THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Mauricio Leon, 277794, Respondent,

v.

State of South Carolina, Appellant.

Certiorari to Spartanburg County
Roger L. Couch, Circuit Court Judge

Opinion No. 4420
Submitted May 1, 2008 Filed June 27, 2008

REVERSED

Henry Dargan McMaster, Attorney General, John W. McIntosh, Chief Deputy Attorney General, Salley W. Elliott, Assistant Deputy Attorney General, and Molly R. Crum, Assistant Attorney General, all of Columbia, for Appellant.

Symmes W. Culbertson, of Greenville, for Respondent.

HEARN, C.J.: Mauricio Leon filed a post-conviction relief (PCR) application on May 15, 2002, alleging his guilty plea was involuntary, ineffective assistance of counsel, and denial of due process of law. The PCR judge vacated Leons conviction and ordered a new trial. We reverse.

FACTS

Leon pled guilty to following offenses: (1) trafficking more than 400 grams of cocaine; (2) two counts of trafficking 10 to 28 grams of methamphetamine; and (3) trafficking 10 to 28 grams of cocaine. Leon is a native of Mexico and speaks very little English. The interpreter present at the guilty plea hearing, while approved by the court, did not appear to be under oath. Leon was sentenced to twenty-five years and a $200,000 fine for trafficking more than 400 grams of cocaine, to run concurrent with sentences of ten years and a $25,000 fine for each of the remaining three charges. The sum of his sentence was twenty-five years of incarceration and fines amounting to $275,000.

Leon filed a PCR application, and a hearing was held. The PCR judge granted Leons petition for PCR, finding Leons counsel was ineffective for failing to object to the interpreter not being sworn at the guilty plea hearing. The PCR judge found the trial counsels failure to preserve the issue of the omission of the interpreters oath [constitutes] ineffective assistance of counsel. As a result, the State petitioned this court for writ of certiorari.

LAW/ANALYSIS

The State contends the PCR judge erred in granting Leons PCR application. Specifically the State argues Leon failed to meet both prongs of the Strickland test for ineffective assistance of counsel. We agree.

In order to establish a claim of ineffective assistance of counsel, a PCR applicant must prove: (1) counsels performance was deficient; and (2) the deficient performance prejudiced the applicants case. Strickland v. Washington, 466 U.S. 668, 687 (1984); Cherry v. State, 300 S.C. 115, 117, 386 S.E.2d 624, 625 (1989). To show counsel was deficient, the applicant must establish counsel failed to render reasonably effective assistance under prevailing professional norms. Strickland, 466 U.S. at 687; Cherry, 300 S.C. at 117-18, 386 S.E.2d at 625. When a guilty plea has been entered, the applicant must prove counsels representation was below the standard of reasonableness and but for counsels unprofessional errors, there is a reasonable probability the applicant would not have pled guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 58-59 (1985); Alexander v. State, 303 S.C. 539, 543, 402 S.E.2d 484, 485 (1991). In determining guilty plea issues, it is proper to consider the guilty plea transcript, as well as evidence at the PCR hearing. Harres v. Leeke, 282 S.C. 131, 133, 318 S.E.2d 360, 361 (1984).

Even if we assume counsels performance was deficient, Leon has the burden to establish prejudice under the two-prong Strickland test. [I]n order to satisfy the prejudice requirement [in the context of a guilty plea], the defendant must show that there is a reasonable probability that, but for counsels errors, he would not have pleaded guilty and would have insisted on going to trial. Alexander, 303 S.C. at 542, 402 S.E.2d at 485. Here, Leon testified he did not understand the interpreter provided by the court because he was nervous and the interpreter spoke too fast. However, when asked during direct-examination if he would have gone to trial instead of pleading guilty if someone would have further explained his rights or possible defenses, Leons response was, No. Thus, Leon fails to prove the deficient performance by his attorney prejudiced his case. Because Leon did not establish prejudice, the PCR court erred in granting PCR. Therefore, the order of the PCR court is

REVERSED.[1]

KITTREDGE, J., and GOOLSBY, A.J., concur.

[1] We decide this case without oral argument pursuant to Rule 215, SCACR.