Harden v. State, 602 S.E.2d 48

602 S.E.2d 48

S.C.

2004

Justice BURNETT:

Wе granted certiorari to review the denial of Benjamin Harden’s (Petitioner’s) second application for post-conviction relief (PCR). We granted Petitioner’s first application for PCR, which was denied after a hearing, and dismissed his petition for failure of counsel to perfect the appeal. Pеtitioner’s motion to reinstate the appeal was denied.

Petitioner’s second PCR application seeks review, pursuant to Austin v. State, 305 S.C. 453, 409 S.E.2d 395 (1991), of the denial of his PCR аpplication. The PCR judge found Petitioner was entitled to belated review of the denial of his first PCR application. Given the unique circumstances presеnted, we granted certiorari and directed Petitioner to address the question on which this Court originally granted certiorari.

FACTUAL BACKGROUND

Petitioner was indicted for one сount of trafficking crack cocaine by conspiracy between April 1, 1997, and September 23, 1997, in violation of S.C.Code Ann. § 44-53-375(C)(3) (2002) and four counts of distribution of crack cocaine, in violation of S.C.Code Ann. § 44-53-375(B)(l) (2002). Each count of distribution occurred between April 1, 1997, and September 23, 1997. On each occasion Petitioner sold crack cocaine to undercover agents or witnesses. On January 5, 1998, Petitioner pled guilty to trafficking and to four counts of *408distribution. The trial judge sentencеd Petitioner to twenty-years for trafficking ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and concurrent fifteen-year sentences for each count of distribution.

ISSUE

Was plea counsel ineffective for failing to object to and advise Petitioner his convictions for both trafficking crack cocaine based on conspiracy and the four distribution сharges would violate double jeopardy?

ANALYSIS

Petitioner argues his convictions violate double jeopardy principles because all of the distributiоn counts occurred during the period encompassed by the trafficking indictment. He argues PCR counsel was ineffective in failing to raise the issue. We disagree.

A defendant who pleads guilty on the advice of counsel may only attack the voluntary and intelligent character of the plea by showing (1) counsel’s rеpresentation fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for, counsel’s errors, thе defendant would not have pled guilty, but would have gone to trial. Hill v. Lockhart, 474 U.S. 52, 56-57, 106 S.Ct. 366, 369, 88 L.Ed.2d 203, 208 (1985); McCray v. State, 317 S.C. 557, 455 S.E.2d 686 (1995). Petitioner bears the burden of proving both attorney error and prejudice. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

There is no statutory law or judicial precedent in this State which holds a conviction for both conspiracy and the substantive offense relating to the conspiracy, in violation of the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍trafficking statute, constitutes double jeopardy. An attorney is not required to anticipate potential changes in the law which are not in existence at the time of the conviction. Gilmore v. State, 314 S.C. 453, 457, 445 S.E.2d 454, 456 (1994) overruled on other grounds by Brightman v. State, 336 S.C. 348, 520 S.E.2d 614 (1999). Therefore, Petitioner’s counsel was not deficient in failing to advise Petitioner or object to Petitioner’s sentencing on the double jeopardy issue.

*409Petitioner relies on Matthews v. State, 300 S.C. 238, 387 S.E.2d 258 (1990). In Matthews, we concluded possession with intent to distribute marijuana is a lesser included offense of trafficking in marijuana when the trafficking charge is based on possession. Therefore, we held a defendant may not be convicted of both possession with intent to distribute and trafficking based on possession. Where possession of an identical amount of marijuana would sustain convictions for both possession with intent to distribute and trafficking based upon possession, the General Assembly did not intend to permit punishment under both statutory provisions.1

The present case is distinguishable. In Matthews, the convictions at issue were based on a singlе act of possession. A review of the record shows that in this case the trafficking conviction was based on a broader conspiracy than the individuаl transactions which supported the distribution charges.

When examining issues related to a guilty plea, it is appropriate to consider the entire reсord, including the transcript of the guilty plea, and the evidence presented at the PCR hearing. Anderson v. State, 342 S.C. 54, 535 S.E.2d 649 (2000). The solicitor’s comments at the plea hearing demonstrаte ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the factual circumstances of this case are unlike those in Matthews. At the plea hearing, the solicitor stated the distribution indictments were all based on аudio-taped drug transactions. Regarding the trafficking indictment, however, the solicitor stated:

[T]his is a hardened drug family or drug network run by [Petitioner]____ [F]or at least the last six оr seven years [Petitioner] and his family have been probably the most dangerous and biggest nuisance that Richland County has had. [Petitioner] had no less than eight to ten people that worked directly "with him ... He had a number of trailers where he would sell crack cocaine out of. They set up a videotape оn [March 10, 1997] and it worked for 29 days ... during the daylight hours ... and over 424 visits were made *410to that one trailer alone that were drug related ... We have audiotape of [Pеtitioner] talking about buying a kilo [and] how he was going to make it and turn it into crack ... [On May 18, 1997], one of our state’s witnesses ... saw [Petitioner] with approximately a kilogrаm of cocaine. There are also audiotapes of [Petitioner’s] sisters; again a family business, where they talk about how to make good crack cocaine.

The solicitor’s statements demonstrate the trafficking by conspiracy charge was not based solely on the four instances of distribution fоr which Petitioner was indicted. Instead, the trafficking charge was based on a pattern of unlawful drug activity over the course of a six-month period.

In sum, neither Matthews, supra, nor any other case, holds Petitioner’s conviction for conspiracy to traffic cocaine and the four counts of distributing cocaine violate ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍double jeopardy. Therefore, counsel was not deficient in failing to advise his client on the issue or object to the sentence imposed.

Although, unnecessary for resolution of this case, in the interest of judicial economy, we address the underlying double jeopardy issue. The double jeopardy clauses оf the United States and South Carolina Constitutions protect against multiple punishments for the same offense. State v. Nelson, 336 S.C. 186, 519 S.E.2d 786 (1999). A threshold inquiry in this case is whether the same act is involved in different charges. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Trafficking may be accomplished by several means, including conspiracy.2 Conspiracy is a separate offense from the substаntive offense, which is the object of the conspiracy. A defendant may be separately indicted and convicted of both the conspiracy, and the substan*411tive offenses committed in the course of the conspiracy. State v. Gordon, 356 S.C. 143, 149, 588 S.E.2d 105, 108 (2003).3

CONCLUSION

For the foregoing reasons, we hold (1) counsel was not ineffective in failing to advise his client or in failing to object ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to the double jeopardy issuе and (2) there is no underlying double jeopardy violation supporting Petitioner’s claim.

AFFIRMED.

TOAL, C.J., MOORE, WALLER and PLEICONES, JJ., concur.

Notes

. The Court did not apply the test set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932). The Blockburger rule is not controlling when legislative intent is clear from the face of the statute or legislative history. Garrett v. United States, 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985).

. S.C.Code Ann. § 44-53-375(C) states,

A person who knowingly sells, manufactures, delivers, purchases, or brings into this State, or who provides financial assistance or othеrwise aids, abets, attempts, or conspires to sell, manufacture, deliver, purchase, or bring into this State, or who is knowingly in actual or constructive possession or who knowingly attempts to become in actual or constructive possession of ten grams or more of ice, crank, or crack cocaine ... is guilty of a felony which is known as "trafficking in ice, crank, or crack cocaine”....

. Petitioner’s reliance on our holding in Harris v. State, 349 S.C. 46, 562 S.E.2d 311 (2002) is misplaced. The issue in Harris was whether conspiracy to traffic was properly classified as a violent offense. South Carolina law provides drug trafficking is a violent offense. We concluded because conspiracy to traffic is one way to traffic drugs under the relevant statutes, conspiracy to traffic cocaine was a violent crime. Since the facts in Petitioner's case do not implicate Harris, it has no bearing on Petitioner's double jeopardy issue.