THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Willie James, Petitioner

v.

State of South Carolina, Respondent

Appeal From Florence County
B. Hicks Harwell, Jr., Circuit Court Judge

Opinion No. 4099
Submitted January 30, 2006 Filed March 27, 2006

REVERSED AND REMANDED

Assistant Appellate Defender Eleanor Duffy Cleary, Office of Appellate Defense, of Columbia, for Petitioner.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott and Assistant Attorney General Sabrina Todd, Office of Attorney General, all of Columbia, for Respondent.

GOOLSBY, J.: This is a PCR case. The petitioner Willie James contends his counsel was ineffective for not objecting to the States failure to provide written notice to him of its intention to seek a sentence of life imprisonment without parole as required by S.C. Code Ann. 17-25-45(H) (2003). The trial court dismissed James petition. We reverse and remand for resentencing.

An indictment charged James with armed robbery. Because he had a prior armed robbery conviction, the State sought to have him sentenced to life imprisonment without the possibility of parole pursuant to S.C. Code Ann. 17-25-45(A)(1) (2003). South Carolina Code section 17-25-45(H) provides the following regarding notice:

Where the solicitor is required to seek or determines to seek sentencing of a defendant under this section, written notice must be given by the solicitor to the defendant and defendants counsel not less than ten days before trial.[1]

The trial court found defense counsel received the required written notice but James did not; however, the trial court also found James had actual notice of the States intention to seek a sentence of life imprisonment without parole.

Our recent case of State v. Johnson[2] controls the result here. In Johnson, a majority of this court held insufficient the notice required by section 17-25-45(H) where the State served written notice upon the defendant but not upon his counsel, notwithstanding both the defendant and his lawyer had actual notice of the States intention to seek a sentence of life imprisonment without parole. The court observed:

By its words in the recidivist statute, the General Assembly has mandated that the solicitor must notify the defendant and the defendants counsel in writing if the solicitor intends to seek a life sentence without the possibility of parole. For this Court to dismiss the clear and unambiguous language of the statute and merely require the defendants counsel to have actual notice of the solicitors intent to seek life without parole would have the effect of amending the statute. In our view, actual notice under section 17-25-45(H) is insufficient unless and until the General Assembly decides otherwise and amends the statute itself.[3]

As noted in footnote two, supra, the supreme court declined to review the decision. It did so, notwithstanding one judge dissented.[4]

We discern no meaningful distinction between the Johnson case and the one here. The statute in question requires both a defendant and defendants counsel to receive written notice of the States intention. In Johnson, the solicitor notified the defendant in writing but not the defendants counsel; here, the solicitor notified the defendants counsel in writing but not the defendant. To paraphrase the majoritys words in Johnson, for this court to dismiss the clear and unambiguous language of the statute and merely require the defendant to have actual notice of the solicitors intent to seek life imprisonment without parole would have the effect of amending the statute. The statute is the same today as it was when this court decided Johnson.

Regarding the States argument that written notice to defense counsel sufficed to provide written notice to the defendant because defense counsel served as the defendants agent, we can only say not in this case not where the statute, as this court held in Johnson, in clear and unambiguous language requires both a defendant and his counsel to be served with written notice. If a defendants actual notice is insufficient to satisfy the requirements of section 17-25-45(H), then his imputed knowledge certainly is.

To establish a claim of ineffective assistance of counsel, a PCR applicant must prove trial counsels representation fell below an objective standard of reasonableness and there is a reasonable probability the result would have been different but for counsels error.[5] James made such a showing here when he proved counsel did not raise the issue of the States failure to serve the defendant with written notice, even though the statute, as this court later held, plainly required a defendant to be so served, and as a result James was sentenced to life imprisonment without the possibility of parole in violation of the statute. This failure obviously prejudiced him. Moreover, that this court decided Johnson after the trial court sentenced James is of little moment in view of the clear and unambiguous language[6] of section 17-25-45(H).

REVERSED AND REMANDED.

HUFF and KITTREDGE, JJ., concur.

[1] S.C. Code Ann. 17-25-45(H) (2003).

[2] 347 S.C. 67, 552 S.E.2d 339 (Ct. App. 2001), cert. denied (S.C. March 6, 2002).

[3] 347 S.C. at 70, 552 S.E.2d at 340.

[4] See Rule 226(b)(2), SCACR (listing a dissent in the decision of the Court of Appeals as a factor in determining whether to grant certiorari).

[5] Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

[6] 347 S.C. at 70, 552 S.E.2d at 340.