Farid A. Mangal, Respondent,
State of South Carolina, Petitioner. Appellate No. 2016-000610
December 14, 2016.
OF CERTIORARI TO THE COURT OF APPEALS
from Spartanburg County J. Mark Hayes II, Trial Judge J.
Derham Cole, Post-Conviction Relief Judge
Attorney General Alan Wilson and Assistant Attorney General
Alicia A. Olive, both of Columbia, for Petitioner.
R. Ferguson, of Cox Ferguson & Wham, LLC, of Laurens, and
C. Rauch Wise, of Greenwood, for Respondent.
Solicitor J. Strom Thurmond, Solicitor Barry J. Barnette and
Amie Clifford, all of Columbia, for Amicus Curiae
Solicitors' Association of South Carolina, Inc.
Suzanne B. Cole, of Spartanburg and Candice A. Lively, of
Chester, for Amicus Curiae South Carolina Network of
Children's Advocacy Centers and University of South
Carolina Children's Law Center.
A. Mangal was convicted of criminal sexual conduct with a
minor, lewd act upon a child, and incest. After his
convictions were affirmed, Mangal filed this action for
post-conviction relief (PCR). He argues trial counsel was
ineffective for not objecting to improper bolstering
testimony. The PCR court refused to rule on the improper
bolstering issue because the court found Mangal did not raise
it in his PCR application or at the PCR hearing. The court of
appeals reversed, finding the improper bolstering issue was
raised to the PCR court. The court of appeals then proceeded
to grant PCR on the merits of the issue before it was
considered by the PCR court. We reverse the court of appeals
and reinstate the PCR court's order.
Facts and Procedural History
facts surrounding Mangal's sex crimes are set forth in
detail in the court of appeals' opinion. Mangal v.
State, 415 S.C. 310, 781 S.E.2d 732 (Ct. App. 2015).
Focusing on those facts relevant to the specific issues in
this appeal, the victim- Mangal's nineteen-year-old
daughter-testified Mangal had been sexually assaulting her
since she was ten years old. She described where, when, and
how it happened. On cross-examination, trial counsel
questioned the victim about inconsistencies in her testimony
and suggested she had a motive to lie about the sexual
abuse-to gain freedom from Mangal's strict parenting.
Mangal testified in his defense and claimed the victim and
her mother fabricated the allegations.
improper bolstering claim is based on the testimony of the
State's witness Nancy Henderson, M.D., a pediatrician the
trial court qualified as an expert "in the examination,
diagnosis, and treatment of child sex abuse." Dr.
Henderson testified she conducted a physical examination of
the victim and discovered her "hymen tissue looked very,
very normal" except for a "marked narrowing"
at one spot. Dr. Henderson concluded this was "a
sign of some type of penetration." She then testified
the victim had been "sexually abused, " and that
her opinion was "based on the history [the victim]
shared with me and based on my examination." Trial
counsel cross-examined Dr. Henderson in part by emphasizing
her reliance on the victim's history-as opposed to the
physical examination-in forming her opinion that the hymen
injury resulted from sexual abuse.
jury convicted Mangal of criminal sexual conduct with a minor
in the first degree, criminal sexual conduct with a minor in
the second degree (two counts), lewd act upon a child,
incest. The trial court sentenced Mangal to thirty years in
prison, and the court of appeals affirmed his convictions.
State v. Mangal, Op. No. 2009-UP-113 (S.C. Ct. App.
filed March 4, 2009).
filed his PCR application without the assistance of
counsel. As required by section 17-27-50 of the
South Carolina Code (2014) and Rule 71.1(b) of the South
Carolina Rules of Civil Procedure, he made the application on
the form prescribed by this Court. See Form 5, SCRCP
Appendix of Forms. In the blank requiring the applicant to
"State concisely the grounds on which you base your
allegation that you are being held in custody unlawfully,
" Mangal handwrote, (a) "ineffective assistance of
counsel trial, " (b) "prejudiceness, " (c)
"ineffective assistance of appellate counsel." In
the blank requiring the applicant to "State concisely
and in the same order the facts which support each of the
grounds set out [above], " Mangal handwrote (a)
"failure to preserve direct appeal issue, " (b)
"failed to investigate documentary evidence and
witnesses, " and (c) "fail to make an additional
object[ion] to the sufficiency of the curative charge or
moved for a mistrial." He also wrote "will amend
pursuant to SCRCP, Rule 71.1" to include "new
grounds upon appt. of PCR counsel, " in apparent
recognition that Rule 71.1(d) requires, "Counsel shall
insure that all available grounds for relief are included in
the application and shall amend the application if
was subsequently appointed counsel, and later retained a
different attorney who represented him at the PCR trial, but
no written amendment to Mangal's original application was
filed. Mangal's counsel began the PCR hearing by calling
witnesses, giving no indication to the PCR court he intended
to raise any issues not set forth in the original
application. During his presentation of evidence, PCR counsel
asked trial counsel why he did not object to "improper
bolstering" testimony given by Dr. Henderson, and the
State briefly cross-examined him on the same subject.
However, PCR counsel did not mention any intent to make an
ineffective assistance claim based on a failure to object to
improper bolstering testimony until the end of the hearing.
At that point, he argued trial counsel was ineffective in
several respects not mentioned in the original application,
including for not objecting to the alleged improper
bolstering testimony of Dr. Henderson.
court denied relief in a written order without addressing the
improper bolstering issue. Mangal made a motion under Rule
59(e) of the South Carolina Rules of Civil Procedure to alter
or amend the judgment, arguing the PCR court should have
addressed the improper bolstering issue. The PCR court denied
the motion and held the improper bolstering issue was
"not presented to the court in the application or in an
amendment, and no testimonial evidence from the applicant was
presented in support of these allegations."
filed a petition for a writ of certiorari seeking review of
the denial of PCR, which we transferred to the court of
appeals pursuant to Rule 243(1) of the South Carolina
Appellate Court Rules. Mangal argued trial counsel was
ineffective for not objecting to Dr. Henderson's
testimony and the PCR court erred by not ruling on the issue.
The court of appeals agreed the PCR court erred in not ruling
on the improper bolstering issue. Mangal, 415 S.C.
at 317-18, 781 S.E.2d at 735-36. The court of appeals then
addressed the merits of the issue, finding Dr.
Henderson's testimony was improper bolstering and counsel
was ineffective for not objecting to it. 415 S.C. at 319-20,
781 S.E.2d at 736-37. The court of appeals remanded to the
court of general sessions for a new trial. 415 S.C. at
319-20, 781 S.E.2d at 737. The State filed a petition for a
writ of certiorari for review of the court of appeals'
decision, which we granted.
Standard of Review
standard of review in PCR cases depends on the specific issue
before us. We defer to a PCR court's findings of fact and
will uphold them if there is any evidence in the record to
support them. Sellner v. State, 416 S.C. 606, 610,
787 S.E.2d 525, 527 (2016) (citing Jordan v. State,
406 S.C. 443, 448, 752 S.E.2d 538, 540 (2013)). We do not
defer to a PCR court's rulings on questions of
law."Questions of law are reviewed de
novo, and we will reverse the PCR court's decision when
it is controlled by an error of law." Sellner,
416 S.C. at 610, 787 S.E.2d at 527 (citing Jamison v.
State, 410 S.C. 456, 465, 765 S.E.2d 123, 127 (2014)).
On review of a PCR court's resolution of procedural
questions arising under the Post-Conviction Procedure Act or
the South Carolina Rules of Civil Procedure, we apply an
abuse of discretion standard. See Winkler v. State,