THE STATE OF SOUTH CAROLINA

In The Supreme Court

Marshall Davis, Petitioner,

v.

State of South Carolina, Respondent.

ON WRIT OF CERTIORARI

Appeal From Colleton County

Gerald C. Smoak, Trial Judge

Jackson V. Gregory, Post-Conviction Judge

Opinion No. 24986

Submitted May 27, 1999 - Filed August 9, 1999

REVERSED

Assistant Appellate Defender Melissa J. Reed Kimbrough,

of S.C. Office of Appellate Defense, of Columbia, for

petitioner.

Attorney General Charles M. Condon, Deputy Attorney

General John W. McIntosh, Assistant Deputy Attorney

General Teresa A. Knox, Assistant Attorney General J.

Benjamin Aplin, all of Columbia, for respondent.

TOAL, A.J.: In this post-conviction relief (PCR) matter, Marshall Davis

"Petitioner") asks this Court to review the PCR court's denial of relief.

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FACTUAL/PROCEDURAL BACKGROUND

In June 1995, a jury convicted petitioner on one count of distribution of

crack cocaine. The trial court sentenced petitioner to ten years in prison.

Petitioner's attorney subsequently made a motion for reconsideration and

reduction of the sentence. The trial court denied the motion.

On June 22, 1995, petitioner filed a notice of appeal, which was later

withdrawn on January 24, 1996. On March 25, 1996, petitioner filed an

application for PCR. Petitioner argued his trial counsel had been ineffective.¹

The PCR court dismissed the application, finding petitioner's allegation that he

received ineffective assistance of counsel was without merit. We granted

certiorari to address the following issue:

Whether the PCR court erred in ruling that petitioner received

effective assistance of counsel when the trial court in sentencing

petitioner considered petitioner's decision to have a jury trial, and

trial counsel did not object?

SCOPE OF REVIEW

In reviewing a claim of ineffective assistance of counsel, this Court applies

the following two-part test: (1) the applicant must show his or her counsel's

performance fell below an objective standard of reasonableness; and (2) but for

counsel's error, there is a reasonable probability the result of the trial would

have been different. Jackson v. State, 329 S.C. 345~ 495 S.E.2d. 768 (1998)

(applying Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d

674 (1984)). 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).

(1) trial counsel did not object to the testimony that petitioner

refused to cooperate with the police after he was arrested;

(2) trial counsel failed to move for a directed verdict of acquittal

on the charge of distribution of crack cocaine; and

(3) trial counsel failed to object when the trial court sentenced

him more harshly for exercising his right to a jury trial.

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LAW/ANALYSIS

Petitioner argues that relief should be granted because his trial counsel

failed to object when the trial judge, after sentencing petitioner, indicated he

considered petitioner's decision to have a jury trial as a factor in sentencing.

We agree.

After the trial court sentenced petitioner, petitioner's attorney² made a

motion to have the sentence reduced. The following colloquy took place between

the trial court and defense counsel:

[Defense Counsel]: It's for reduction, your honor. Your honor, as

you know Mr. Adams couldn't be here today and he - as Mr. Davis

- he's the one who represented Mr. Davis at trial and throughout

the period since Mr. Davis was sent to us by the clerk of court. Mr.

Adams has asked me to make this motion on Mr. Davis' behalf for

a reduction in the sentence. There was no plea bargain offered.

Mr. Adams, I understand, made several attempts to negotiate a

plea and law enforcement refused. This is the reason that this case

went to trial in the first place. There were two drug dealers who

did plead guilty during the time that your honor has been here with

us this past couple of weeks and they have received lower

sentences. I think one got seven years, J.J. J.J. got seven years

and Dubois got eighteen months and I believe both of those were

negotiated pleas....

[State]: May it please the court, your honor? Cory Fleming from

our office prosecuted the case at trial. I'm familiar with the case.

One reason an offer was never extended in the case was the only

discussion that Mr. Adams ever had with my office was for some

type of probationary sentence and our office didn't agree to that,

and it's accurate in regard to John Paul Thompson and Thomas

Jefferson Dubois as to the sentences that they received.

[Defense Counsel]: Mr. Davis has no prior drug convictions. I

mean, he does have a record, but he has no drug convictions.

motion was made. Instead, Mr. Adams had an assistant public defender stand

in his place to argue the motion.

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[Court]: Yes, ma'am, but he didn't plead guilty. Those other two

people, they pled guilty. They admitted what they had done and to

me that's the first step towards rehabilitation is admitting that you

did something wrong and you're pleading guilty and when a fellow

wants a trial which he's entitled to as a matter of law - and that's

fine.

[Defense Counsel]: I believe that when Mr. Adams discussed it

with Mr. Branham that Mr. Branham stated the fact that they

wanted to hang him high.

[Court]: Well, the jury found him guilty and I sentenced him and

I'm not going to change my sentence. Thank you very much.

In State v. Hazel, 317 S.C. 368, 453 S.E.2d 879 (1995), this Court held

that a trial judge abuses his discretion in sentencing when he considers the fact

that the defendant exercised his right to a jury trial. In Hazel, the trial judge

gave the following response to the defendant's request for sentencing under the

Youthful Offender Act ("YOA"):

Well, it's one thing, if he'd pled guilty, I'd have considered that, but

taking into consideration the age and where he was and the time

it was, the sentence of the court is you be confined to the State

Board of Corrections for a period of fifteen years and pay a fine of

twenty-five thousand dollars.

Hazel, 317 S.C. at 369, 453 S.E.2d at 879. The Court held that the trial judge

abused his discretion in relying on defendant's exercise of his right to a jury

trial as weighing against sentencing under the YOA.

One of the cases relied on by this Court in Hazel was the North Carolina

Supreme Court opinion in State v. Pavone, 410 S.E.2d 1 (N.C. 199 1). In Pavone,

the trial judge made the following comments when sentencing the defendant:

The jury has found you guilty in a trial. I understand that there

were negotiations with a view toward reaching an agreement with

respect to your verdict and sentencing before the trial that were not

productive, and I understand and appreciate that, but you must

understand that having moved through the jury process and having

been convicted, it is a matter in which you are in a different

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posture....

Pavone, 410 S.E.2d at 446.

In the instant case, the PCR judge found petitioner's trial counsel was not

ineffective for failing to object to the trial court's comments. The PCR judge

concluded that the trial court's remarks in the transcript were speculative and

could just as easily lead a reasonable person to a contrary conclusion. We

disagree.

In the above colloquy, defense counsel argued to the trial court that

similarly situated defendants had received lower sentences than petitioner. In

response to this argument, the trial judge unequivocally stated that the other

defendants had, in fact, pled guilty. The trial judge further expressed his

preference for guilty pleas by explaining that such admissions of responsibility

were the first steps toward rehabilitation. We find these statements clearly

revealed that the trial judge, in sentencing petitioner, improperly considered

petitioner's decision to proceed with a jury trial. See Hazel, supra.

CONCLUSION

Based on the foregoing, we REVERSE the PCR court's denial of relief.

FINNEY, C.J., MOORE, WALLER, and BURNETT, JJ., concur.

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