THE STATE OF SOUTH CAROLINA In The Supreme Court

Darryl Frierson, Petitioner,

v.

State of South Carolina, Respondent.

Appellate Case No. 2016-001940

ON WRIT OF CERTIORARI TO THE COURT O F APPEALS

Appeal from Richland County Clifton Newman, Circuit Court Judge

Opinion No. 27801 Heard March 29, 2018 – Filed May 23, 2018

AFFIRMED AS MODIFIED

Appellate Defender Kathri ne Haggard Hudgins, of Columbia, for Petitioner.

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

JUSTICE HEARN: Petitioner Darryl Frierson pled guilty to assault and battery o f a high and aggravated nature, c riminal conspiracy, kidnapping, and armed robbery

for his role in masterminding a $9.8 million heist from an armo red 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 p led guilty but insteadwould have proceeded to trial had his plea counsel adequately informed him of the possibility to suppress evidence ga thered from law enforcement's warrantless placement of a mobile tracking device on his vehicle. The PCR c ourt 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 m odified and take this opportunit y to clarify the correct standard to determine prejudice when a defendant seeks PCR after pleading guilty.

FACTUAL/PROCEDUR AL BACKGROUND

Around midnight on May 10, 2007, Frierson and his co-worker, David Jones, were refueling their company's armored truck at a gas station o utside of Columbia when several individuals overpowered them, forcing them back in to 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, l eaving Frierson and Jones behind. Unlike Frierson, J ones 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 th e hospital, where law enforcemen t arrived to speak with them. Investigators immediately became suspicious of Frier son 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 twoway mirror naturally moving his arms despite wearing a sling an d claiming his shoulder was injured. Frierson ag reed to take a polygraph test, which he failed. Believing the crime was an "insi de job," law enforcement contin ued 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 late x glove found in Frierson's tra sh outside his home

that matched a glove found inside the armored truck shortly aft er 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 ide ntified Frierson as the mastermind. Thereafter, po lice searched Whitaker's house an d found a

substantial amount of money and mall receipts belonging to Frie rson.

A few days later, pursuant to a valid arrest warrant, law enfo rcement officers used the tracking information to locate Frierson in Columbia, a nd they arrested him while he was driving with a fri end, Domonique Blakney, who turn ed out to havebeen 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 Frierso n was the

mastermind of the heist. Presented with Blakney's statements, F rierson 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 f ailed to adequately inform hi m 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." Th e court denied relief, finding counsel was not deficient because he sufficiently researched the legality of th e warrantless placement of the device and concluding Frierson failed to establish preju dice, primarily based on the court's credibility finding. The court of appeals affirm ed, 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

1 Frierson pled guilty four years before the United States Supreme Court decided

United States v. Jones , 565 U.S. 400 (2012), holding the physical placement of a monitoring device on a suspect's vehicle constituted a trespass on private property

and therefore a search under the Fourth Amendment. At the time, plea counsel relied

on United States v. Knotts , 460 U.S. 276 (1983), holding the use of a tracking device

to monitor the location of a defendant traveling along public roadways did not invade any legitimate expectation of privacy and was not a "search" in violation of the

Fourth Amendment, and United States v. Karo , 468 U.S. 705, 713 (1984), holding the placement of an electronic beeper in a container with the o wner's consent did not

constitute a search because the buyer's privacy interests were not infringed when he received possession of the container.

2 Section 17-30-140(A) states, "The Attorney General or any soli citor may make application to a judge of competent jurisdiction for an order a uthorizing or approving

the installation and use of a mobile tracking device by the Sou th Carolina Law Enforcement Division or any law enforcement entity of a politic al subdivision of

this State.”

3 Frierson actually discovered the existence of section 17-30-14 0 himself while researching his case in prison.at 768. We granted Frierson's petition for a writ of certiorari to review the court of appeals' opinion.

STANDARD OF REVIEW

We defer to the PCR court's factual findings and will uphold t hem if supported by any evidence in the record. Smalls v. State , 422 S.C. 174, ___, 810 S.E.2d 836, 839 (2018). Furthermore, we affo rd great deference to a PCR cou rt'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 decision is controlled by an error of law. Jamison v. State , 410 S.C. 456, 465, 765 S.E.2d 123, 127 (2014).

LAW/ANALYSIS

To establish a claim of ineffective assistance of counsel, the defendant has the burden of proving "(1) counsel fa iled to render reasonably effe ctive assistance under prevailing professional norms; and (2) counsel's deficient perf ormance prejudiced the applicant's case." McKnight v. State , 378 S.C. 33, 40, 661 S.E.2d 354, 357 (2008). In order to establish prejudice when challenging a guil ty plea, a defendant must prove "there is a reasonable probability that, but for cou nsel's errors, the defendant would not have pled gu ilty, but would have gone to tr ial." Harden v. State

, 360 S.C. 405, 408, 602 S.E.2d 48, 49 (2004). The crux of the inquiry is whether

counsel's ineffective performance affected the outcome of the p lea process, not

whether the defendant would have been successful had he gone to trial. Alexander

v. State , 303 S.C. 539, 542, 402 S.E.2d 484, 485 (1991). As the United States Supreme Court stated in Hill v. Lockhart , 474 U.S. 52, 59 (1985), "[I]n order to satisfy the 'prejudice' requirement, the defendant must show th ere is a reasonable probability that, but for counsel's errors, he would not have p led guilty and would have insisted on going to trial."

Because the prejudice inquiry in a case involving a guilty ple a is so limited, it was error for the court of appe als to conduct an overwhelming e vidence analysis in

this case. See Smalls , 422 S.C. at ___, 810 S.E.2d at 843–47 (surveying cases that discuss overwhelming evidence—all of which involved a convictio n obtained at trial). The court of appeals initially acknowledged the correct standard and affirmed the PCR court's determination that Frierson failed to prove prejudice––and we affirm this decision. However, thereafter , the court proceeded to disc uss how the outcome at trial would have been the same as Frierson's guilty plea due to the overwhelming

evidence of guilt against him. The court of appeals exceeded th e proper scope of the prejudice inquiry, and accordingly, we modify the portion of the court's opinion which addresses overwhelming evid ence. We reiterate the prejudi ce analysis islimited to the outcome of the plea process—whether but for coun sel's deficiency, the

defendant would have declined t o plead and instead proceeded to trial.

Despite the court of appeals' erroneous application of the sta ndard of review, it correctly deferred to the PCR court's finding that Frierson was not prejudiced. Accordingly, we AFFIRM AS MODIFIED.

BEATTY, C.J., KITTREDGE, FEW and JAM ES, JJ., concur.