THE STATE OF SOUTH CAROLINA In The Supreme Court

Ruben Ramirez, Petitioner,

v.

State of South Carolina, Respondent.

Appellate Case No. 2015-002063

ON WRIT OF CERTIORARI TO THE COURT O F APPEALS

Appeal From Greenville County

The Honorable G. Edward W elmaker, Post-Conviction Relief Judge

Opinion No. 27696 Heard November 7, 2016 – Filed January 5, 2017

AFFIRMED IN PART AND REVERSED IN PART

Appellate Defender Wanda H. Carter, of Columbia, for

Petitioner.

Attorney General Alan McCrory Wilson, Assistant Attorney General James Clayt on Mitchell, III, and Senior Assistant Attorney General K aren Christine Ratigan, all of Columbia, for Respondent.JUSTICE HEARN: The issue before us is whether a severely mentally retarded individual should be afforded pos t-conviction relief (PCR) wher e his plea counsel failed to request an independent competency evaluation prior to his guilty plea. The PCR court denied relief, finding plea counsel was not defic ient nor was Ramirez prejudiced by counsel's representation. Although the c ourt of appeals disagreed that plea counsel was not deficient, the court affirm ed based on its application of the "any evidence" standard to the PCR court's p rejudice finding. We now affirm in part and reverse in part, upholding the court of appeals' finding of deficiency but reversing its f inding as to lack of prejudice to Ramirez.

FACTUAL/PROCEDUR AL BACKGROUND

Ramirez was sixteen years old wh en he was indicted for assault and battery with intent to kill, kidnapping, first-degree criminal sexual c onduct with a minor, first-degree burglary, and lewd act upon a child. Upon an orde r from the circuit judge, Ramirez was sent to the De partment of Mental Health for an evaluation of his competency to stand trial. 1

Dr. Mayank H. Dalal conducted the examination, basing his findi ng of competency on an hour and a half forensic interview with Ramire z and a review of victim statements, police repor ts, photographs, and Department of Juvenile Justice (DJJ) records. According to Dr. Dalal's report, Ramirez denied having any history of medical or psychological problems. Additionally, Ramirez in dicated he was only in the eighth grade and received mostly C's and D's. Dr. Dalal also noted

1 The record does not reflect why the circuit judge ordered the examination. However, we note Section 44-23-410(A) of the South Carolina Cod e (Supp. 2016)

states: (A) Whenever a judge of the circuit court . . . has reason to belie ve that a person on trial before him . . . is not fit to stand tri al because the person lacks the capacity to understand the proceedings against him or

to assist in his own defense as a result of a lack of mental ca pacity, the judge shall: (1) order examination of the person by two examiners designated by the Department of Mental Health if the person is suspected of having a mental illness or . . . (2) order the person committed for ex amination and observation to an appropriate facility at the Department of Mental Health . .

. .Ramirez exhibited certain speech difficulties, had difficulty r eading the words "solicitor," "evaluation," and "c ompetency," and struggled to r emember the name of his attorney. Moreover, despite acknowledging the serious nature of the charges against him, Ramirez believed he was only facing "up to a few y ears in [DJJ]." 2
Nevertheless, Dr. Dalal concluded Ramirez had "sufficient factu al and rational understanding of the charges against him," and was therefore competent to stand trial. In reaching this conclusi on, Dr. Dalal did not review a ny collateral sources, nor did he perform any psychological testing or consider a psyc hological diagnosis.

Following his review of Dr. Dalal's report, plea counsel reques ted that Ramirez undergo a psychological examination with Dr. Stephen M. Gedo. According to plea counsel, he sought a second opinion because h e was concerned Ramirez did not fully understand the gravity of his offenses or the charges he

faced. Dr. Gedo met with Ramirez five times, with each appointment las ting

between three and four hours. In addition to a clinical interv iew, Dr. Gedo based his conclusions on a number of psychological tests, Ramirez's m edical records, and collateral interviews conducted with Ramirez's family to obtain historical information Ramirez may not have been able to accurately convey due to his intellectual limitations. In particular, Dr. Gedo noted Ramirez had been mentally retarded from birth, did not beg in speaking until he was seven years old, was diagnosed with Attention Deficit- Hyperactivity Disorder (ADHD) when he was nine, and had only completed eight h grade by the time he was si xteen.

Based on his observations, Dr. Gedo concluded Ramirez had poor judgment and an impaired ability to regulate his impulses. Dr. Gedo als o found Ramirez to be highly malleable, easily conf used, and suffering limitations across the entire range of cognitive function, resulting in severely limited lang uage and reading comprehension skills. Furthermo re, Dr. Gedo determined Ramirez had a general IQ level between thirty-one and forty-four, falling within the range of Severe Mental Retardation, 3 and was functioning at the inte llectual level of a four to sev en

2 In fact, Ramirez had been charged as an adult, and was facing anywhere from fifteen years to life without pa role in the Department of Corre ctions.

For reference, "an IQ of approxi mately [seventy] or below" ind icates "[s]ignificantly subaverage i ntellectual functioning." A M . P SYCHIATRIC ASS ' N

, D IAGNOSTIC AND S TATISTICAL M ANUAL OF M ENTAL D ISORDERS 49 (4th ed. 2000) [hereinafter DSM-IV]. 3year old child. In conclusion, Dr. Gedo diagnosed Ramirez with an adjustment disorder with mixed disturbance of emotions and conduct, severe mental retardation, and a Global Assessm ent of Functioning (GAF) score of thirty-five out

of one hundred. 4 However, Dr. Gedo rendered no opinion as to Ramirez's competency to stand trial.

Ultimately, Ramirez pled guilty but mentally ill to all the charges. Both the Dalal evaluation and the Gedo report were submitted into eviden ce on the issue of whether Ramirez was mentally ill at the time the crimes were co mmitted, but there was no request for a further competency evaluation. The circui t judge accepted Ramirez's plea, noting his "IQ level [was] as low as any [the judge had] ever seen." Ramirez was sentenced to concurrent twenty-year terms for all c harges, except the lewd act on a minor for which the circuit judge imposed a conse cutive fifteen year sentence suspended upon five year s' probation for mental health counseling.

Ramirez did not appeal his conviction, but applied for PCR, arguing his plea counsel was deficient in failing to obtain an independent menta l examination. At the PCR hearing, plea counsel t estified that Ramirez was very n aïve and he questioned whether Ramirez fully understood what was going on p rior to and at the plea hearing. Plea counsel furth er admitted he should have mov ed to have Ramirez's competency reevaluated after comparing the Gedo and D alal evaluations; however, he gave no explanation for his failure to do so. In addition to plea counsel's testimony, Ramirez presented the Dalal and Ge do reports and a few pages from the DSM-IV.

4 The GAF score is a "judgment of the individual's overall level of functioning." DSM-IV, supra note 5, at 32. "The GAF scale is divided into [ten] ranges of functioning," and each range has two components: symptom severi ty and functioning. Id. "The GAF rating is within a particular decile if either the symptom severity or the level of functioning falls within the range." Id. (emphasis in original). However, "in situations where the individual's s ymptom severity and level of functioning are discordant, the final GAF rating always reflects the worse

of the two." Id. at 33. Ramirez's GAF score of thirty-five indicates he has "m ajor impairment in several areas, such as work or school, family rel ations, judgment, thinking, or mood (e.g., . . . child frequently beats up younge r children, is defiant at home, and is failing at school)." Id. at 34.The PCR court dismissed Ramirez's application, finding plea cou nsel was not deficient and Ramirez was not prejudiced by counsel's repre sentation. On review, the court of appeals found the record established at le ast a reasonable probability Ramirez was incompeten t at the time of his plea and held the PCR court's finding of no deficiency was unsupported by the evidenc e. Ramirez v.

State , 413 S.C. 351, 369–73, 776 S.E .2d 101, 111–13 (Ct. App. 2015). Nevertheless, the court held it was constrained by the "any evi dence" standard to

affirm the PCR court's order b ecause the Dalal report was proba tive evidence supporting the PCR court's finding as to prejudice. Id. at 372, 776 S.E.2d at 113.

This Court granted certiorari t o review the court of appeals.

ISSUE PRESENTED

Did the court of appeals err in applying the "any evidence" st andard to affirm the PCR court's finding that Ramirez was not prejudiced as a result of plea counsel's failure to request an additional competency evaluatio n?

STANDARD OF REVIEW

In reviewing a PCR court's decision, this Court will uphold the PCR court's findings if there is any evidence of probative value to support them. Suber v. State

, 371 S.C. 554, 558, 640 S.E.2d 884, 886 (2007). However, if the PCR court 's conclusions are controlled by an error of law or are unsupporte d by the evidence,

this Court must reverse the decision. Edwards v. State , 392 S.C. 449, 455, 710 S.E.2d 60, 64 (2011).

When alleging ineffective assist ance of counsel, a PCR applican t must satisfy the two-prong Strickland test. Strickland v. Washington , 466 U.S. 668, 687 (1984). First, the applicant must establish plea counsel's per formance was

deficient. Edwards , 392 S.C. at 456, 710 S.E.2d at 64. Second, generally the applicant must demonstrate plea counsel's "deficient performanc e prejudiced the [applicant] to the extent that 'there is a reasonable probabili ty that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Cherry v. State , 300 S.C. 115, 117–18, 386 S.E. 2d 624, 625 (1989) (quoting

Strickland , 466 U.S. at 694). But see Sellner v. State , 416 S.C. 606, 612, 787 S.E.2d 525, 528 (2016) (holding pe titioner was entitled to reli ef without needing to establish prejudice where plea counsel advised petitioner to pl ead guilty to an offense unsupported by the facts); Jordan v. State , 406 S.C. 443, 449, 752 S.E.2d538, 541 (2013) (quoting Staggs v. State , 372 S.C. 549, 551–52, 643 S.E.2d 690, 692 (2007)) ("'[A] defendant who shows that a conflict of inter est actually affected the adequacy of his representa tion need not demonstrate prejudi ce to obtain [post

conviction] relief.'"); Lomax v. State , 379 S.C. 93, 103, 665 S.E.2d 164, 169 (2008) (holding once petitioner demonstrated an actual conflict of int erest she did not have to show prejudice, but was entitled to PCR).

When a PCR applicant raises issues of competency in the context of a plea proceeding, the two-prong Strickland analysis still applies; however, because of the nature of the claim, proof of deficiency of counsel is inte rtwined with prejudice. Specifically, when establishing Strickland prejudice in the context of plea counsel's failure to request a mental competency evaluatio n, "the [applicant] need only show a 'reasonable probability' that he was . . . inc ompetent at the time of the plea." Jeter v. State , 308 S.C. 230, 233, 417 S.E.2d 594, 596 (1992); see also Matthews v. State , 358 S.C. 456, 458–60, 596 S.E.2d 49, 50–51 (2004) (expanding the reasonable probability standard as the burden fo r proving both the deficiency of counsel and the prejudice prongs).

LAW/ANALYSIS

Ramirez argues the court of appeals erred in affirming the PCR court's order pursuant to the "any evidence" standard of review. Specificall y, Ramirez contends he presented sufficient eviden ce at the PCR hearing to establis h a reasonable probability that he was incompetent at the time of his plea, and the PCR court erred in denying his application for relief. 5 Therefore, Ramirez argues the court of

5 Ramirez attempts to bolster this argument by further asserting that the Dalal report was incomplete and lacked probative value to support the PCR court 's conclusion with respect to prejudice. Thus, Ramirez contends t he court of appeals misapplied the "any evidence" s tandard by relying on improper evidence to affirm the PCR court's order. We disagree with this portion of Ramire z's argument and find that, had an "any evidence" analysis been appropriate in t his case, Dr. Dalal's evaluation would have been proba tive evidence to support the PC R court's order on the issue of prejudice.appeals should have reversed without performing an "any evidenc e" analysis. We

agree. 6

The court of appeals held Ramirez's plea counsel was deficient in failing to obtain an independent competency evaluation, finding that the e vidence did not support the PCR court's finding of no deficiency. 7 Ramirez , 413 S.C. at 369–70, 776 S.E.2d at 111. In particular, the court noted the Gedo report and plea counsel's

own awareness of Ramirez's comm unicative and intellectual limit ations should have prompted plea counsel to seek an additional competency exa mination. Id. Additionally, the court of appeals held plea counsel's decision to pursue pleas of guilty but mentally ill, as opposed to requesting another compe tency evaluation, was not a valid strategy. Id . at 370, 776 S.E.2d at 111–12. Moreover, the court

held "there was at least a reasonable probability Ramirez was incompetent at the time of his pleas," based upon Dr. Gedo's report and plea couns el's testimony at the PCR hearing. Id. at 371, 776 S.E.2d at 112 (emphasis added).

Once a PCR applicant has establis hed his counsel was deficient in failing to obtain a mental competency evaluation, he is entitled to relief if he demonstrates a reasonable probability that he was incompetent at the time he p led guilty. Jeter

, 308 S.C. at 233, 417 S.E.2d at 596; Matthews , 385 S.C. at 459, 596 S.E.2d at 51;

see also Sellner , 416 S.C. at 611, 787 S.E.2d at 527 (holding a PCR applicant demonstrates prejudice by showing "there is a reasonable probability that, but for counsel's errors, the defendant w ould not have pled guilty") (i nternal quotations

6 Initially we note there are no findings of fact contained with in the PCR court's order to support its conclusion that Ramirez was not prejudiced by plea counsel's representation. As such, the court of appeals erred in upholdi ng the prejudice finding under the "any evidence" standard of review. See, e.g.

, Marlar v. State

, 375 S.C. 407, 408–09, 653 S.E.2d 266, 266 (2007) ("[T]he PCR ju dge must make specific findings of fact and state expressly the conclusions o f law relating to each issue presented. The failure t o specifically rule on the issues precludes appellate review of the issues."). However, Ramirez has not argued this issue on appeal.

7 Since neither party appealed the court's holding on this issue , it is the law of the

case. Hudson ex rel. Hudson v. Lancaster Convalescent Ctr. , 407 S.C. 112, 119– 20, 754 S.E.2d 486, 490 (2014) (ho lding that if a party fails t o timely appeal a ruling by a lower court, that ru ling becomes the law of the case).omitted). "A reasonable probability is a probability sufficien t to undermine

confidence in the outcome." Gallman v. State , 307 S.C. 273, 276, 414 S.E.2d 780, 782 (1992).

Plea counsel was clearly on notice, not only from the Gedo repo rt, but from his own interactions with Ramirez, that Ramirez suffered from s evere mental retardation, was functioning at the level of a four- to seven-y ear-old, and had difficulty in comprehending the legal proceedings. Accordingly , we affirm the court of appeals' holding that Ramirez's plea counsel was defic ient in not requesting an additional competency evaluation.

However, the court of appeals erred in affirming the PCR court' s finding of no prejudice under the "any evidence" standard. As the court o f appeals correctly noted, Dr. Gedo's report and plea counsel's testimony at the PC R hearing clearly established a reasonable, if not strong, likelihood that Ramire z was incompetent to plead guilty. Our opinions in Jeter and Matthews make it clear that when competency to enter a plea is at issue, a PCR applicant need on ly show there was a reasonable probability he was incompetent at the time of his pl ea. 308 S.C. at 233, 417 S.E.2d at 596; 385 S.C. at 459, 596 S.E.2d at 51. Once suc h a reasonable probability has been established, prejudice is also demonstrate d. See Matthews

, 385 S.C. at 459–60, 596 S.E.2d at 51. Therefore, since Ramirez has satisfied both prongs of the Strickland test, he is entitled to relief.

CONCLUSION

We affirm the court of appeals' finding of deficient performance by plea counsel and reverse its holding that Ramirez was not prejudiced by that deficiency. Accordingly, Ramirez's plea is v acated and this matter is reman ded to the court of general sessions.

BEATTY, C.J., KITTREDGE and FEW, JJ., concur. Acting Justice C osta M. Pleicones, dissenting in a separate opinion.ACTING JUSTICE PLEICONES : I regret that I am unable to join the majority opinion as I believe that our sc ope of review requires that we uphold the decision of the Court of Appeals' majority : Dr. Dalal's finding that pe titioner was competent is evidence of proba tive value that supports the PCR judge's finding that petitioner was not prejudiced by counsel's failure to obtain an independent competency evaluation. Jeter v. State , 308 S.C. 230, 417 S.E. 2d 594 (1992). In my opinion, however, it is shocking to the universal sense of just ice to allow this severely mentally disabled individual's plea to stand, and I be lieve that were relief sought pursuant to Butler v. State , 302 S.C. 466, 397 S.E.2d 87 (1990), this Court would likely issue a writ of habeas corpus.

In light of our scope of revi ew, I reluctantly dissent.