According to what y’all are saying today.”

In reviewing the PCR court’s decision, this Court is concerned only with whether there is any evidence of probative value to support that decision. Cherry v. State, 300 S.C. 115, 386 S.E.2d 624 (1989). We find trial counsel was deficient in failing to advise petitioner that threatening a public official was a felony rather than a misdemeanor.

Petitioner testified he would not have pled had he known the charge was a felony. The PCR judge found petitioner’s testimony was not credible. However, there was no evidence contradicting or conflicting with petitioner’s testimony that would support the PCR judge’s finding that petitioner would not have pled. In Alexander v. State, 303 S.C. 539, 402 S.E.2d 484 (1991), the PCR judge denied a petitioner relief when trial counsel erroneously advised the petitioner about his potential sentence prior to his guilty plea. We reversed and held the petitioner had satisfied the prejudice prong when “the only evidence in the record on this point [was] petitioner’s own testimony that had trial counsel not misinformed him that he would face a potential life sentence if he proceeded to trial, he would not have pled guilty.” (citing Hinson v. State, 297 S.C. 456, 377 S.E.2d 338 (1989) (new trial granted where incorrect parole eligibility advice induced plea)).² Here, the only evidence was that petitioner would not have pled had he known the charge was a felony. Thus, petitioner was entitled to PCR.

REVERSED.

FINNEY, C.J., TOAL and WALLER, JJ., concur. BURNETT, J., dissenting in a separate opinion.

1 . Petitioner was involved in a divorce and had called his children's school to speak with them. A school clerk refused and petitioner became hostile and threatened her.

2 . To the extent that Judge v. State, 321 S.C. 554, 471 S.E.2d 146 (1996), can be read to hold that a petitioner’s statement is insufficient evidence to satisfy the prejudice prong, it is hereby overruled.