Nelson H. Castro, Petitioner,
State of South Carolina, Respondent. Appellate Case No. 2015-000021
Submitted June 17, 2016
From Horry County, The Honorable Larry B. Hyman, Jr., Circuit
Court Judge The Honorable Kristi Lea Harrington, Post
Chief Appellate Defender Wanda H. Carter, of Columbia, for
Attorney General Alan Wilson and Assistant Attorney General
Caitlin Bazan Hastings, both of Columbia, for Respondent.
seeks a writ of certiorari from the dismissal of his
application for post-conviction relief (PCR). We grant the
petition for a writ of certiorari, dispense with further
briefing, reverse the order of the PCR judge, and remand this
matter for resentencing.
trial, petitioner was convicted of trafficking cocaine
between twenty-eight and one hundred grams and was sentenced
to fifteen years' imprisonment. Petitioner filed a timely
motion for resentencing, which was denied after a hearing.
Petitioner's conviction and sentence were affirmed on
direct appeal. State v. Castro, Op. No. 2012-UP-378
(S.C. Ct. App. filed June 20, 2012).
filed an application for PCR alleging trial counsel was
ineffective for failing to object when the trial judge
improperly considered petitioner's decision to exercise
his right to a jury trial as a factor in sentencing
petitioner. The PCR judge denied relief, finding petitioner
failed to meet his burden of proving the allegation.
PCR judge err in finding petitioner failed to prove trial
counsel was ineffective in failing to object when the trial
judge considered petitioner's decision to exercise his
constitutional right to a jury trial as a factor in
case, petitioner was charged with four drug related offenses.
One month before his trial, the State offered to dismiss
several of petitioner's charges and recommend a minimum
sentence in exchange for petitioner's decision to plead
guilty to trafficking between twenty-eight and one hundred
grams of cocaine. Petitioner declined the offer, and a trial
date was set for his trafficking charge. Immediately
preceding the trial, the trial judge explained to petitioner
that the State's plea offer was still on the table,
stating the following:
I have pre-tried this with your attorney, and I will tell you
I am inclined to sentence on a plea [to] seven years. I
would not be so inclined in the event of trial. Also,
you would [sic] regardless of how this trial comes out, you
would still be looking at the other three ...