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 OF APPEALS 

Appeal From Greenville County 

The Honorable G. Edward Welmaker, 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 Clayton Mitchell, III, and Senior 

Assistant Attorney General Karen Christine Ratigan, all 

of Columbia, for Respondent. 
 

 

 

 

 

 

JUSTICE HEARN: The issue before us is whether a severely mentally retarded 

individual should be afforded post-conviction relief (PCR) where 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 deficient nor was 

Ramirez prejudiced by counsel's representation. Although the court of appeals 

disagreed that plea counsel was not deficient, the court affirmed based on its 

application of the "any evidence" standard to the PCR court's prejudice finding. 

We now affirm in part and reverse in part, upholding the court of appeals' finding 

of deficiency but reversing its finding as to lack of prejudice to Ramirez. 

FACTUAL/PROCEDURAL BACKGROUND 

Ramirez was sixteen years old when he was indicted for assault and battery 

with intent to kill, kidnapping, first-degree criminal sexual conduct with a minor, 

first-degree burglary, and lewd act upon a child. Upon an order from the circuit 

judge, Ramirez was sent to the Department of Mental Health for an evaluation of 

his competency to stand trial.1 

Dr. Mayank H. Dalal conducted the examination, basing his finding of 

competency on an hour and a half forensic interview with Ramirez and a review of 

victim statements, police reports, 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 indicated 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 Code (Supp. 2016) 

states: 

(A) Whenever a judge of the circuit court . . . has reason to believe 

that a person on trial before him . . . is not fit to stand trial 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 capacity, 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 examination and observation to 

an appropriate facility at the Department of Mental Health . . . . 
 

 

 

 

 

 

 

 

Ramirez exhibited certain speech difficulties, had difficulty reading the words 

"solicitor," "evaluation," and "competency," and struggled to remember 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 years in [DJJ]."2 

Nevertheless, Dr. Dalal concluded Ramirez had "sufficient factual and rational 

understanding of the charges against him," and was therefore competent to stand 

trial. In reaching this conclusion, Dr. Dalal did not review any collateral sources, 

nor did he perform any psychological testing or consider a psychological 

diagnosis. 

Following his review of Dr. Dalal's report, plea counsel requested that 

Ramirez undergo a psychological examination with Dr. Stephen M. Gedo. 

According to plea counsel, he sought a second opinion because he 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 lasting 

between three and four hours. In addition to a clinical interview, Dr. Gedo based 

his conclusions on a number of psychological tests, Ramirez's medical 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 begin speaking until he was seven years old, was 

diagnosed with Attention Deficit-Hyperactivity Disorder (ADHD) when he was 

nine, and had only completed eighth grade by the time he was sixteen. 

Based on his observations, Dr. Gedo concluded Ramirez had poor judgment 

and an impaired ability to regulate his impulses. Dr. Gedo also found Ramirez to 

be highly malleable, easily confused, and suffering limitations across the entire 

range of cognitive function, resulting in severely limited language and reading 

comprehension skills. Furthermore, 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 intellectual level of a four to seven 

2

 In fact, Ramirez had been charged as an adult, and was facing anywhere from 

fifteen years to life without parole in the Department of Corrections. 

For reference, "an IQ of approximately [seventy] or below" indicates 

"[s]ignificantly subaverage intellectual functioning." AM. PSYCHIATRIC ASS'N, 

DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 49 (4th ed. 2000) 

[hereinafter DSM-IV]. 

3 
 

 

 

 

 

 

year 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 Assessment 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 evidence on the issue of 

whether Ramirez was mentally ill at the time the crimes were committed, but there 

was no request for a further competency evaluation. The circuit 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 charges, except the 

lewd act on a minor for which the circuit judge imposed a consecutive fifteen year 

sentence suspended upon five years' 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 mental examination. At 

the PCR hearing, plea counsel testified that Ramirez was very naïve and he 

questioned whether Ramirez fully understood what was going on prior to and at the 

plea hearing. Plea counsel further admitted he should have moved to have 

Ramirez's competency reevaluated after comparing the Gedo and Dalal 

evaluations; however, he gave no explanation for his failure to do so. In addition 

to plea counsel's testimony, Ramirez presented the Dalal and Gedo 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 severity 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 symptom 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 "major 

impairment in several areas, such as work or school, family relations, judgment, 

thinking, or mood (e.g., . . . child frequently beats up younger children, is defiant at 

home, and is failing at school)." Id. at 34. 
 

 

 

 

 

 

The PCR court dismissed Ramirez's application, finding plea counsel was 

not deficient and Ramirez was not prejudiced by counsel's representation. On 

review, the court of appeals found the record established at least a reasonable 

probability Ramirez was incompetent at the time of his plea and held the PCR 

court's finding of no deficiency was unsupported by the evidence. 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 evidence" standard to 

affirm the PCR court's order because the Dalal report was probative evidence 

supporting the PCR court's finding as to prejudice. Id. at 372, 776 S.E.2d at 113. 

This Court granted certiorari to review the court of appeals. 

ISSUE PRESENTED 

Did the court of appeals err in applying the "any evidence" standard 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 evaluation? 

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 unsupported 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 assistance of counsel, a PCR applicant must 

satisfy the two-prong Strickland test. Strickland v. Washington, 466 U.S. 668, 687 

(1984). First, the applicant must establish plea counsel's performance was 

deficient. Edwards, 392 S.C. at 456, 710 S.E.2d at 64. Second, generally the 

applicant must demonstrate plea counsel's "deficient performance prejudiced the 

[applicant] to the extent that 'there is a reasonable probability 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 petitioner was entitled to relief without needing to 

establish prejudice where plea counsel advised petitioner to plead guilty to an 

offense unsupported by the facts); Jordan v. State, 406 S.C. 443, 449, 752 S.E.2d 
 

 

 

538, 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 interest actually affected 

the adequacy of his representation need not demonstrate prejudice to obtain [postconviction] relief.'"); Lomax v. State, 379 S.C. 93, 103, 665 S.E.2d 164, 169 (2008) 

(holding once petitioner demonstrated an actual conflict of interest 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 intertwined with 

prejudice. Specifically, when establishing Strickland prejudice in the context of 

plea counsel's failure to request a mental competency evaluation, "the [applicant] 

need only show a 'reasonable probability' that he was . . . incompetent 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 for 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. Specifically, Ramirez contends 

he presented sufficient evidence at the PCR hearing to establish 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 the court of appeals 

misapplied the "any evidence" standard by relying on improper evidence to affirm 

the PCR court's order. We disagree with this portion of Ramirez's argument and 

find that, had an "any evidence" analysis been appropriate in this case, Dr. Dalal's 

evaluation would have been probative evidence to support the PCR court's order on 

the issue of prejudice. 
 

 

 

 

 

 

 

 

appeals should have reversed without performing an "any evidence" 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 evidence 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 communicative and intellectual limitations should 

have prompted plea counsel to seek an additional competency examination. Id. 

Additionally, the court of appeals held plea counsel's decision to pursue pleas of 

guilty but mentally ill, as opposed to requesting another competency 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 counsel's testimony at the 

PCR hearing. Id. at 371, 776 S.E.2d at 112 (emphasis added). 

Once a PCR applicant has established 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 pled 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 would not have pled guilty") (internal quotations 

6 Initially we note there are no findings of fact contained within 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 upholding 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 judge must make 

specific findings of fact and state expressly the conclusions of law relating to each 

issue presented. The failure to 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) (holding that if a party fails to timely appeal a 

ruling by a lower court, that ruling becomes the law of the case). 
 

omitted). "A reasonable probability is a probability sufficient 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 report, but from 

his own interactions with Ramirez, that Ramirez suffered from severe mental 

retardation, was functioning at the level of a four- to seven-year-old, and had 

difficulty in comprehending the legal proceedings. Accordingly, we affirm the 

court of appeals' holding that Ramirez's plea counsel was deficient 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 of appeals correctly 

noted, Dr. Gedo's report and plea counsel's testimony at the PCR hearing clearly 

established a reasonable, if not strong, likelihood that Ramirez 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 only show there was a 

reasonable probability he was incompetent at the time of his plea. 308 S.C. at 233, 

417 S.E.2d at 596; 385 S.C. at 459, 596 S.E.2d at 51. Once such a reasonable 

probability has been established, prejudice is also demonstrated. 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 vacated and this matter is remanded to the court of 

general sessions. 

BEATTY, C.J., KITTREDGE and FEW, JJ., concur. Acting Justice Costa 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 scope of review requires that we uphold the decision 

of the Court of Appeals' majority: Dr. Dalal's finding that petitioner was 

competent is evidence of probative 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 justice to allow this 

severely mentally disabled individual's plea to stand, and I believe 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 review, I reluctantly dissent.