Criminal Practice – Constitutional – Ineffective Assistance Claim – PCR – Last-Minute Charge – Expired Plea Offer

Holding: If trial counsel had been successful in his attempt to “keep out” a weapons indictment that was not served on defendant until the day of trial, the effect would have been the same as a continuance. Therefore, counsel was not deficient in failing to move for a continuance.

We reverse the post-conviction relief court’s grant of a new trial.

The state’s plea offer had expired by the time trial counsel was appointed to replace petitioner’s previous attorney, and petitioner made no showing that the solicitor would have agreed to renew the offer. As a result, petitioner has not shown that trial counsel was deficient in his handling of the expired plea offer, regardless of whether counsel discussed it with the solicitor.

Concurrence

(Few, J.) I write separately to note that petitioner could not prove prejudice arising from his first counsel’s performance because petitioner failed to demonstrate that he would have accepted the state’s plea offer.

Collins v. State (Lawyers Weekly No. 010-015-18, 11 pp.) (Donald Beatty, C.J.) (John Few, J., concurring) Appealed from Pickens County Circuit Court (James Barber III, J.) Alan Wilson & Karen Ratigan for the state; Robert Michael Dudek for petitioner. S.C. S. Ct.