PCR - defense lawyer has a duty to advise client as to lesser included offenses
The South Carolina Court of Appeals held today in Pelzer v. State that it is ineffective assistance for defense counsel not to advise his or her client as to lesser included offenses prior to entering a guilty plea.
Pelzer was charged with first-degree burglary, attempted second-degree arson, criminal domestic violence of a high and aggravated nature (CDVHAN), and violation of a family court restraining order. Ultimately he pled guilty to second-degree burglary, attempted second-degree arson, and violation of a family court restraining order, and received a sentence of 15 years. The CDVHAN charge was dismissed.
The PCR court granted relief in this case, and the Court of Appeals affirmed, because Pelzer's lawyer failed to advise him of the lesser included offense of attempt to burn, which carried a potential sentence of 0-5 years (less than attempted second degree arson). The reasoning is that if Pelzer had known about the existence of the attempt to burn statute, he may have decided not to plead guilty and taken the case to trial instead.
I am not sure where this leaves Pelzer, as the Court granted post conviction relief as to the arson charge only, allowing the remaining convictions to stand, and the Court does not say what Pelzer's individual sentence was for each charge, only that, at the plea, he received a total of 15 years on all charges. If he received 15 years on the burglary second degree charge at the plea, he is still in the same place he started and it would make no sense to proceed to trial on the arson charge.
At any rate, the holding of the Court and the message that this case is meant to convey is that, before advising a client as to whether they should proceed to trial or accept a plea offer, defense counsel must ensure that they advise their client as to every possible lesser included offense as to each of their charges, and to not do so may constitute ineffective assistance.
