THIS OPINION HAS NO PRECEDENTIAL VALUE.� IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Supreme Court

Ralph L. Williams, Respondent,

v.

State of South Carolina, Petitioner.

ON WRIT OF CERTIORARI

Appeal From Richland County
�Thomas W. Cooper, Jr., Circuit Court Judge

Memorandum Opinion No. 2009-MO-022
Submitted March 18, 2009 � Filed May 12, 2009���

REVERSED

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley Elliott, Assistant Attorney General Brian T. Petrano, of Columbia, for Petitioner.

Diana L. Holt, of Columbia, for Respondent.�

PER CURIAM:� Respondent Ralph L. Williams was sentenced to life without parole pursuant to S.C. Code Ann. � 17-25-45 (2003).� After an unsuccessful direct appeal, Williams filed an application for post-conviction relief (PCR); after a hearing, the application was granted.� We granted the State�s petition to review the grant of PCR, and now reverse.� �

1.  The PCR court found that Williams� trial counsel provided ineffective assistance of counsel with respect to the handling of a pretrial Neil v. Biggers[1]� hearing.� There is no evidence to support the PCR court�s decision.� Trial counsel vigorously challenged the admissibility of the photographic lineup and in-court identification of Williams.� Simply because the trial court found the evidence admissible does not render counsel�s representation ineffective.� We reverse pursuant to Rule 220(b)(1), SCACR. �See also Pierce v. State, 338 S.C. 139, 144-45, 526 S.E.2d 222, 224-25 (2000) (setting forth the analytical framework for establishing ineffective assistance of counsel and noting that when �no probative evidence� supports the PCR court�s ruling it will not be upheld).

2.  The PCR court found that Williams� trial counsel provided ineffective assistance of counsel by failing to investigate the triggering offense which qualified Williams for a life without parole sentence, as the investigation would have shown that Williams was previously represented by the trial judge (then a public defender) that sentenced him to life without parole.� The PCR court found that the representation created a conflict of interest for the trial judge who sentenced Williams to life without parole.� We concur with the PCR court that the record does appear to reflect that the trial judge was involved, at least initially, in representing Williams many years earlier.[2]� The record, however, reveals not a hint of any prejudice as a result of the prior representation, for the record demonstrates that the experienced trial judge presided fairly and with impartiality.� There is no evidence to support the contrary finding of the PCR court.� We reverse pursuant to Rule 220(b)(1), SCACR.�

3.  The PCR court found that Williams� trial counsel provided ineffective assistance of counsel by moving the trial court to reconsider Williams� life without parole sentence, when such motion provided the State an opportunity to conclusively prove that Williams criminal record did require a sentence of life without parole pursuant section 17-25-45.� The PCR court�s premise that, but for the resentencing hearing, the State would not have had an opportunity to prove the existence of Williams� triggering offense, as a matter of law, was incorrect.� The trial court had made the finding at sentencing that Williams� prior record required a life without parole sentence.� It was precisely because of trial counsel�s laudable diligence that the trial court invited Williams to challenge the prior conviction in a post trial motion.� We reverse pursuant to Rule 220(b)(1), SCACR.� See also S.C. Code Ann. � 17-25-45 (2003) (�[U]pon a conviction for a most serious offense as defined by this section, a person must be sentenced to a term of imprisonment for life without the possibility of parole if that person has one or more prior convictions . . . .�).

REVERSED.

TOAL, C.J., WALLER, PLEICONES, BEATTY and KITTREDGE, JJ., concur.

[1]  409 U.S. 188 (1972).

[2]  From the record we can glean that the trial judge�then public defender�was initially assigned to represent Williams on an armed robbery charge.� However, a colloquy between Williams and the trial judge that occurred just after the jury returned its verdict reflects that Williams had been represented by another public defender, concerning his earlier charge.�