Rolen v. State

¶1I respectfully dissent. We granted certiorari to review a post-conviction relief (PCR) order denying petitioner’s claim that his trial counsel was ineffective in failing to move to withdraw petitioner’s plea. Since the question of “ineffectiveness” embraces both deficient performance and prejudice, we err if we decline to make a finding on both prongs. I would find no prejudice, and affirm.

¶2Where an applicant claims his guilty plea counsel was ineffective, that applicant bears the burden of showing both that counsel’s performance was deficient and that the deficient performance resulted in prejudice, that is, it affected the outcome of the plea process. Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Ordinarily “prejudice” is established by evidence that had counsel not been deficient, there is a reasonable probability that the applicant would not have pled guilty but would instead have insisted on going to tidal.4Id.As the HillCourt recognized, a determination of prejudice in this context will depend on the likelihood that had counsel done that which the applicant asserts he should have, counsel’s act would have been successful, i.e., had counsel investigated, he would have found evidence causing him to change his advice to plead guilty. The Court acknowledged that in judging prejudice, it was necessary to make objective “predictions of the outcome at a possible trial.” Id. at 59-60, 106 S.Ct. 366.

¶3Speculation is a necessary component of most PCR cases since prejudice is judged by the “reasonable probability” standard: would the jury have acquitted had it not heard the improper evidence? Would the trial judge have suppressed the evidence had a suppression motion been made? Where, as here, counsel’s deficiency is the failure to request some form of relief committed to the trial judge’s discretion, the PCR applicant establishes prejudice by demonstrating that had the *417request been made, it would have been an abuse of discretion to have denied it. E.g., Wolfe v. State, 326 S.C. 158, 485 S.E.2d 367 (1997) (continuance).

¶4Here, the majority holds counsel was deficient in failing to make a motion to withdraw petitioner’s plea. It acknowledges that whether to grant such a request lies in the plea judge’s discretion. The Court then declines to decide whether petitioner has shown the requisite prejudice — ie., whether it would have been an abuse of discretion to .have denied the motion if made. Instead, the majority appears to create a new standard of prejudice: counsel renders ineffective assistance when she neglects to preserve an issue, whether or not that issue has merit, for direct appeal. Under this standard, the remedy is not a new proceeding, but instead a rewind,5 returning all characters to the point in the guilty plea when petitioner maintains the motion to withdraw should have been made. Among the unanswered questions raised by this extraordinary remedy,6 is whether, henceforth, a PCR judge who finds deficient performance will be able to avoid the prejudice issue by remanding the matter to criminal court.

¶5The majority goes on to hold that if the motion is made and then denied, petitioner may appeal from this ruling made in the new proceeding. While ordinarily the State would not be able to appeal the granting of a motion to withdraw a guilty plea made in the plea proceeding, I question whether such an appeal would lie from a ruling on remand.

¶6On the merits, I agree that counsel was deficient when she failed to move to withdraw petitioner’s guilty plea. I do not find the requisite prejudice, however, since I do not find a reasonable probability that had such a motion been made it would have been granted. First, had the plea judge believed *418the integrity of the plea was in question, he should have sua sponte refused to continue. In my view, it is more likely that he viewed petitioner’s outburst as unfortunate but not unusual. Since I find no prejudice from counsel’s deficient performance, I would affirm the order denying petitioner’s PCR application.