South Carolina Criminal Defense Blog

In Robinson v. State, decided earlier this week, the South Carolina Supreme Court held that it is ineffective assistance of counsel where plea counsel failed to challenge the use of a prior uncounseled magistrate court conviction to enhance a trafficking sentence.

On September 16, 2003, Petitioner was indicted on one count of trafficking crack cocaine. At the plea hearing, the State and the plea judge noted that Petitioner had a prior conviction for possession of marijuana from 2000. The plea judge informed Petitioner that, consistent with a second offense, the minimum sentence he could receive would be seven years and the maximum would be thirty years. Plea counsel did not object to the trafficking offense being treated as a second offense and Petitioner was sentenced to twenty years.

To be successful in a PCR claim based on ineffective assistance of counsel, Strickland v. Washington requires not only a finding of ineffective assistance of counsel, but also a finding of prejudice caused by the ineffectiveness; meaning a reasonable probability that the outcome would have been different but for the mistakes made by the trial lawyer.

The Court held that even though the sentence Robinson received, 20 years, was within the range for a trafficking 1st offense, prejudice was still shown from the error. The sentencing range for trafficking crack cocaine, 28 - 100 grams, 2nd offense is 7 to 30 years, and the sentencing range for trafficking crack cocaine, 28 - 100 grams, 1st offense is 7 to 25 years (S.C. Code Sec. 44-53-375), both are violent offenses, non-parolable, and the defendant must serve 85% of the time to which he is sentenced. But, whether the sentence received is within the sentencing range is irrelevant in showing the absence of prejudice (see Thompson v. State).

Under Nichols v. United States, a prior drug conviction cannot be used to enhance a sentence if it was uncounseled and if the defendant served any jail time on the prior conviction. Although Robinson was not immediately sentenced to jail on his prior magistrate level offense, he ended up serving jail time after he failed to complete community service. Because his plea lawyer failed to object to the use of the prior conviction to enhance his sentence to trafficking 2nd offense, Robinson's case is remanded, not for a new trial, but for re-sentencing.