Vladimir W. Pantovich, Respondent,
State of South Carolina, Petitioner. Appellate Case No. 2017-000280
March 27, 2019
from Georgetown County George C. James, Jr., Circuit Court
Attorney General Alan McCrory Wilson and Assistant Attorney
General Johnny Ellis James, Jr., both of Columbia, for
Appellate Defender David Alexander, of Columbia, for
post-conviction relief (PCR) matter, we examine South
Carolina's longstanding good character charge as we
determine whether the PCR court erred when it found appellate
counsel for Respondent Vladimir Pantovich ineffective for
failing to raise a meritorious issue on direct appeal. The
PCR court granted relief based on appellate counsel's
failure to argue that the trial court erred by refusing to
give such a charge, which counsel had requested at trial.
While we agree that a portion of the charge Pantovich
requested is improper, we nonetheless affirm because of the
retrospective nature of PCR review.
AND PROCEDURAL BACKGROUND
killed his former girlfriend, Sheila McPherson, with a
baseball bat during an argument in his home. He hit her with
the bat more than ten times, breaking ribs, damaging internal
organs, and causing lacerations on her head that exposed her
bare skull. Pantovich wrapped her dead body in a blanket,
tied it with a rope, obscured her head with a garbage bag,
and put the body and the bat in the trunk of his car. He then
left his home in Georgetown County and drove toward his
son's home in Taylorsville, North Carolina. On the way,
he called his son to reveal what he had done. The son alerted
law enforcement, and an officer stopped Pantovich as he
approached Taylorsville. McPherson's body was still in
the trunk in the same condition.
State charged Pantovich with murder. At trial in 2008, he
admitted he beat McPherson to death, but claimed he did so in
self-defense. Pantovich explained McPherson physically abused
him throughout their years-long relationship. Four days
before he killed her, he and McPherson got into an argument
and she left him. Two days later, Pantovich talked to her on
the phone and told her he no longer wished to see her. He
testified that on the evening of the killing, he came home
from work around 6:00 p.m. to find McPherson in his house.
She had drugs in her possession, and the toxicology report
later showed she had several in her system. Pantovich told
her to leave, but McPherson refused and unplugged the phone
so he could not call the police. Thereafter, McPherson
grabbed a fireplace poker and stabbed a hole in
Pantovich's dinner tray while he sat in a reclining chair
eating. McPherson then attacked him with the poker. Pantovich
stated he was scared and tried to protect himself, so he
backed toward the door to his garage and grabbed one of two
baseball bats he kept there. He recalled blocking McPherson
with one hand and using the other to hit her with the bat.
Pantovich testified, he presented five character witnesses:
Andy Seifert, a friend and former employer; Christine McCune,
a friend of more than ten years; Maureen Moans, a friend of
almost ten years; Debbie Crisman, Pantovich's
ex-girlfriend; and Tammy Eschman, his former next-door
neighbor. They generally testified he was kind, caring, and
good with children. Several also reported witnessing
McPherson act violently towards Pantovich, but they never saw
him react in kind.
submitted a written request for the trial court to charge the
jury as to how it may interpret and use evidence of his good
character. The written charge request stated:
An accused, when charged with a crime, has the right of
proving his general good character. He may introduce evidence
of his good character which is inconsistent with the crime
charged against him.
Evidence of the general good character of the accused is for
the purpose of showing the improbability that the defendant
would have committed the crime charged. The good character of
the accused is like all other evidence in the case and is
entitled to such effect and weight as you, the jury, may
Good character evidence alone may create a reasonable doubt
as to the commission of the crime charged. Thus, under some
circumstances, a person might be entitled to a verdict of not
guilty when his good reputation is taken into consideration
even though a verdict of guilty might be authorized without
the evidence of good character.
response, the State requested a "more balanced"
charge that would allow the jury to decide whether evidence
constituted good character. After all evidence had been
presented, the trial court provided a copy of its proposed
jury charge, which made no mention whatsoever of good
character. Pantovich reiterated his request, but the trial
court denied it. The jury found him guilty of the
lesser-included offense of voluntary manslaughter, and the
trial court sentenced him to eighteen years in prison.
counsel filed a brief with the court of appeals pursuant to
Anders v. California, 386 U.S. 738 (1967), and
State v. Williams, 305 S.C. 116, 406 S.E.2d 357
(1991). Appellate counsel did not mention the trial
court's denial of Pantovich's request to charge the
jury on good character. The court of appeals dismissed the
appeal. State v. Pantovich, Op. No. 2011-UP-275
(S.C. Ct. App. filed June 8, 2011).
subsequently filed this PCR action alleging appellate counsel
was ineffective for failing to brief the trial court's
refusal to give the requested jury charge. The PCR court
initially found Pantovich failed to prove prejudice because
he alleged no irregularity in the court of appeals'
Anders procedure. We reversed, finding that to
demonstrate prejudice "the applicant must show . . . but
for appellate counsel's errors, the result of the appeal
would have been different." Pantovich v. State,
Op. No. 2015-MO-052 (S.C. Sup. Ct. filed Aug. 26, 2015).
remand, the PCR court found appellate counsel ineffective and
granted Pantovich a new trial. The court found that, because
Pantovich presented evidence of his good character,
controlling precedent required the trial court to give the
"good character alone" charge to the jury. The PCR
court determined the error prejudiced Pantovich because there
was a reasonable probability the charge would have impacted
the jury's consideration of whether he was without fault
in bringing on the difficulty and rejected the State's
arguments regarding harmless error. We granted the
State's petition for a writ of certiorari.
Court affords deference to a PCR court's findings of
fact, but reviews questions of law de novo. Smalls v.
State, 422 S.C. 174, 180, 810 S.E.2d 836, 839 (2018). We
will reverse if the PCR court's ruling is controlled by
an error of law. Jordan v. State, 406 S.C. 443, 448,
752 S.E.2d 538, 540 (2013).
prove appellate counsel was ineffective, a petitioner must
first show counsel's performance was deficient, meaning
it fell below an objective standard of reasonableness.
See Strickland v. Washington, 466 U.S. 668, 688
(1984). The petitioner must then show prejudice by
demonstrating that, but for counsel's deficient
performance, there is a reasonable probability the result of
the appeal would have been different. Id. at 694. A