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Collins v. State

Supreme Court of South Carolina

February 28, 2018

Marshall Heath Collins, Respondent,
v.
State of South Carolina, Petitioner. Appellate Case No. 2014-002397

          Submitted May 15, 2017

         ON WRIT OF CERTIORARI

         Appeal From Pickens County James R. Barber, III, Circuit Court Judge

          Attorney General Alan M. Wilson and Assistant Attorney General Karen C. Ratigan, both of Columbia, for Petitioner.

          Chief Appellate Defender Robert Michael Dudek, of Columbia, for Respondent.

          BEATTY, CHIEF JUSTICE

         A jury convicted Marshall Collins of trafficking methamphetamine (third offense), and possession of a weapon during the commission of a violent crime.[1] The trial judge sentenced Collins to an aggregate twenty-five years' imprisonment. The Court of Appeals affirmed. State v. Collins, Op. No. 2012-UP-356 (S.C. Ct. App. filed June 13, 2012). Subsequently, Collins filed a timely application for Post-Conviction Relief ("PCR"). After a hearing, the PCR judge issued an order granting Collins a new trial. This Court granted the State's petition for a writ of certiorari to review whether the PCR judge erred in finding trial counsel was ineffective in failing to request a continuance and failing to properly handle an expired plea offer. We reverse.

         I. Factual/Procedural History

         On October 2, 2009, at approximately 1:30 a.m., Officer Joshua Blair, from the Pickens Police Department, stopped Collins for driving a vehicle with a faulty tag light. According to Officer Blair, Collins claimed he did not have his license, but gave Officer Blair a false name and date of birth. As Officer Blair was checking the information, Collins fled on foot with a backpack. Officer Blair gave pursuit and eventually apprehended Collins.

         When Officer Joseph Sapp arrived on the scene, he placed Collins in handcuffs without removing Collins' backpack. A search of the backpack revealed a handgun, methamphetamine, and numerous individual packages of Alprazolam and Oxycodone. Thereafter, Collins was charged with trafficking more than ten grams of methamphetamine, PWID Alprazolam, PWID Oxycodone, and possession of a weapon during the commission of a violent crime.

         The trial proceedings began on December 1, 2010. Prior to the start of trial, Collins' trial counsel informed the trial judge that the solicitor had just served Collins with a copy of the November 23, 2010, indictment for the weapons charge. Counsel stated, "on a possession of a firearm during [the] commission of a violent crime, that indictment was just served on my client less than five minutes ago. So he's never been arraigned on that." Trial counsel admitted he received a copy of the indictment the week before trial, but maintained he was just the "mouthpiece" and that Collins' constitutional rights were at stake.

         In response, the solicitor produced an email he sent to trial counsel on November 12, 2010, explaining that he would submit the indictment for the weapons charge to the grand jury. The solicitor's email further stated, "[i]f the [g]rand [j]ury indicts, I will call the case, along with the pending drug charges at the 11/29/10 term. There is no additional discovery to be had as the information previously given over to you on the other cases contains the required information on the proposed weapons charge." According to the solicitor, he sent trial counsel a copy of the indictment returned by the grand jury on November 23, 2010, and had a signed receipt indicating counsel received the discovery materials. Additionally, the solicitor noted that the "purpose of the arraignment process . . . is to put the Defendant on notice." Further, the solicitor maintained he could have had Collins arrested, but noticed counsel instead.

         Thereafter, the trial judge arraigned Collins on the offense of possession of a weapon during the commission of a violent crime. The judge asked trial counsel if he was ready to proceed on all charges, to which, trial counsel responded "[m]y focus in preparing for trial was not on this charge." The court then stood at recess so that trial counsel could speak with Collins about the weapons charge. After the break, the trial judge asked trial counsel, again, if he had spoken to Collins and was prepared to go forward on the weapons charge. Counsel responded, "[y]es, sir. And it was part of the discovery. It just [sic] - - I can try." Furthermore, counsel noted for the record that he objected to proceeding on the weapons charge because he did not think the "process" was proper.

         Despite trial counsel's objection, the trial proceeded on all charges and the jury convicted Collins of trafficking more than ten grams of methamphetamine, and possession of a weapon during the commission of a violent crime. The trial judge sentenced Collins to an aggregate twenty-five years' imprisonment. The Court of Appeals affirmed. State v. Collins, Op. No. 2012-UP-356 (S.C. Ct. App. filed June 13, 2012). Subsequently, Collins filed a timely application for PCR.

         At the PCR hearing, Collins alleged that trial counsel was ineffective because he failed to request a continuance and to properly handle an expired plea offer. In regards to the expired plea offer, Collins testified he was appointed Robert Newton, a public defender, in February of 2010. However, according to Collins, "Mr. Newton had relinquished his time with the public defender service[.]" Collins maintained he reapplied for counsel in August of 2010 and was appointed trial counsel. Collins met with trial counsel for the first time on October 19, 2010, and a second time in early November 2010. During the second meeting, counsel went over discovery and showed Collins the expired plea offer, which was addressed to Newton.[2] Collins asserted he had never seen the offer before his second meeting with trial counsel. When asked if he ever told trial counsel that he wanted to plead guilty, Collins claimed he told counsel he wanted more information before he decided. Additionally, Collins acknowledged trial counsel indicated he would attempt to negotiate the trafficking charge.

         In response, trial counsel confirmed that he was Collins' second attorney. Upon receiving Collins' file, counsel made the usual discovery motions and reviewed the discovery materials with Collins. Counsel admitted that he had received the plea offer, but explained the plea offer expired before he was appointed to represent Collins. Trial counsel testified the second page of the letter proposed an aggregate sentence of fifteen years' imprisonment "at eighty-five percent" in exchange for pleas to "trafficking, third offense; possession of meth, third offense; and unlawful neglect of a child." The letter stated that, if the offer was not accepted before June 21, 2010, any other offers would be withdrawn and the case would be placed on the trial calendar with no further negotiation. Trial counsel "fe[lt] certain" he not only talked to Collins about the expired plea offer, but also followed up with the solicitor. However, counsel could not recall the solicitor's response.

         Next, Collins asserted trial counsel was ineffective in failing to request a continuance after Collins was served with the indictment for the weapons charge on the morning of trial. Collins argued that, prior to being served, he had no knowledge he would be going to trial for the weapons charge. When asked whether he ever instructed trial counsel to request a continuance, Collins maintained that counsel knew he "was not comfortable." Further, Collins made clear that trial counsel did "stress[] on the record [his objection] to having to try [the weapons charge]." Collins also acknowledged he went over all discovery with trial counsel and that he told counsel his version of what happened the night he was arrested.

          In response, trial counsel confirmed that Collins was not served with the indictment for the weapons charge until the morning of trial. Counsel testified that he objected, but "in spite of or because of my objection, we moved forward on the charge." Although counsel admitted that he did not ask for a continuance, he noted that he "tried to keep it out." When asked if, in retrospect, he should have sought a continuance, counsel explained he did not think that he would have because, "although the firearm [charge] obviously carried a five-year penalty, it certainly was not the major problem we were facing." Counsel could not recall whether or not his discovery materials indicated a gun had been recovered. Nonetheless, trial counsel testified he and Collins reviewed the discovery ...


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