Odom v. StateOdom v. State
- Reporters:
- , ,
- Before:
- Toal
Hеrbert Wayne Odom (“Odom”) appeals the post-conviction relief court’s order of dismissal. We reverse and remand.
Factual/Procedural Background
On August 31, 1993, Odom was arrested for distributing marijuana to an undercover officer within a half mile from the Busy Bee Day Care Center in Sumter County. A jury convicted Odom of one count of distribution on December 1, 1993. The presiding judge imposed a five year sentence and a fine of $5,000. On December 3, 1993, Odom pled guilty to a second count of distribution and the presiding judge imposed a
On December 18, 1995, Odom filed a pro se post-conviction relief (“PCR”) application alleging ineffective assistance of counsel. The PCR judge summarily dismissed Odom’s application for failing to file within the one-year statute of limitations. 1
Odom’s first application for PCR was dismissed prior to the filing of this Court’s opinion in
Peloquin
on April 15, 1996. In
Peloquin
this Court held that PCR applicants convicted before July 1, 1995, the effective date of
On June 18, 1997, Odom filed a second
pro se
PCR application alleging: (1) ineffective аssistance of counsel; and (2) that his first PCR application was erroneously dismissed.
2
Odom argued he should be permitted to appeal the dismissal of his first PCR application pursuant to
Austin v. State,
305 S.C. 453, 409 S.E.2d 395 (1991). Under
Austin,
a defendant can appeal a denial of a PCR application after the statute of
The PCR judge summarily dismissed Odom’s second PCR application for failure to comply with the one-year statute of limitations as mandated by
(A) December 1, 1993 and December 3, 1993, Odom was convicted of the drug offenses and did not appeal;
(B) December 18, 1995, Odom filed his first PCR application;
(C) February 9, 1996, the PCR judge summarily dismissed Odom’s first PCR application;
(D) June 18, 1997, Odom filed his second application for PCR;
(E) August 25, 1997, the PCR judge summarily dismissed Odom’s second PCR application;
(F) September 12, 1997, Odom appealed the secоnd summary dismissal.
Issues
(1) Does Austin v. State, 305 S.C. 453, 409 S.E.2d 395 (1991) apply when a post-conviction relief applicant was never appointed counsel?
(2) Does the statute of limitations for post-conviction relief applicatiоns,
Law/Analysis
I. Austin v. State
Odom argues the PCR judge erred by summarily dismissing his second PCR application which asserted a valid claim to an evidentiary hearing on his right to appellate review under Austin v. State. We agree.
This Court has allowed successive PCR applications where the applicant hаs been denied complete access to the appellate process. Austin v. State, 305 S.C. 453, 409 S.E.2d 395 (1991). Under the PCR rules, an applicant is entitled to a full adjudication on the merits of the original petition, or “one bite at the apple.” Aice v. State, 305 S.C. 448, 452, 409 S.E.2d 392, 395 (1991). This “bite” includes an applicant’s right to appeal the denial of a PCR application, and the right to assistance of counsel in that appeal. See Aice, 305 S.C. at 448, 409 S.E.2d at 392.
An
Austin
apрeal is used when an applicant is prevented from seeking appellate review of a denial of his or her PCR application, such as when an attorney fails to seek timely review.
See Aice,
305 S.C. at 448, 409 S.E.2d at 392;
Hope v. State,
328 S.C. 78, 492 S.E.2d 76 n. 1 (1997) (permitting an
Austin
aрpeal where original PCR counsel failed to appeal from the first denial of PCR). In
Austin,
the defendant never received a full procedural “bite at the apple” because he was
A PCR applicant is entitled to an Austin appeal if the PCR judge affirmatively finds either: (1) the applicant requested and was denied an opportunity to seek appellate review; or (2) the right to appellate review of a рrevious PCR order was not knowingly and intelligently waived. See King, 308 S.C. at 348, 417 S.E.2d at 868. If the PCR court finds an applicant was denied his right to appeal, the applicant can petition for certiorari and this Court will review whether the рetitioner was prejudiced by the failure to obtain appellate review. Id.; see King, 308 S.C. at 349, 417 S.E.2d at 868 (outlining the procedure used to seek review pursuant to Austin v. State); Wicker v. State, 310 S.C. 8, 425 S.E.2d 25 (1992).
In this case, Odom never received a complete “bite at the apple” because both of his PCR applications were summarily dismissed before he was appointed legal counsel. An applicant has a right to an appellate counsel’s assistance in seeking review of the denial of PCR.
See Austin,
305 S.C. at 454, 409 S.E.2d at 396; Rule 71.1(g), SCRCP. Under the PCR rules, a court will appoint an attorney to a PCR applicant if: (1) an evidentiary hearing is required; or (2) the applicant is indigent and wants to file an appeal.
See Whitehead v. State,
310 S.C. 532, 426 S.E.2d 315 (1992); Rule 71.1(d), (g), SCRCP. Since Odom filed both his PCR аpplications
pro se,
he never received the benefit of an attorney’s advice. The record does not indicate whether Odom was advised of his right to appeal or of the statute of limitation for an appeal. In order to effectuate an applicant’s right to appeal a PCR
Because Odom was entitled to the assistance of appellate counsel during PCR, we reverse the PCR judge’s order of dismissal and remand for an еvidentiary hearing on the issue of whether Odom knowingly and intelligently waived his right to appellate counsel. Austin, 305 S.C. at 454, 409 S.E.2d at 396. Odom will be entitled to an Austin appeal if it is determined that he did not knowingly and intelligently waive his right to appellate counsеl. Id. Odom can then petition for certiorari and this Court will review whether he was prejudiced by his failure to obtain review of a meritorious issue. Id.
II. Statute of Limitations
The one-year statute of limitations for PCR applicatiоns is not applicable to appeals filed pursuant to
Austin v. State.
Under
Odom’s
Austin
appeal is attacking the PCR
procedure
used in his case, not the
merits
of his sentence so the one-year statute of limitations,
Conclusion
We REVERSE the PCR judge’s order and REMAND for a new PCR hearing. We also recommend that counsel be appointed to Odom for the new PCR hearing.
FINNEY, C.J., MOORE, WALLER and BURNETT, JJ., concur.
Notes
. Under
. Odom argues the following in his application:
Petitioner’s application was filed within a year of the effective date of the statue [sic] and the PCR judge therefore erred in dismissing petitioneres [sic] application. Accordingly, the order of the PCR judge should be reversed and this matter remanded for further proceedings.
This issue, however, is not properly preserved for appeal. Only final judgments or decisions may be reviewed by this Court in PCR actions.
. Rule 71.1 (g), SCRCP states:
If an apрlicant desires to appeal the trial court’s decision and contends he is indigent, the trial court, if satisfied that he is indigent, shall appoint counsel for the appeal. Such counsel may be the same counsel who represented the applicant in the trial court on his application. If, for good cause shown, appointed counsel is permitted to withdraw, the trial court shall appoint new counsel.