401 S.E.2d 159 | S.C. | 1991
Lead Opinion
Petitioner was convicted of burglary and sentenced to life imprisonment in 1982. On direct appeal his conviction was affirmed pursuant to Supreme Court Rule 23. This appeal is from the subsequent denial of post-conviction relief (PCR). We reverse and remand for a new trial.
Petitioner was indicted for burglary under S.C. Code Ann. § 16-11-310 (1976)
Petitioner sought PCR claiming he was prejudiced by counsel’s deficient performance. The PCR judge found no preju
A recommendation of mercy rests entirely in the discretion of the jury and may be exercised independently of whether the evidence warrants it. State v. Chasteen, 228 S.C. 88, 88 S.E. (2d) 880 (1955). In this case, the trial judge informed the jury only that petitioner would receive a life sentence “unless you, the members of the jury, by a special verdict recommend him to the mercy of the court.” This charge, though not erroneous absent a request for further instruction, did not remedy counsel’s total failure to argue for mercy. Cf. State v. Worthy, 239 S.C. 449, 123 S.E. (2d) 835 (1962) (if requested, the trial judge must charge that a recommendation of mercy may be given for any reason at all). On the facts presented here, we find petitioner was prejudiced in sentencing by counsel’s deficient performance. Cf. State v. McGee, 268 S.C. 618, 235 S.E. (2d) 715 (1977) (probability of prejudice from failure to allow jury to determine whether to recommend mercy).
In Watson v. State, 287 S.C. 356, 338 S.E. (2d) 636 (1985), this Court remanded for a sentencing proceeding where a defendant pleaded guilty to burglary under former § 16-11-310 and was not informed he had a right to have a jury determine whether to recommend mercy. Here, petitioner did not plead guilty, but rather a jury determined his guilt. As noted above, a bifurcated proceeding is not required in a non-capital case. Therefore, the determination of guilty and whether mercy should be recommended should be made in one proceeding by the same jury. We have found that petitioner’s counsel was ineffective for failing to argue for mercy to the jury which determined petitioner’s guilt. To remand for a sentencing proceeding only would be inconsistent with our finding that the determination of guilt and mercy recommendation should be made in one proceeding. Therefore, we find that petitioner is entitled to a new trial.
Reversed and remanded for a new trial.
This statute was amended in 1985.
Concurrence in Part
concurring in part, dissenting in part: