Opinion
Unpublished Opinion No. 2011-UP-508
11-18-2011
Marcus J. Parker, Petitioner, v. State of South Carolina, Respondent.
Appellate Defender Elizabeth A. Franklin-Best, of Columbia, for Petitioner. Attorney General Alan M. Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliot, and Assistant Attorney General Matthew J. Friedman, all of Columbia, for Respondent.
THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
Appeal From Jasper County
Carmen Mullen, Circuit Court Judge
REVERSED AND REMANDED
Appellate Defender Elizabeth A. Franklin-Best, of Columbia, for Petitioner.
Attorney General Alan M. Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliot, and Assistant Attorney General Matthew J. Friedman, all of Columbia, for Respondent.
FEW , C.J.: In his third post-conviction relief application, Marcus Parker claims his plea counsel erroneously advised him he would be parole eligible on a conviction for possession of a firearm during the commission of a dangerous crime. The PCR court summarily dismissed the application as successive and filed outside the statute of limitations. Because Parker's application states a prima facie claim under Tilley v. State, 334 S.C. 24, 511 S.E.2d 689 (1999), we reverse for an evidentiary hearing.
In September 2000, Parker pled guilty to armed robbery, assault and battery with intent to kill (ABWIK), kidnapping, and possession of a firearm during the commission of a violent crime. The plea judge sentenced Parker to twenty-five years' imprisonment for armed robbery, twenty years concurrent for ABWIK, twenty-five years concurrent for kidnapping, and five years consecutive for possession of a firearm during the commission of a violent crime. A person convicted of possession of a firearm during the commission of a violent crime is not eligible for parole during the five-year sentence. S.C. Code Ann. § 16-23-490(C) (Supp. 2010).
In February 2007, Parker filed the PCR application at issue. In his application Parker claims plea counsel affirmatively told him he would be parole eligible for the possession of a firearm conviction after he served his concurrent sentences. Parker alleges he first learned he was parole ineligible on December 15, 2006, when his Department of Corrections caseworker told him. Parker contends that his plea counsel was ineffective for giving him erroneous advice about his parole eligibility and that if he had known he would be parole ineligible, he would not have pled guilty to possession of a firearm. The State filed a motion for summary dismissal contending Parker's application was successive and filed outside of the one-year statute of limitations in section 17-27-45(A) of the South Carolina Code (2003).
"[T]o be entitled to a successive PCR application, the applicant must establish that the grounds raised in the subsequent application could not have been raised in the previous application." Odom v. State, 337 S.C. 256, 261, 523 S.E.2d 753, 755 (1999). "When considering the State's motion for summary dismissal of a[] [PCR] application, a judge must assume facts presented by an applicant are true and view those facts in the light most favorable to the applicant." Al-Shabazz v. State, 338 S.C. 354, 364, 527 S.E.2d 742, 747 (2000). "Furthermore, summary dismissal without a hearing is appropriate only when (1) it is apparent on the face of the application that there is no need for a hearing to develop any facts and (2) the applicant is not entitled to relief." Id.
Assuming the facts presented by Parker are true, his application states a prima facie claim for PCR under Tilley. See 334 S.C. at 26-28, 511 S.E.2d at 690-91 (affirming PCR court's decision to grant Tilley's fourth PCR application when the applicant did not previously know he was parole ineligible for possession of a firearm because he received printouts each year from the Parole Board with his parole eligibility date). Accordingly, we reverse and remand for an evidentiary hearing.
The PCR court also held Parker's "allegation of newly discovered evidence based on parole eligibility is without merit" because plea counsel could not be "ineffective for failing to advise a defendant regarding parole eligibility because it is a collateral consequence of sentencing." The principle of law is correct, but the PCR court misconstrued Parker's claim. See Smith v. State, 329 S.C. 280, 283, 494 S.E.2d 626, 628 (1997) ("[I]f the defendant's attorney undertakes to advise the defendant about parole eligibility and gives erroneous advice, then the plea may be collaterally attacked."). Parker does not allege counsel failed to advise him about his parole eligibility. He alleges counsel gave him erroneous advice about parole eligibility, which may be attacked through a PCR application.
REVERSED and REMANDED.
THOMAS and KONDUROS, JJ., concur.