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 Supreme Court

William Parson, Petitioner,

v.

State of South Carolina, Respondent.

ON WRIT OF CERTIORARI

Appeal From Charleston County
 John C. Few, Circuit Court Judge

Memorandum Opinion No. 2011-MO-004
Submitted December 1, 2010 – Filed January 31, 2011  

APPEAL DISMISSED

Daniel Lawrence Prenner, Prenner Marvel, P.A., of Charleston, for Petitioner.

Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Office of the Attorney General, of Columbia, for Respondent.

CHIEF JUSTICE TOAL:  Petitioner seeks a writ of certiorari from the denial of his application for post-conviction relief (PCR).

Since two members of this Court have determined that there is sufficient evidence to support the PCR judge's finding that petitioner did not knowingly and intelligently waive his right to a direct appeal, this Court grants a writ of certiorari to review the direct appeal issue pursuant to pursuant to Davis v. State, 288 S.C. 290, 342 S.E.2d 60 (1986).  We dispense with further briefing or argument regarding the direct appeal issue. 

As the direct appeal issue, petitioner argues that he was entitled to a directed verdict because the evidence was insufficient to support his magistrate court conviction for malicious injury to personal property.  He asserts that he is entitled to a new trial since it is impossible to adequately reconstruct the record to allow for a meaningful review of this direct appeal issue.  While we agree it is impossible to reconstruct the record of the magistrate court proceedings, we disagree that this entitles petitioner to a new trial.

The magistrate court conviction occurred in 1992.  The only record of this conviction is the Uniform Traffic Ticket, and it indicates that petitioner was sentenced to thirty days.  No return, transcript or audio tape apparently exists of the criminal proceeding.  The magistrate has no recollection of petitioner's case, although the magistrate did present some testimony about his general practice in criminal cases.  Therefore, we agree that it is impossible to adequately reconstruct the record of the proceedings before the magistrate court.

If it is impossible to adequately reconstruct the record to allow for meaningful appellate review, the general rule has been to grant a new trial.  State v. Ladson, 373 S.C. 320, 644 S.E.2d 271 (Ct. App. 2007) (timely appeal, but court reporter could not produce transcript due to a failure of the recording equipment).   Where, however, the inability to adequately reconstruct the record is due to some fault or unreasonable delay on the part of appellant, the appeal has instead been dismissed. Cf. State v. Serrette, 375 S.C. 650, 654 S.E.2d 554 (Ct. App. 2007) (tapes of trial destroyed during the ten year delay between trial in absentia and sentencing while appellant was a fugitive).

In the present case, petitioner waited over fourteen years after his conviction to seek a belated direct appeal.  After this period of delay, it should come as no surprise that it is impossible to adequately reconstruct the record.  Further, this delay is attributable to petitioner.  Under these circumstances, we hold that a new trial is not appropriate.  Instead, the belated appeal must be dismissed since it is impossible to review the directed verdict issue without an adequate record.

APPEAL DISMISSED.

BEATTY, KITTREDGE and HEARN, JJ., concur. PLEICONES, J., dissenting in a separate opinion.

JUSTICE PLEICONES:  I respectfully dissent, and would reverse petitioner's conviction for malicious injury to personal property due to the lack of a record for appellate review.

As the majority recognizes, petitioner's argument could well be barred by laches.  However, as we explained in Dearybury v. State, 367 S.C. 34, 625 S.E.2d 212 (2006), laches is an affirmative defense that must be pled or it is waived.  In my opinion, because the State did not raise laches as an affirmative defense at the PCR hearing, it is waived.

I would therefore find petitioner is entitled to a new trial pursuant to State v. Ladson, 373 S.C. 320, 644 S.E.2d 271 (Ct. App. 2007).

For the reasons given above, I respectfully dissent.