Criminal Practice – Ineffective Assistance of Counsel – Prejudice Analysis

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There was no structural error because only the erroneous deprivation of the right to testify results in a structural error.

We affirmed the decision of the post-conviction relief (PCR) court.

Petitioner appealed denial of his application for PCR. Petitioner contended the PCR court erred in finding counsel was not ineffective for failing to immediately inform the trial court he wished to testify and moving to reopen the record. He contended counsel was deficient and he did not need to prove prejudice because this was a structural error pursuant to State v. Rivera, 402 S.C. 225, 741 S.E.2d 694 (2013). He argued counsel did not recognize the fundamental nature of a defendant’s right to testify and counsel’s failure to act created a structural error. However, even if counsel’s conduct was deficient, we did not agree that the deficiency caused a structural error. First, we acknowledged Rivera‘s holding that a trial court’s improper refusal to permit a defendant to testify is a structural error. However, the Rivera court acknowledged that “the right to present testimony is not without limitation.” Id. at 242, 741 S.E.2d at 703. In a footnote, the court clarified that its “findings should not be taken as a restriction of the trial court’s ability to constrain a defendant’s testimony based on a proper application of the evidentiary rules.” Thus, Rivera recognizes that there are situations in which a trial court may properly deny a defendant the right to testify, without causing a structural error. We found Petitioner’s case is an example of this principle. Here, Petitioner initially informed the trial court that he did not want to testify. Petitioner changed his mind overnight, after the defense rested and the parties and the court had begun discussing jury charges, but the trial court refused his request to testify. Notably, Petitioner raised this issue on direct appeal, and after considering Rivera, our court held that the denial of the right to testify in this case was not erroneous because “[t]he trial court was concerned that if it permitted [Petitioner] to testify after hearing its ruling on the voluntary manslaughter and self-defense jury charges and learning what supporting evidence the trial court said was missing, [Petitioner] would be able to fit his testimony into the required parameters for those charges.” Accordingly, this court found the trial court had “a legitimate ground for refusing to reopen the record” to permit Petitioner to testify and the trial court’s denial of Petitioner’s request to testify was not improper. Therefore, in contrast to Rivera, there was no structural error in this case because only the erroneous deprivation of the right to testify results in a structural error.

Petitioner’s contention now is slightly different—that if counsel had moved to reopen the record earlier, the trial court would have allowed the testimony. Indeed, the trial court itself appeared to consider that possibility in denying Petitioner’s request to testify. However, the standard here is whether counsel’s “representation amounted to incompetence under ‘prevailing professional norms,’ not whether it deviated from best practices or most common custom.” Moreover, courts “considering a claim of ineffective assistance must apply a ‘strong presumption’ that counsel’s representation was within the ‘wide range’ of reasonable professional assistance.” In the exchange with the trial court, counsel stated he had informed Petitioner “that in [his] opinion that matter has passed us by as based on his assertion to the [c]ourt that he wished to remain silent.” We cannot say that no reasonable attorney would have made that same calculation. Accordingly, we found counsel was not deficient. Normally, our finding that counsel was not deficient would end our inquiry. However, because Petitioner contended the PCR court erred in applying the Strickland standard to this issue and in response to the well-reasoned dissent, we addressed the question of prejudice.

Petitioner maintained the PCR court also erroneously conducted a prejudice analysis under the second prong of Strickland. He asserted that in doing so, the PCR court applied a harmless-error analysis to the denial of Petitioner’s right to testify, contrary to Rivera. Even if counsel’s alleged deficiency led to a structural error, it was not one that always renders a trial fundamentally unfair; therefore, Petitioner was still required to prove prejudice. Petitioner failed to prove he was prejudiced by counsel’s failure to immediately inform the trial court of his newfound desire to testify. We agreed with the PCR court that the trial court would not have changed its ruling, and, in any event, a jury was unlikely to find Petitioner’s version of events persuasive. Therefore, Petitioner failed to prove he was prejudiced by counsel’s delay in moving to reopen the record.

Affirmed.

Wright v. State of South Carolina (Lawyers’ Weekly No. 011-029-25, 45 pp.) (Matthew P. Turner, J.) Appealed from Horry County Circuit Court (William H. Seals, Jr., J.) J. Falkner Wilkes, of Oakland, Mississippi, for Petitioner. Senior Assistant Attorney General Mark Reynolds Farthing, of Columbia, for Respondent. South Carolina Court of Appeals