Criminal Practice – Proposed Order of Dismissal – Ineffective Assistance of Counsel

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The PCR court did not err in requesting proposed orders from the parties after remand or in adopting the State’s proposed order

We affirmed the decision of the PCR court.

This lengthy death penalty post-conviction relief proceeding began in 2007, and the PCR court denied relief in 2010. In 2014, we remanded to the PCR court for further proceedings, after which the PCR court again denied relief. We granted Petitioner’s petition for a writ of certiorari to review the PCR court’s decision. Petitioner, who was convicted of murdering his estranged wife, raised issues concerning the PCR court’s signing of a proposed order submitted by the State, and he raised issues concerning trial counsel’s preparation and presentation of his mitigation case during the penalty phase of his jury trial.

The following issues were before us: 1. Did the PCR court disobey this Court’s order and violate state law and Petitioner’s constitutional rights by adopting the State’s proposed order of dismissal “under circumstances showing the PCR court failed to consider Petitioner’s grounds for PCR and did not even read the proposed order before signing it”? 2. Did trial counsel provide ineffective assistance by failing to properly investigate and present an adequate mitigation defense?

We held the PCR court did not err in requesting proposed orders from the parties after remand or in adopting the State’s proposed order. We believe Petitioner was aware of and had ample opportunity to respond to the State’s proposed order. The PCR court’s post-remand statements at the hearing on Petitioner’s motion to reconsider establish the PCR court sufficiently reviewed the State’s proposed order before issuing the amended PCR order. Thus, the record demonstrates the PCR court adopted the State’s proposed order only after carefully reviewing the State’s initial proposed order. Therefore, the PCR court did not adopt the amended order in violation of Petitioner’s constitutional rights or South Carolina law. We found no justification for a new PCR hearing and the PCR court did not err in signing the amended PCR order.

Finally, any deficiencies in trial counsel’s investigation and presentation of a mitigation defense did not prejudice Petitioner. Even if trial counsel had secured a more robust mitigation investigation, and even if trial counsel had presented the mitigation evidence Petitioner presented during the PCR hearing, it is not reasonably likely the jury would have recommended a sentence other than death. Petitioner has not made the requisite showing that trial counsel’s errors, if any, were so serious so as to deprive him of a trial whose result was reliable. Petitioner has not established “‘there is a reasonable probability that, absent [counsel’s] errors, the sentencer–including an appellate court, to the extent it independently reweighs the evidence–would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.’“

Affirmed in result.

Lindsey v. State of South Carolina (Lawyers’ Weekly No. 010-052-25, 72 pp.) (George C. James, J.) Appealed from Spartanburg County Circuit Court (Paul M. Burch, J.) Chief Appellate Defender Robert Michael Dudek, Appellate Defender David Alexander, and Appellate Defender Lara Mary Caudy, all of Columbia, for Petitioner. Attorney General Alan McCrory Wilson, Deputy Attorney General Donald J. Zelenka, and Senior Assistant Deputy Attorney General Melody Jane Brown, all of Columbia, and Solicitor Barry Joe Barnette, of Spartanburg, for Respondent. South Carolina Supreme Court