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S.C. Supreme Court Rules Counsel’s Failure to Recognize Ex Post Facto Issue in Advising Defendant to Accept Plea Deal Constituted IAC

by Dale Chappell

The Supreme Court of South Carolina found that counsel’s advice to a defendant to take a plea deal to avoid the State’s threat to use a new, harsher sentencing law if he refused to plead guilty was “clearly deficient.” Therefore, the Court reversed the post-conviction relief court’s dismissal of defendant’s application.

Michael Robinson was indicted in 2013 on charges of first-degree criminal sexual conduct (“CSC”) with a minor. The alleged conduct occurred between 1998 and 2000. Between 2001 and 2012, the CSC statute was amended by increasing the applicable sentencing range. The State offered “to let” Robinson plead guilty under the sentencing law in effect prior to the 2012 amendment (0 to 30 years imprisonment); the State warned that if he refused the plea deal he would be subject to the harsher sentencing range implemented by the 2012 amendment to the CSC sentencing statute (25 years to life imprisonment) if he went to trial.

Apparently unaware that the 2012 sentencing range was not applicable to Robinson under any circumstance due to the prohibition against ex post facto criminal laws, his lawyer advised him to accept the plea deal. Based on his lawyer’s advice, Robinson pleaded guilty.  

Robinson was sentenced to 25 years imprisonment, and the remaining charges were dismissed. There was no direct appeal, but he did file an application for post-conviction relief (“PCR”), arguing that his lawyer provided ineffective assistance of counsel (“IAC”) thereby rendering his guilty plea involuntary.

The PCR court held a hearing in which Robinson testified that he told his lawyer he “wanted to go to trial,” but that he trusted counsel’s advice to take the plea offer to avoid a life sentence. Counsel at the hearing admitted that “pretty much the entire time he said this had not happened and that he wanted a trial.”

Robinson also testified that counsel never informed him that the new, harsher law could not apply to him, and counsel admitted that he erroneously informed Robinson he would be subjected to the new law if he did not take the plea offer. When asked by the State at the hearing whether he had explained the sentencing ranges to Robinson, counsel responded, “No, I didn’t.”

Nevertheless, the PCR court dismissed Robinson’s application, inexplicably and inaccurately calling counsel’s advice to Robinson that he would face a life sentence if he rejected the plea “an accurate statement of the law.” The court further found that, despite counsel’s admissions in court that he failed to tell Robinson about the sentencing ranges, that counsel had properly reviewed the sentencing ranges with Robinson. The South Carolina Supreme Court agreed to hear his case.

In reversing the PCR court, the Supreme Court called its dismissal of Robinson’s PCR application “flatly contradicted by the record,” “troubling,” and “an error of law.” The Court explained that Robinson’s counsel was “clearly deficient” and that Robinson was prejudiced by counsel’s bad advice.

In its seminal IAC opinion in Strickland v. Washington, 466 U.S. 668 (1984), the U.S. Supreme Court held that a defendant has the right to the effective assistance of counsel under the U.S. Constitution’s Sixth Amendment, and that counsel is ineffective when his assistance falls below the professional norms and affects the outcome of the proceeding. The Court further held in Hill v. Lockhart, 474 U.S. 52 (1985), that to show IAC regarding the decision to plead guilty, a petitioner must show a “reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”

All of that occurred in Robinson’s case, the South Carolina Supreme Court determined. Counsel’s failure to recognize that the ex post facto clauses in both the U.S. and South Carolina Constitutions prohibited the application of the 2012 sentencing statute to Robinson resulted in him providing legal advice to Robinson that “manifestly fell below objectively reasonable professional norms,” the Court stated. “It is clear that Petitioner would not have pled guilty but for counsel’s erroneous sentencing advice,” the Court concluded.

A law that is imposed after an offense that increases the punishment for the offense cannot be applied to the earlier offense without violating the ex post facto clauses of the U.S. and South Carolina constitutions, which both prohibit an “ex post facto” law or one which retroactively increases the punishment for a crime. Jernigan v. State, 531 S.E.2d 507 (S.C. 2000). This same rule applies to sentencing schemes and is designed to ensure that defendants “have fair warning of applicable laws.” Peugh v. United States, 569 U.S. 530 (2013).

Robinson was accused of CSC offenses that occurred from 1998 to 2000, so the State’s threat to push for sentencing under the 2012 statute if he refused to plead guilty and insist on a trial was a completely empty one. His lawyer should have recognized that basic fact and advised Robinson accordingly. The one consequence that Robinson feared the most—a life sentence—was never even a possibility under the applicable sentencing statute in effect from 1998 through 2000, so he was never at risk of receiving a life sentence if he insisted on going to trial. The Supreme Court found that but for counsel’s erroneous legal advice, Robinson would not have pleaded guilty and would have insisted on a trial. Therefore, the Court concluded that Robinson received IAC and that he demonstrated prejudice since he would not have pleaded guilty absent the IAC.

Accordingly, the Supreme Court reversed the PCR court’s denial of Robinson’s PCR application. See: Robinson v. State, 810 S.E.2d 32 (S.C. 2018). 

 

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