Criminal Practice – PCR – DNA Act – Belated Appeal – Ineffective Assistance

When an applicant for post-conviction DNA testing is prevented from seeking appellate review—such as when counsel fails to timely appeal—the applicant may file a petition for belated review.

We reverse the denial of petitioner’s second application for post-conviction relief and remand for further proceedings.

The right to appellate review of an order granting or denying post-conviction DNA testing under the Access to Justice Post-Conviction DNA Testing Act (DNA Act) is expressly authorized by statute; however, petitioner’s DNA counsel failed to timely serve notice of appeal of the denial of petitioner’s application for post-conviction DNA testing.

Because he lacked any other avenue to seek appellate review, petitioner filed a second PCR application. The court of general sessions denied the application, and petitioner appeals.

As we held in Austin v. State, 305 S.C. 453, 409 S.E.2d 395 (1991), we find Anders v. California, 386 U.S. 738 (1967), similarly applies to the DNA Act to safeguard an applicant’s statutory right to seek appellate review and entitles him to the assistance of appellate counsel. Because petitioner was unjustly prevented from seeking appellate review and deprived of his full “bite at the apple,” we must provide an avenue of relief akin to Austin that affords him the opportunity to obtain belated review.

We hold that an applicant for post-conviction DNA testing may file a petition for belated review when he is prevented from seeking appellate review, such as when counsel fails to seek timely review. Because an application for post-conviction DNA testing under the DNA Act must be filed with the clerk of court of the court in which the conviction or adjudication took place, the petition for belated review must also be filed in that court and request an evidentiary hearing. The petitioner will be entitled to belated review if the circuit court judge affirmatively finds either: (1) the petitioner requested and was denied an opportunity to seek appellate review; or (2) the right to appellate review was not knowingly and intelligently waived.

Unlike the Austin review procedure, the petitioner will not be required to establish prejudice under the standard outlined in Strickland v. Washington, 466 U.S. 668 (1984).

Petitioner’s allegation that his DNA counsel failed to timely serve the notice of appeal from the order denying his application for post-conviction DNA testing permits him to seek belated review in accordance with this opinion. Therefore, we remand the case to the court of general sessions for an evidentiary hearing on the issue of whether he requested and was denied an opportunity to seek appellate review or the right to appellate review was not knowingly and intelligently waived.

Mack v. State (Lawyers Weekly No. 010-021-21, 8 pp.) (Donald Beatty, C.J.) Appealed from Spartanburg County (Robin Stilwell, PCR Court Judge) Jessica Saxon for petitioner; Alan McCrory Wilson and Chelsey Faith Marto for respondent. S.C. S. Ct.