THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Edmund Goins, Respondent,

v.

State of South Carolina, Petitioner.

Appeal From Cherokee County
 Doyet A. Early, III, Circuit Court Judge

Unpublished Opinion No. 2010-UP-339
Submitted May 3, 2010 – Filed June 29, 2010  

REVERSED

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

Deputy Chief Appellate Defender Wanda H. Carter, of Columbia, for Respondent.

PER CURIAM:  This post-conviction relief (PCR) matter arises out of Respondent Edmund Goins' conviction for assault and battery with intent to kill (ABWIK) and two convictions of assault and battery of a high and aggravated nature (ABHAN), based on three indictments for ABWIK.  This court granted the State's petition for certiorari to address whether the PCR court erred in granting relief.  We reverse.[1] 

The State argues there is no probative evidence to support the finding that trial counsel was ineffective based on the combination of counsel's failure to present evidence regarding Goins' mental disorder and limited contact with Goins before trial.  Without deciding the ultimate reach of the cumulative error doctrine in the PCR context, we find it appropriate to resolve this case on the lack of prejudice.  See Porter v. McCollum, 130 S.Ct. 447, 455-56 (2009) ("We do not require a defendant to show that counsel's deficient conduct more likely than not altered the outcome of [the trial], but rather that he establish a probability sufficient to undermine confidence in that outcome.") (internal quotations omitted); Strickland v. Washington, 466 U.S. 668, 697 (1984) ("[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . .  If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed."); Lorenzen v. State, 376 S.C. 521, 535, 657 S.E.2d 771, 779 (2008) (holding that where none of the errors alleged are meritorious, the PCR court erred in finding the cumulative effect of the alleged errors established a claim of ineffective assistance of counsel).

At the PCR hearing, Goins asserted that he was bipolar and that trial counsel should have investigated Goins' diagnosis and requested a competency evaluation.  While Goins also testified at his criminal trial that he was bipolar and manic depressive, we note Goins did not put forth any evidence that he was either insane at the time of the assaults or incompetent at the time of trial.  See Jeter v. State, 308 S.C. 230, 233, 417 S.E.2d 594, 596 (1992) (affirming the denial of PCR where the petitioner failed to present live medical testimony at the PCR hearing to show "a reasonable probability that he was either insane at the time of the [incident] or incompetent at the time of [trial].") (internal quotation omitted); Daniel v. State, 282 S.C. 155, 158-59, 317 S.E.2d 746, 748 (1984) (reversing the grant of relief where there is no evidence showing that the failure of counsel to investigate the defendant's mental condition was prejudicial). 

Moreover, as to the relief granted on the ABWIK conviction, we find that the PCR court erred as a matter of law in determining that Goins was prejudiced by the failure to introduce the evidence at issue.  The PCR judge based his analysis upon the fact that a jury could interpret the applicant's conduct as impulsive and dangerous, but not with malice aforethought; thus, the court opined the jury could return a verdict of ABHAN, as opposed to the greater offense of ABWIK.  This partial responsibility analysis is tantamount to a recognition of the defense of diminished capacity, which we do not recognize in this state.  See Gill v. State, 346 S.C. 209, 220, 552 S.E.2d 26, 32 (2001) (upholding the trial court's refusal to charge diminished capacity where Gill argued his borderline intellectual capacity affected his ability to achieve the requisite mens rea for the crime charged because South Carolina does not recognize the diminished capacity defense); State v. Santiago, 370 S.C. 153, 162, 634 S.E.2d 23, 28 (Ct. App. 2006) (finding the trial judge properly excluded testimony that Santiago's Asperger's disorder caused him to fear for his life because South Carolina does not recognize the diminished capacity defense).  Thus, while acknowledging Goins testified at his criminal trial about his bipolar mental condition and his manic depression, we find Goins failed to establish a probability sufficient to undermine confidence in the outcome of the trial.  See Porter, 130 S.Ct. at 455-56.

As to the two ABHAN convictions, the PCR court erred in granting relief on Goins' two convictions for the lesser included offenses of ABHAN based on cumulative error, as there is no probative evidence of prejudice in the record to support those findings.  See Hutto v. State, 387 S.C. 244, 244, 692 S.E.2d 196, 197 (2010) (stating a PCR court's ruling should be upheld on appeal only if it is supported by any evidence of probative value in the record); Lorenzen, 376 S.C. at 535, 657 S.E.2d at 779. 

Based on the foregoing, the grant of post-conviction relief is

REVERSED.

FEW, C.J., THOMAS, and PIEPER, JJ., concur.

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