Criminal Practice – Plea Bargain – Enhancement – Paraphernalia Conviction – First Impression – Constitutional – Attorneys – Ineffective Assistance

Berry v. State. (Lawyers Weekly No. 010-049-09, 4 pp.) (John W. Kittredge, J.) Appealed from Cherokee County. (Doyet A. Early III, J.) S.C. S. Ct.
Holding: A drug paraphernalia conviction does not qualify as a prior offense for enhancement purposes under South Carolina law.
We reverse the denial of post-conviction relief, vacate the petitioner’s guilty plea and remand for reinstatement of all charges (including the charge dismissed as part of the plea bargain).
Pursuant to a plea bargain, the state dismissed a charge of possession with intent to distribute methamphetamine, and petitioner pled guilty to manufacturing methamphetamine, second offense. The plea was enhanced to a second offense by petitioner’s prior conviction of conviction of drug paraphernalia.
Whether a drug-paraphernalia conviction qualifies as a prior offense for enhancement purposes has not been decided by this court.
We hold that the legislature intended a prior offense to qualify for enhancement purposes only if the prior offense “relates to” one of the statutorily enumerated drugs. To construe a paraphernalia conviction as “relating to” drugs would be contrary to unambiguously expressed legislative intent and violate the rule of lenity.
We find counsel’s failure to even consider whether a paraphernalia conviction qualifies for enhancement, and so inform petitioner, fell below the standard of objective reasonableness. We therefore find plea counsel provided constitutionally deficient representation.
During the PCR hearing, petitioner repeatedly said that he would have gone to trial had he known that his paraphernalia conviction did not qualify as a prior offense for enhancement purposes. Petitioner has shown prejudice, and we grant him the relief he seeks.
Reversed and remanded.