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Frierson v. State

Supreme Court of South Carolina

May 23, 2018

Darryl Frierson, Petitioner,
State of South Carolina, Respondent. Appellate Case No. 2016-001940

          Heard March 29, 2018

          Appeal from Richland County Clifton Newman, Circuit Court Judge


          Appellate Defender Kathrine Haggard Hudgins, of Columbia, for Petitioner.

          Attorney General Alan McCrory Wilson and Assistant Attorney General James Clayton Mitchell, III, of Columbia, for Respondent.


         Petitioner Darryl Frierson pled guilty to assault and battery of a high and aggravated nature, criminal conspiracy, kidnapping, and armed robbery for his role in masterminding a $9.8 million heist from an armored truck. He was sentenced to an aggregate term of thirty-five years in prison. Thereafter, he applied for post-conviction relief (PCR), asserting he would not have pled guilty but instead would have proceeded to trial had his plea counsel adequately informed him of the possibility to suppress evidence gathered from law enforcement's warrantless placement of a mobile tracking device on his vehicle. The PCR court denied relief, and the court of appeals affirmed. Frierson v. State, 417 S.C. 287, 789 S.E.2d 762 (Ct. App. 2016). We affirm as modified and take this opportunity to clarify the correct standard to determine prejudice when a defendant seeks PCR after pleading guilty.


         Around midnight on May 10, 2007, Frierson and his co-worker, David Jones, were refueling their company's armored truck at a gas station outside of Columbia when several individuals overpowered them, forcing them back into the truck at gun point. The attackers drove the truck to a nearby strawberry field, tied Jones up with duct tape, transferred the money to a get-away car, and fled, leaving Frierson and Jones behind. Unlike Frierson, Jones was severely injured, but he was able to remove the duct tape and walk to a night club where he called police. Frierson remained behind in the truck, claiming he was too injured to find help. Eventually, Jones and Frierson were transported to the hospital, where law enforcement arrived to speak with them. Investigators immediately became suspicious of Frierson as they noticed he appeared to have suffered no visible injuries whereas Jones was severely beaten. Thereafter, Frierson vividly described the details of the crime scene, even though the events occurred in the dark around midnight. After Frierson was released from the hospital, he went to the police station, where police observed him through a two-way mirror naturally moving his arms despite wearing a sling and claiming his shoulder was injured. Frierson agreed to take a polygraph test, which he failed. Believing the crime was an "inside job, " law enforcement continued its surveillance of Frierson by placing a tracking device on the outside of his vehicle, which revealed he was traveling extensively and shopping at a Florence mall.

         While police tracked Frierson's movements, more incriminating evidence was uncovered, including a blue latex glove found in Frierson's trash outside his home that matched a glove found inside the armored truck shortly after the robbery. Police talked to Paul Whitaker, another co-worker and close friend of Frierson, who subsequently confessed that he took part in the robbery and identified Frierson as the mastermind. Thereafter, police searched Whitaker's house and found a substantial amount of money and mall receipts belonging to Frierson.

         A few days later, pursuant to a valid arrest warrant, law enforcement officers used the tracking information to locate Frierson in Columbia, and they arrested him while he was driving with a friend, Domonique Blakney, who turned out to have been involved in the crime as well. Police searched the car and found several thousand dollars in cash. At the police station, investigators found pictures of bags of money on Blakney's cell phone, and he confessed that Frierson was the mastermind of the heist. Presented with Blakney's statements, Frierson subsequently confessed, as did the remaining co-conspirators.

         Thereafter, plea counsel advised Frierson the placement of the tracking device without a warrant was likely permissible;[1] however, plea counsel was unaware of section 17-30-140 of the South Carolina Code (2014).[2] Frierson pled guilty and later sought PCR, arguing plea counsel failed to adequately inform him that he could have moved to suppress the information garnered from the tracking device on constitutional grounds and based on section 17-30-140.[3] Although Frierson testified he would not have pled and instead proceeded to trial, the PCR court found his testimony "wholly incredible." The court denied relief, finding counsel was not deficient because he sufficiently researched the legality of the warrantless placement of the device and concluding Frierson failed to establish prejudice, primarily based on the court's credibility finding. The court of appeals affirmed, concluding there was overwhelming evidence that "the outcome of [Frierson's] case would have been no different had he chosen to proceed to trial." Frierson, 417 S.C. at 299, 789 S.E.2d at 768. We granted Frierson's petition for a writ of certiorari to review the court of appeals' opinion.


         We defer to the PCR court's factual findings and will uphold them if supported by any evidence in the record. Smalls v. State, 422 S.C. 174,, 810 S.E.2d 836, 839 (2018). Furthermore, we afford great deference to a PCR court's credibility findings. Goins v. State, 397 S.C. 568, 573, 726 S.E.2d 1, 3 (2012). Questions of law are reviewed de novo, and we will reverse the PCR court if its ...

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