THE STATE OF SOUTH CAROLINA

In The Supreme Court

Richard Charles

Johnson, Petitioner,

v.

William D. Catoe,

Director, Department of

Corrections, and Charles

M. Condon, Attorney

General of South

Carolina, Respondents.

IN OUR ORIGINAL JURISDICTION

Opinion No. 24991

Heard June 23, 1999 - Filed August 23,1999

QUESTION ANSWERED

John H. Blume, of Ithaca, New York; and David P. Voisin,

of Center for Capital Litigation, of Columbia, for petitioner.

Attorney General Charles M. Condon, Chief Deputy Attorney

General John W. McIntosh, Assistant Deputy Attorney General

Donald J. Zelenka, and Senior Assistant Attorney General

William Edgar Salter, III, all of Columbia, for respondents.

David I. Bruck, of Columbia, for amici curiae S.C. Association of

Criminal Defense Lawyers and S.C. Public Defenders Association.

MOORE, A.J.: We have accepted this case in our original

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jurisdiction to consider whether our decision in Whetsell v. State, 276 S.C.

295, 277 S.E.2d 891 (1981), procedurally bars collateral review of guilt

phase issues raised by a capital defendant who admits guilt during the

sentencing phase of trial. We hold it does not.

FACTS

In 1985, petitioner Johnson fatally shot a motorist, Dan Swanson,

with whom he had hitched a ride. Petitioner concealed the body in the

back of the victim's recreational vehicle and continued driving. When

Trooper Bruce Smalls stopped petitioner for driving erratically, petitioner

shot him to death.

In February 1986, petitioner was convicted and sentenced to death in

Jasper County for the murder of Trooper Smalls. This conviction was

reversed on appeal. State v. Johnson 293 S.C. 321, 360 S.E.2d. 317

(1987).¹Petitioner was retried and again sentenced to death. This

sentence was upheld on appeal. State v. Johnson, 306 S.C. 119, 410

S.E.2d 547 (1991), cert. denied, 503 U.S. 993 (1992).

Petitioner sought post-conviction relief (PCR) on several grounds. In

its 1994 order, the PCR court addressed petitioner's issues on the merits

and denied relief. On two issues, it ruled in the alternative that relief

was procedurally barred because petitioner had admitted his guilt during

his statement to the jury in the sentencing phase of his trial. The PCR

court cited Whetsell as support for this procedural bar. Petitioner sought

review in this Court but did not challenge the PCR court's Whetsell

ruling. We denied review.

In December 1996, petitioner filed a federal habeas corpus action in

federal district court. The district court concluded petitioner's guilt phase

issues were procedurally barred citing the PCR court's ruling under

Whetsell because this was an adequate and independent state procedural

rule. Further, it found relief should be denied on the substantive issues in

any event. On appeal, a two-judge majority of the Fourth Circuit Court of

Appeals affirmed in an unpublished opinion with one dissenter. Johnson

v. Moore, 1998 WL 708691 (4th Cir. 1998). The majority agreed with the

district court's application of Whetsell and in the alternative affirmed on

robbery for the death of Dan Swanson and was sentenced to life plus twenty

five years. Only the Jasper County conviction is involved in this case.

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the merits of the issues raised.

Petitioner then filed this petition for habeas corpus raising the

procedural question whether Whetsell precludes collateral review and

alleging several substantive grounds for relief. We deny relief on the

substantive grounds raised in the petition for habeas corpus² but accept

consideration of the Whetsell issue because it is an important one in

statewide capital litigation.

DISCUSSION

Whetsell is a guilty plea case in which PCR was granted on the

ground counsel was ineffective for failing to move to suppress evidence. In

reversing the grant of relief, this Court cited State v. Sroka, 267 S.C. 664,

230 S.E.2d 816 (1976), for the proposition that "review of a trial error is

unnecessary where a defendant admits in open court after his conviction

that he is guilty." 277 S.E.2d at 892: We then concluded: "Here, [the

PCR applicants] not only reiterated their guilt at the post conviction

hearing, but stated they would plead guilty again if granted a new trial."

Id. In the case now before us, the PCR court and the federal courts

agreed with the State that this language in Whetsell bars a capital

the merits by the PCR court and/or the federal courts. Although the

dissenter in the Fourth Circuit opinion complains that petitioner's alleged

Brady violation regarding witness Hess was never addressed, the majority

opinion in fact addresses it. Johnson v. Moore, supra, at 9-10. Moreover, we

agree with the majority's conclusion in that case that the evidence in

question was not material. Johnson admitted his guilt for the murder of

Swanson when he pled guilty to that crime in Clarendon County. In light

of this fact, the Fourth Circuit found:

We cannot believe that a jury Would have found Hess' position

that Johnson was not responsible for the Swansen (sic) murder--a

murder he himself had admitted--to be exculpatory with respect

to Trooper Smalls' murder, especially in view of the fact that the

jury was aware that Hess had changed her story on several

previous occasions.

Id. at 10. We agree that petitioner has failed to establish the materiality

required to prove a Brady violation. See United States v. Bagley, 437 U.S.

667 (1985). We decline to revisit petitioner's remaining substantive issues.

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defendant who admits his guilt at sentencing from collateral review of

guilt phase errors. This is an incorrect reading of Whetsell.

The operative fact in Whetsell is not the admission of guilt but the

fact that the PCR applicants in that case stated they would plead guilty

again if granted a new trial.³ 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). Thus, the PCR applicants in Whetsell could

not prevail on their claims of ineffectiveness because they failed to meet

the second prong, or prejudice prong, of this analysis.

In Craddock v. State, 327 S.C. 303, 491 S.E.2d 251 (1997), we.

specifically rejected the State's contention that Whetsell barred collateral

review. The Craddock case distinguishes Whetsell on the ground Craddock

stated he would not have pled guilty but for counsel's error. Unlike the

applicants in Whetsell, Craddock was therefore able to satisfy the

prejudice prong despite his admission of guilt and, accordingly, Whetsell

did not apply. 491 S.E.2d at 451-52.⁴

CONCLUSION

In conclusion, Whetsell does not stand for the proposition that a

defendant who admits his guilt is barred from collaterally attacking his

misplaced since Sroka is a direct appeal employing a harmless error analysis

and not a collateral attack on a conviction.

⁴The Fourth Circuit majority in Johnson v. Moore, supra, struggled with

Craddock and concluded it was merely a "refinement" of the Whetsell rule in

that it allowed the defendant to collaterally attack his guilty plea because the

alleged error went to the voluntariness of the plea. In fact, a PCR applicant

in such a case must still satisfy the prejudice prong on collateral attack and

Whetsell would still apply. See Gibson v. State, Op. No. 24914 (S.C. Sup. Ct.

filed March 8, 1998); Carter v. State, 329 S.C. 355, 475 S.E.2d 773 (1998)

(PCR applicant challenging voluntariness of plea must show that but for

counsel's error he would not have pled guilty). Craddock simply confirms

that application of Whetsell depends upon whether or not a PCR applicant

has stated he would plead guilty anyway.

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conviction. Whetsell stands only for the narrow proposition that a PCR

applicant who has pled guilty on advice of counsel cannot satisfy the

prejudice prong on collateral attack if he states he would have pled guilty

in any event. Accordingly, Whetsell does not bar a capital defendant who

admits his guilt at sentencing from challenging guilt phase errors on

collateral attack.

QUESTION ANSWERED.

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

concurring in part and dissenting in part in a separate opinion

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FINNEY, C.J.: I respectfully concur in part and dissent in part. I

concur with the majority opinion insofar as it addresses and decides the only

issue before the Court, that Whetsell v. State, 276 S.C. 295, 277 S.E.2d 891

(1981), does not bar collateral review of guilt phase issues when a capital

defendant admits guilt^1d during the sentencing phase of his trial. I dissent,

however, from that part of the majority opinion which gratuitously addresses

the merits of petitioner's substantive Brady claim, and incorrectly holds the

suppressed evidence was not material. I would simply omit footnote 2.

hold that petitioner's penalty phase statement was an admission of guilt.

See State v. Johnson, 306 S.C. 119, 410 S.E.2d 547 (1991).

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