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


Robert M. Watkins, Petitioner,

v.

State of South Carolina, Respondent.


ON WRIT OF CERTIORARI


Appeal from Greenville County
Victor Pyle, Jr., Circuit Court Judge
†Larry R. Patterson, Post Conviction Relief Judge


Memorandum Opinion No. 2008-MO-001
Submitted November 15, 2007 Ė Filed January 14, 2008†


REVERSED


Appellate Defender Robert M. Pachak, of South Carolina Commission on Indigent Defense, Division of Appellate Defense, of Columbia, for Petitioner.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General, Salley W. Elliott, Assistant Attorney General Karen Ratigan, all of Columbia, for Respondent.


PER CURIAM:† In this case, we granted certiorari to review the denial of Petitioner Robert M. Watkinsí application for post-conviction relief (PCR).† We reverse the PCR courtís order denying relief.†

The State alleged that Petitioner robbed a Chuck-E-Cheese restaurant at approximately 1:00 a.m.† At trial, Elena Pelzer, Petitionerís girlfriend, testified that on the night of the robbery, Petitioner left their apartment at 9:30 p.m. and returned at approximately 12:50 a.m.† Pelzer testified that shortly thereafter, they left the apartment to get food, but were stopped by police and arrested for the robbery.† During the jury charge conference, trial counsel requested an alibi instruction, but the trial court refused based on trial counselís failure to comply with Rule 5(e), SCRCrimP.[1]† The jury found Petitioner guilty, and the court of appeals dismissed Petitionerís direct appeal pursuant to Anders v. California, 386 U.S. 738 (1967).† State v. Watkins, Op. No. 2004-UP-406 (S.C. Ct. App. filed June 22, 2004).

Petitioner filed an application for PCR in which he alleged trial counsel was ineffective for failing to obtain an alibi instruction.† At the PCR hearing, trial counsel testified that he believed the letter to the solicitorís office complied with Rule 5(e)ís notice requirements.† The PCR court found trial counsel was not ineffective because his belief that he complied with the rule was ďwell foundedĒ and dismissed Petitionerís PCR application.† Petitioner argues to this Court that the PCR court erred in ruling trial counsel was not ineffective.† We agree.†

The burden of proof is on the applicant in post-conviction proceedings to prove the allegations in his application.† Butler v. State, 286 S.C. 441, 442, 334 S.E.2d 813, 814 (1985).† On appeal, the PCR courtís ruling should be upheld if it is supported by any evidence of probative value in the record.† Cherry v. State, 300 S.C. 115, 119, 386 S.E.2d 624, 626 (1989).

Because Pelzerís testimony showed that Petitioner was at a different place at the time of the robbery, he was entitled to an alibi charge.† State v. Shuler, 344 S.C. 604, 632, 545 S.E.2d 805, 819 (2001) (holding that if there is any evidence to support a charge, the trial court should grant the request).† Thus, trial counsel was deficient for failing to raise this argument to the trial court and obtaining an alibi instruction.† See Ford v. State, 314 S.C. 245, 442 S.E.2d 604 (1994) (holding that counselís rejection of an alibi charge when the defendant claims that he was in another place at the time of the commission of the criminal act constitutes deficient representation under an objective standard of reasonableness).† Moreover, Petitioner was prejudiced by the trial courtís failure to give an alibi instruction because there is a reasonable probability that the result of trial would have been different, as the State based its case against Petitioner entirely on circumstantial evidence.† See Riddle v. State, 308 S.C. 361, 363, 418 S.E.2d 308, 309 (1992) (holding that the failure to give an alibi charge, where the defendant claims to be at another place, is reversible error); Roseboro v. State, 317 S.C. 292, 294, 454 S.E.2d 312, 313 (1995) (noting that an alibi charge is considered especially crucial when the evidence is entirely circumstantial).†

Accordingly, we hold that trial counsel was ineffective and grant Petitioner relief.†

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


[1] Rule 5(e)(1), SCRCrimp, provides:

Upon written request of the prosecution stating the time, date and place at which the alleged offense occurred, the defendant shall serve within ten days, or at such time as the court may direct, upon the prosecution a written notice of his intention to offer an alibi defense. The notice shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom he intends to rely to establish such alibi.

The trial court denied trial counselís request for an alibi instruction because, although the notice stated that Pelzer would provide an alibi defense, it did not state the specific place that Petitioner claimed to have been at the time of the robbery.†