Davis Adv. Sh. No. 3
S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Gary Moorehead, Respondent,
v.
State of South Carolina, Petitioner.
Appeal From Horry County
Daniel E. Martin, Sr., Judge
ON WRIT OF CERTIORARI
Opinion No. 24742
Submitted November 19, 1997 - Filed January 12, 1998
REVERSED
- Attorney General Charles Molony Condon, Deputy
- Attorney General John W. McIntosh, and Assistant
- Deputy Attorney General Teresa A. Knox, all of
- Columbia, for petitioner.
- Assistant Appellate Defender Lisa T. Gregory, of
- S.C. Office of Appellate Defense, of Columbia, for
- respondent.
MOORE, A.J.: On advice of counsel, respondent pled guilty to
two separate charges arising from different facts: criminal sexual conduct
(CSC) third degree and unlawful use of telephone. No direct appeal was
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MOOREHEAD v. STATE
taken. We granted the State's petition for a writ of certiorari to review
the grant of post-conviction relief (PCR) and now reverse.
FACTS
The following facts were presented at the plea hearing by the
assistant solicitor:
- Your Honor, as to the unlawful use of telephone,
- [respondent] called the victim, who is his ex, who is his ex-
- girlfriend, and harassed and threatened her. One call was
- overheard by a Lex Morgan, a police officer, who told
- [respondent] not to call anymore, but he continued to call her...
- As to the criminal sexual conduct, the victim is Tracey
- Gibson, twelve years old. She was riding around with some
- friends very late at night on March 4th and went to the home
- of Mr. Moorehead's brother, [Terry] Moorehead, to ask if she
- could spend the night because she was in trouble with her
- mother. She knew Mr. Moorehead's brother, who is deaf. She
- had told, at the time when she met Mr. Moorehead, she told
- him she was fifteen. He told her she could sleep in his room,
- so she went into his room. She fell asleep. When she woke
- up, he was also awake. They began kissing, and he took off
- her clothes and had sex with her. She was menstruating at
- the time. She tells me that it's her understanding that he did
- use a condom. Your Honor, she said there was no consent.
- Afterwards, she got on the floor, went to sleep, and Mr.
- Moorehead slept in the bed. She woke up at seven a.m. and
- went home. She told her mother three days later. Mr.
- Moorehead, when questioned by the police, said she had never
- been in his house; however, she could describe the bedroom.
- They did find what appeared to be blood stains on the
- mattress and took them to SLED.
DISCUSSION
1) Sentencing advice on CSC charge
Respondent's sentence on the CSC charge was ten years, suspended
after seven, and five years probation. At the PCR hearing, respondent
testified he pled guilty to the CSC charge on counsel's advice that he
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MOOREHEAD v. STATE
would receive only probation. He claimed he answered the trial judge's
questions regarding the plea affirmatively because
- I done what [counsel] told me to do .... He said the judge
- knew about all of this and that's how things was done around
- here. That's why I told the judge that, hoping that -- well,
- knowing that I was going to get probation, I thought, instead
- of being sent to the Department of Corrections.
Counsel, on the other hand, testified he never promised respondent a
straight probationary sentence although they did discuss probation to
follow his active jail time as part of the plea negotiations.
The PCR judge found counsel was ineffective for advising respondent
he would receive only probation and that respondent would not have pled
guilty but for this erroneous advice. This was error.
When considering an allegation on PCR that a guilty plea was based
on inaccurate advice of counsel, the transcript of the guilty plea hearing
will be considered to determine whether any possible error by counsel was
cured by the information conveyed at the plea hearing. Wolfe v. State,
__S.C.__ 485 S.E.2d 36-1 (1997). At the plea hearing, the trial judge
asked respondent if he understood that the possible sentence for the CSC
charge was ten years and respondent answered that he did. The trial
judge also summarized the plea agreement on the record before accepting
respondent's plea and respondent answered that he understood it. Even if
trial counsel erroneously informed respondent that his sentence would be
probationary, any misconception was cured at the plea hearing.
Further, respondent's explanation that he answered the trial judge
affirmatively on counsel's alleged advice that the questions were
meaningless does not support the grant of PCR. Id. (defendant's claim he
understood from counsel that the trial ) judge's questions at the guilty plea
were only a "polite fiction" held not an invitation to answer untruthfully) .
We conclude there is no evidence to support the PCR judge's finding
that respondent received ineffective assistance of counsel on this ground.
2) Failure to investigate
Respondent claimed counsel was ineffective for failing to
independently investigate. He claimed counsel failed to interview
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MOOREHEAD v. STATE
exculpatory witnesses or the two victims and did not await the results of
SLED DNA testing on the blood from the mattress. The PCR judge found
counsel was ineffective on this ground. This was error.
Failure to conduct an independent investigation does not constitute
ineffective assistance of counsel when the allegation is supported only by
mere speculation as to the result. Kibler v. State, 267 S.C. 250, 227
S.E.2d 199 (1976). There is nothing in the record to indicate that
interviewing the victims would have led to any different result.
Respondent admitted the victim of the telephone charge would have
reiterated the same accusation and there is nothing to indicate the CSC
victim would have retracted her version of the facts. Further, there is no
evidence awaiting the DNA test results could have had any impact since
respondent admitted the CSC victim had slept on his mattress as an
explanation for the menstrual blood. Accordingly, there is no evidence to
support the PCR judge's finding that counsel was ineffective for failing to
investigate.CONCLUSION
A defendant who pleads guilty on the advice of counsel may
collaterally attack the plea only by showing that (1) counsel was ineffective
and (2) there is a reasonable probability that but for counsel's errors, the
defendant would not have pled guilty. Wolfe v. State, __ S.C. __, 485
S.E.2d 367 (1997); Satterwhite v. State, __S.C.__, 481 S.E.2d 709
(1997). Since there is no evidence to support the finding counsel was
ineffective, the PCR judge erred in vacating respondent's plea.
REVERSED.
FINNEY, C.J., TOAL, WALLER and BURNETT, JJ., concur.
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