In 1984, at the time of Pressley's three housebreaking convictions, the Code defined "dwelling house" as "any house, outhouse, apartment, building, erection, shed or box in which there sleeps a proprietor, tenant, watchman, clerk, laborer or person who lodges there with a view to the protection of property," and "all houses, outhouses, buildings, sheds and erections which are within two hundred yards of it and are appurtenant to it or to the same establishment of which it is an appurtenance." S.C. Code § 16-11-10 (1983); see Padgett v. State, 324 S.C. 22, 29 n.2, 484 S.E.2d 101, 104 n.2 (1997). In 1984, the Code did not define the term "any house other than a dwelling house."
We agree. See Padgett v. State, 324 S.C. 22, 29 n. 2, 484 S.E.2d 101, 104 n. 2 (1997) (noting, under S.C. Code Ann. § 16-11-10, "dwelling" is defined as "any building in which a person sleeps or lodges and all other buildings within two hundredyards of it.") (emphasis added). Furthermore, the true test of an indictment's validity is not whether it could be made more definite and certain, but whether it contains the necessary elements of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet.
See Pruitt v. State, 423 S.E.2d 127, 128 n. 2 (S.C. 1992) (holding that "the general rule [is] that issues must be raised to, and ruled on by, the post conviction judge to be preserved for appellate review."). See also Padgett v. State, 484 S.E.2d 101 (S.C. 1997) (holding that issues not ruled on by the PCR court are not preserved for appeal). The court notes that the magistrate judge specifically noted that the issue of Petitioner's change in medication was also addressed in regard to Ground Two. (Report at 14 n.9).
See Pruitt v. State, 310 S.C. 254, 423 S.E.2d 127, 128 n. 2 (1992) ("the general rule [is] that issues must be raised to, and ruled on by, the post-conviction judge to be preserved for appellate review."). See also, Padgett v. State, 324 S.C. 22, 484 S.E.2d 101 (1997) (issues not ruled on by PCR court are not preserved for appeal). Thus, when considering a Johnson petition, the South Carolina Supreme Court considers only those issues raised by the Johnson petition, raised in any pro se brief or petition filed by the applicant, and those issues specifically ruled on by the PCR court.
Thus, counsel's failure to object did not constitute a valid trial strategy. Cf. Padgett v.State, 324 S.C. 22, 484 S.E.2d 101 (1997) (finding trial counsel's failure to challenge first-degree burglary indictment did not constitute valid trial strategy where counsel did not recognize the distinction between a "barn" and a "dwelling" for the purposes of first-degree burglary). Having found that trial counsel's performance was deficient, the question becomes whether Bailey was prejudiced by counsel's errors.
Where there has been a guilty plea, the applicant must prove counsel's representation fell below the standard of reasonableness and, but for counsel's unprofessional errors, there is a reasonable probability he would not have pled guilty but would have insisted upon going to trial. Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Padgett v. State, Op. No. 24598 (S.C. Sup. Ct. filed April 7, 1997) (Davis Adv. Sh. No. 10 at 13). The record supports the PCR judge's conclusion Johnson's performance was deficient.
2. As to whether trial counsel was ineffective for eliciting testimony from the investigator that she believed the victim was telling the truth and not moving for a mistrial in response to the testimony: Strickland v. Washington, 466 U.S. 668, 687 (1984) (providing that to establish a claim of ineffective assistance of counsel, a PCR applicant must prove trial counsel's performance was deficient and the deficient performance prejudiced the applicant's case); State v. Herring, 387 S.C. 201, 216, 692 S.E.2d 490, 498 (2009) ("Generally, a curative instruction to disregard the testimony is deemed to have cured any alleged error."); Padgett v. State, 324 S.C. 22, 27, 484 S.E.2d 101, 103 (1997) (finding an issue is not preserved for appellate review when the PCR court does not rule on the issue). 3 3. As to whether trial counsel was ineffective for advising Adams not to testify after informing the jury he would testify and not properly advising Adams as to whether he should testify: Solomon v. State, 313 S.C. 526, 529, 443 S.E.2d 540, 542 (1994) ("We give great deference to a judge's findings when matters of credibility are involved since we lack the opportunity to directly observe the witnesses."
2. As to whether trial counsel was ineffective for eliciting testimony from the investigator that she believed the victim was telling the truth and not moving for a mistrial in response to the testimony: Strickland v. Washington, 466 U.S. 668, 687 (1984) (providing that to establish a claim of ineffective assistance of counsel, a PCR applicant must prove trial counsel's performance was deficient and the deficient performance prejudiced the applicant's case); State v. Herring, 387 S.C. 201, 216, 692 S.E.2d 490, 498 (2009) ("Generally, a curative instruction to disregard the testimony is deemed to have cured any alleged error."); Padgett v. State, 324 S.C. 22, 27, 484 S.E.2d 101, 103 (1997) (finding an issue is not preserved for appellate review when the PCR court does not rule on the issue). 3.
2. As to Casey's argument that his trial counsel provided inadequate representation during the pretrial suppression hearing: Ard v. Catoe, 372 S.C. 318, 331, 642 S.E.2d 590, 596 (2007) ("There is a strong presumption that counsel rendered adequate assistance and exercised reasonable professional judgment in making all significant decisions in the case."); Padgett v. State, 324 S.C. 22, 26, 484 S.E.2d 101, 102-03 (1997) ("Where counsel articulates a valid reason for employing certain trial strategy, the conduct will not be deemed ineffective."). AFFIRMED.
As to Casey's argument that his trial counsel provided inadequate representation during the pretrial suppression hearing: Ard v. Catoe, 372 S.C. 318, 331, 642 S.E.2d 590, 596 (2007) ("There is a strong presumption that counsel rendered adequate assistance and exercised reasonable professional judgment in making all significant decisions in the case."); Padgett v. State, 324 S.C. 22, 26, 484 S.E.2d 101, 102-03 (1997) ("Where counsel articulates a valid reason for employing certain trial strategy, the conduct will not be deemed ineffective."). AFFIRMED.