Submitted May 15, 2017
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.
Appellate Defender Robert Michael Dudek, of Columbia, for
BEATTY, CHIEF JUSTICE
convicted Marshall Collins of trafficking methamphetamine
(third offense), 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
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.
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.
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.
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.
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
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.
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
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. 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.
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
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.
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 ...