Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lucero v. State

Court of Appeals of South Carolina

September 9, 2015

Ken Lucero, Respondent,
v.
State of South Carolina, Petitioner

Heard June 2, 2015.

Page 410

Appeal From Dorchester County. Appellate Case No. 2012-213130. Diane Schafer Goodstein, Plea Court Judge. DeAndrea G. Benjamin, Post-Conviction Relief Court.

Attorney General Alan McCrory Wilson and Assistant Deputy Attorney General David A. Spencer, both of Columbia, for Petitioner.

Eleanor Duffy Cleary, of Cleary Law LLC, of Columbia, for Respondent.

KONDUROS, J. THOMAS and GEATHERS, JJ., concur.

OPINION

Page 411

[414 S.C. 241] ON WRIT OF CERTIORARI

KONDUROS, J.:

In this post-conviction relief (PCR) action, the State argues the PCR court erred in finding Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), applied retroactively and granting Ken Lucero's application for PCR. The State also contends the PCR court erred in denying its motion to dismiss on the basis that the application was barred by the statute of limitations and laches. We reverse.

[414 S.C. 242] FACTS

Lucero was born in Ecuador, moved to the United States in 1993, and became a " permanent resident alien" in 2000. On June 6, 2002, she was traveling in a rental car from New York City, where she lived, to Orlando, Florida, when police executed a traffic stop in Dorchester County, South Carolina. According to Lucero, because she did not speak English, she was unsure why police stopped her. Police searched her vehicle and found heroin in the trunk, but she asserted she had never seen heroin or transported it for other people.

The State indicted Lucero for trafficking heroin in an amount more than one hundred grams but less than two hundred grams. In November 2002, she pled guilty to the lesser included offense of possession of heroin, and the plea court sentenced her to two years' imprisonment suspended on three years' probation.[1] Lucero did not file a direct appeal. In February 2011, an immigration judge ordered Lucero removed to Ecuador due to her conviction.

On April 14, 2011, Lucero filed an application for PCR alleging ineffective assistance of counsel based on Padilla because plea counsel failed to inform her of the possibility of deportation due to her conviction. At the PCR hearing, Lucero testified she met with plea counsel on three occasions and plea counsel never informed her of the possibility of deportation. She testified she would not have pled guilty if she knew she could be deported.

The State argued Lucero's application was barred by the statute of limitations because she pled guilty in 2002, never filed a direct appeal, and filed her PCR application in 2011, in excess of the one-year statute of limitations for PCR. The State claimed Padilla was not retroactive; therefore, her application was " far beyond the [one-year] statute of limitations." Alternatively, the State argued even if Padilla was retroactive, Lucero's application was still barred by the statute of limitations because she waited more than one year from the day the Supreme Court issued Padilla. The State also claimed the doctrine of laches barred Lucero's application.

[414 S.C. 243] The PCR court found Lucero was entitled to PCR and vacated her conviction. Initially, the PCR court determined Lucero's application fell within the one-year statute of limitations provided under section 17-27-45(B) of the South Carolina Code (2014) because Padilla was " 'intended to be applied retroactively.'" Further, the PCR court ruled the one-year statute of limitations contained in section 17-27-45(B) begins from the day the Supreme Court issues its " mandate" because " [t]his is analogous to the state court's issuing of the remittitur under Rule 221, SCACR." The PCR court explained because the Supreme Court issued its mandate ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.