THE STATE OF SOUTH CAROLINA

In The Supreme Court

Maunwell Ervin, Respondent,

v.

State of South Carolina, Petitioner.

Appellate Case No. 2020-000574

ON WRIT OF CERTIORARI

Appeal from Greenwood County

J. Mark Hayes II, Post-Conviction Relief Judge

Opinion No. 28128

Submitted May 16, 2022 – Filed January 11, 2023

REVERSED

Attorney General Alan McCrory Wilson and Senior 

Assistant Attorney General David A. Spencer, both of 

Columbia, for Petitioner.

Clarence Rauch Wise, of Greenwood, for Respondent.

JUSTICE KITTREDGE: We issued a writ of certiorari to review the award of 

post-conviction relief (PCR) to Respondent Maunwell Ervin. Ervin was tried 

twice for multiple offenses stemming from a search of Ervin's rented residence. 

The charges ranged from trafficking in cocaine to possession of a firearm. At the 

first trial, the jury acquitted Ervin of the firearm charge. The jury, however, was 

unable to reach a verdict on the trafficking charge, and the trial court declared a 
mistrial as to that offense. A second jury trial resulted in another mistrial on the 

trafficking charge after the jury was unable to reach a verdict yet again. Ervin and 

the State ultimately reached a negotiated plea agreement by reducing the 

trafficking charge to a lesser offense and imposing the minimum sentence. No 

direct appeal was taken.

Ervin then filed an application for PCR from his negotiated guilty plea. The PCR 

court granted relief on Ervin's claim of ineffective assistance of counsel, premised 

on counsel's failure to raise a double jeopardy objection based on the rule 

established in Yeager v. United States, 557 U.S. 110 (2009). We find the PCR 

court misapplied Yeager, thereby erring in granting Ervin relief. Accordingly, we 

reverse and reinstate Ervin's negotiated guilty plea and sentence.

I.

After law enforcement executed a search warrant on Ervin's residence, he was 

arrested and charged with trafficking in cocaine, trafficking in cocaine within 

proximity of a school, possession with intent to distribute (PWID) marijuana, 

PWID marijuana within proximity of a school, and possession of a controlled 

substance. The search revealed a gun, prompting the State to additionally charge

Ervin with possession of a firearm during the commission of a violent crime.1

 

Ervin proceeded to trial and was acquitted of the firearm charge, but the trial court 

declared a mistrial on the drug offenses after the jury was unable to reach a verdict.

Subsequently, the State retried Ervin on the remaining charges, which resulted in 

convictions for PWID marijuana, PWID marijuana within proximity of a school,

and possession of a controlled substance.2

 However, the trial court declared a 

second mistrial on the trafficking charges following another hung jury. Eventually, 

Ervin entered a negotiated guilty plea to a lesser trafficking offense and received 

 

1 See generally S.C. Code Ann. § 16-23-490 (2015) (outlining the offense of 

possession of a firearm during the commission of a violent crime); S.C. Code Ann. 

§ 16-1-60 (Supp. 2021) (defining violent crimes to include trafficking in cocaine).

2 Ervin filed a separate PCR application challenging the convictions that resulted

from the second trial. See Ervin v. State, Op. No. 2023-MO-003 (S.C. Sup. Ct. 

filed January 11, 2023).
the mandatory-minimum sentence of seven years' imprisonment. The proximity 

trafficking charge was dismissed as a result of the negotiated plea agreement.

Following entry of his guilty plea, Ervin became aware of a potential double

jeopardy argument in defense of the trafficking charge. In response, Ervin filed an 

application for PCR, alleging counsel was ineffective for failing to file a motion to 

dismiss the trafficking charge on double jeopardy grounds prior to his second trial 

and ultimate guilty plea.

At the PCR hearing, Ervin argued the State was prohibited from retrying him on 

the mistried trafficking charge because the acquittal on the firearm charge triggered 

the issue preclusion doctrine embodied in the Double Jeopardy Clause.3

 To 

support this argument, Ervin cited the Yeager decision, in which the United States 

Supreme Court held "that acquittals can preclude retrial on counts on which the 

same jury hangs." 557 U.S. at 125. Ervin's trial counsel acknowledged she 

became aware of this potential argument prior to the second trial, but after 

independently researching the issue and consulting with another experienced 

criminal attorney, trial counsel concluded the double jeopardy argument manifestly 

lacked merit and, therefore, never presented it to Ervin or raised it to the trial court.

The PCR court granted Ervin relief on the trafficking charge, concluding counsel 

was deficient for failing to raise a double jeopardy challenge based on the rule 

established in Yeager. The PCR court found Ervin's prior acquittal on the firearm 

charge necessarily determined he was not guilty of the underlying trafficking 

charge. As a result, the PCR court found Ervin was prejudiced by the deficient 

representation and dismissed the trafficking charge, finding double jeopardy

applied and Ervin was immune from re-prosecution as to that offense.

We granted the State's petition for a writ of certiorari to review the PCR court's 

decision. 

II.

In order to establish a claim of ineffective assistance of counsel, a PCR applicant 

must prove his counsel's deficient performance and resulting prejudice. Strickland 

v. Washington, 466 U.S. 668, 687 (1984). Thus, when challenging a guilty plea, a 

PCR applicant must show (1) counsel's performance fell below an objective 

standard of reasonableness, and (2) there is a reasonable probability that, but for 

 

3 U.S. Const. amend. V; S.C. Const. art. I, § 12.
counsel's errors, the applicant would not have pled guilty. Smith v. State, 369 S.C. 

135, 138, 631 S.E.2d 260, 261 (2006) (citing Hill v. Lockhart, 474 U.S. 52, 56–58 

(1985)). "The [applicant] is required to overcome the presumption that counsel 

was effective in order to receive relief." Cherry v. State, 300 S.C. 115, 118, 386 

S.E.2d 624, 625 (1989).

"Our standard of review in PCR cases depends on the specific issue before us." 

Smalls v. State, 422 S.C. 174, 180, 810 S.E.2d 836, 839 (2018). Generally, we 

"will uphold the PCR court's factual findings if there is any evidence of probative 

value in the record to support them." Thompson v. State, 423 S.C. 235, 239, 814 

S.E.2d 487, 489 (2018) (citing Sellner v. State, 416 S.C. 606, 610, 787 S.E.2d 525, 

527 (2016)). However, "[q]uestions of law are reviewed de novo, and we will 

reverse the PCR court if its decision is controlled by an error of law." Frierson v. 

State, 423 S.C. 257, 262, 815 S.E.2d 433, 435–36 (2018) (citing Jamison v. State, 

410 S.C. 456, 465, 765 S.E.2d 123, 127 (2014)). 

III.

The State argues the PCR court erred as a matter of law in granting Ervin's PCR 

application because Yeager is inapplicable, and counsel's performance was not 

deficient in failing to raise a double jeopardy challenge. We agree with the State 

that Ervin's claim of ineffective assistance of counsel is manifestly without merit. 

Trial counsel's determination that Yeager did not apply to Ervin's situation was 

correct.

The Double Jeopardy Clauses of the United States and South Carolina 

Constitutions prevent the State from making repeated attempts to convict an 

individual for the same offense. U.S. Const. amend. V ("[N]or shall any person be 

subject for the same offense to be twice put in jeopardy of life of limb . . . ."); S.C. 

Const. art. I, § 12 ("No person shall be subject for the same offense to be twice put 

in jeopardy of life or liberty . . . ."); see also Green v. United States, 355 U.S. 184, 

187 (1957) ("[T]he State with all its resources and power should not be allowed to

make repeated attempts to convict an individual . . . ."); Crist v. Bretz, 437 U.S. 28, 

33 (1978) (providing that, as a matter of equal importance, the Double Jeopardy 

Clause preserves the finality of judgments). Nonetheless, generally, the Double 

Jeopardy Clause does not preclude the State from re-prosecuting defendants on 

mistried counts unless the doctrine of issue preclusion applies. See United States v. 

Crabtree, 878 F.3d 1274, 1281 (11th Cir. 2018).
Issue preclusion "prevents a party from relitigating an issue that was decided in a 

previous action." State v. Hewins, 409 S.C. 93, 106, 760 S.E.2d 814, 821 (2014). 

Although the doctrine of issue preclusion originated in civil cases, its application 

has long since been extended to criminal proceedings. Id. at 106–07, 760 S.E.2d at 

821 (citing State v. Brown, 201 S.C. 417, 23 S.E.2d 381 (1942)). As recognized by 

the United States Supreme Court, issue preclusion in the criminal context is 

derived from the Double Jeopardy Clause. Id. at 107, 760 S.E.2d at 821; see also 

Harris v. Washington, 404 U.S. 55, 56 (1971) (per curiam) ("[Issue preclusion] in 

criminal trials is an integral part of the protection against double jeopardy 

guaranteed by the Fifth and Fourteenth Amendments.").

The United States Supreme Court first linked the issue preclusion inquiry to the 

Double Jeopardy Clause in Ashe v. Swenson, 397 U.S. 436 (1970). There, the 

Supreme Court held that the issue preclusion aspect of the Double Jeopardy Clause 

precludes the State from relitigating any issue of ultimate fact that was necessarily 

decided by a jury's verdict of acquittal in a prior trial. See id. at 443–45;4 cf. 

Hewins, 409 S.C. at 107, 760 S.E.2d at 821 ("[A] defendant in a criminal case may 

assert [issue preclusion] by relying on an acquittal in a first prosecution to bar 

litigation of those facts in a subsequent prosecution for a different offense."). The 

Supreme Court explained that the issue preclusion analysis "requires a court to 

examine the record of a prior proceeding, taking into account the pleadings, 

evidence, charge, and other relevant matter, and conclude whether a rational jury 

could have grounded its verdict upon an issue other than that which the defendant 

seeks to foreclose from consideration." Ashe, 397 U.S. at 444 (citation omitted) 

(internal quotation marks omitted).

Subsequently, in Yeager, the Supreme Court applied Ashe's issue preclusion 

analysis under the Double Jeopardy Clause to a case involving a partial mistrial on 

certain charges and a partial verdict of acquittal on others. The jury acquitted 

Yeager of securities and wire fraud (the fraud counts) but failed to reach a verdict 

 

4 In Ashe, six poker players were robbed by several masked men. 397 U.S. at 437. 

Ashe was charged with—and acquitted of—robbing one of the six players. Id. at 

438–39. The State then attempted to retry Ashe for the robbery of another poker 

player. Id. at 439. Because the sole issue in dispute in the first trial was whether 

Ashe was one of the masked robbers, the Supreme Court concluded the jury's 

acquittal precluded the State from trying him again for the robbery of another 

player during the same incident. Id. at 445–47.
on charges of insider trading, and the judge declared a mistrial on the insider 

trading charges. 557 U.S. at 115. Yeager argued the jury's acquittal of the fraud 

counts precluded the prosecution from retrying him on insider trading. Id. The 

Supreme Court acknowledged the factual distinction between Ashe and Yeager: 

Ashe involved a straight acquittal on the single count initially tried, whereas

Yeager involved an acquittal on some counts and a hung jury on others. Id. at 120. 

Nonetheless, the Supreme Court declared Ashe's reasoning controlled because a 

jury's inability to reach a verdict on any particular charge is a "nonevent" for 

double jeopardy purposes. Id. Accordingly, the Supreme Court ruled that "if the 

possession of insider information was a critical issue of ultimate fact in all of the 

charges against [Yeager], a jury verdict that necessarily decided that issue in his 

favor protect[ed] him from prosecution for any charge for which that [was] an 

essential element." Id. at 123.

In line with Ashe and Yeager, we must conduct a two-phase analysis in 

determining whether issue preclusion bars retrial of a hung count.5

 First, we must 

identify what issues, if any, the jury necessarily decided by its verdict of acquittal. 

See id. at 119–20. Second, we must examine whether the necessarily-decided issue 

was an "essential element" of the offense for which the State sought reprosecution. See id. at 123; see also id. at 120–22 (noting that an appellate court 

should not speculate about possible reasons underlying the jury's failure to reach a 

decision, but instead view the totality of the proceedings through a practical lens); 

cf. Hewins, 409 S.C. at 107, 760 S.E.2d at 821 ("[T]he rule of [issue preclusion] in 

criminal cases is not to be applied with the hypertechnical and archaic approach of 

a 19th century pleading book, but with realism and rationality." (quoting Ashe, 397 

U.S. at 444)). "'[T]he burden is on the defendant to demonstrate that the issue 

whose relitigation he seeks to foreclose was actually decided' by a prior jury's 

verdict of acquittal." Bravo-Fernandez v. United States, 137 S. Ct. 352, 359

(2016) (internal alteration marks omitted) (quoting Schiro v. Farley, 510 U.S. 222, 

233 (1994)); see also Yeager, 557 U.S. at 122 n.6 ("To preclude retrial, [the 

defendant] must show that the jury necessarily decided an issue in his favor."). 

IV.

 

5 See E.H. Schopler, Annotation, Modern status of doctrine of res judicata in 

criminal cases, 9 A.L.R.3d 203, 225 (1966) ("Application of the principle of [issue 

preclusion] in a criminal case has two phases: the first is to determine what the 

former judgment determined, and the second is to examine how that determination 

bears on the second case.").
A.

We first turn to what the jury actually decided when it acquitted Ervin of the 

firearm charge. Relying on Yeager, Ervin argues the jury's not-guilty verdict for 

possession of a firearm during the commission of a violent crime necessarily 

included a finding that he was not guilty of the predicate violent crime

(trafficking). We disagree.

In order to be convicted for possession of a firearm during the commission of a 

violent crime, the State must show the defendant had actual or constructive 

possession of the firearm and establish a nexus between the firearm and the 

underlying violent crime. See State v. Whitesides, 397 S.C. 313, 318–19, 725 

S.E.2d 487, 490 (2012) ("[W]e find that the General Assembly's purpose in 

enacting this statute was to penalize defendants who actually or constructively 

possess a firearm in order to further a violent crime and who thereby increase the 

attendant risk of harm. We therefore hold that such a nexus must be established in 

order to convict a defendant for possessing a firearm during the commission of a 

violent crime."). Therefore, a jury acquittal for possession of a firearm during the 

commission of a violent crime could rest on any one of three bases: (1) the 

defendant did not commit the predicate violent offense; or (2) the State failed to 

prove the defendant possessed the firearm; or (3) the State failed to establish the 

requisite nexus between the firearm and the violent crime. Because these are 

disjunctive bases on which to acquit, a jury need not decide whether the defendant 

committed the violent crime should it find the State failed to carry its burden on the 

second or third elements. 

Based on the record before us, we conclude there are a host of self-evident reasons 

why the firearm charge could have been resolved in Ervin's favor without 

necessarily impacting the drug-trafficking charge. See Yeager, 557 U.S. at 119–20 

(explaining issue preclusion does not bar retrial if "a rational jury could have 

grounded its verdict upon an issue other than that which the defendant seeks to 

foreclose from consideration" (citation omitted)). Merely as one example, Ervin's 

defense theory at trial was that law enforcement conducted a sloppy investigation, 

and the items found during the search—including the firearm—belonged to 

another individual living in the shared residence, not Ervin. Furthering the claims 

of a slipshod investigation, Ervin's counsel emphasized at trial and in the PCR 

hearing that although the serial number of the firearm was intact, law enforcement 

failed to check the database to determine to whom the firearm was registered. 

Thus, as Ervin himself argued, the jury could have acquitted him of the firearm 

charge after finding the State failed to prove Ervin was the individual who 

possessed the firearm found in the rental house.
In truth, a rational jury could have acquitted Ervin on the firearm charge for a 

number of reasons without ever passing judgment on whether he was the 

individual who possessed and trafficked the drugs found in the house. That crucial 

fact is wholly distinct from the situations presented in Ashe and Yeager, where 

there was but one issue in dispute on which the jury could have based its acquittal 

verdict. See Ashe, 397 U.S. at 445 ("[T]he record is utterly devoid of any 

indication that the first jury could rationally have found that an armed robbery had 

not occurred, or that [the poker player] had not been a victim of that robbery. The

single rationally conceivable issue in dispute before the jury was whether the 

[defendant] had been one of the robbers. And the jury by its verdict found that he 

had not." (emphasis added)); Yeager, 557 U.S. at 116, 126 (accepting as correct the 

lower court's determination that, because Yeager "did not dispute" part of the 

Government's theory on the fraud counts, there was only one factual determination 

the jury could have found when it acquitted Yeager for fraud, and that factual 

determination was a critical issue of ultimate fact in the hung charges against 

Yeager); cf. Crabtree, 878 F.3d at 1283 (distinguishing the case from Ashe and 

holding issue preclusion did not apply because "there was no single rationally 

conceivable issue in dispute before the jury when it considered the [acquitted] 

charges" (internal quotation marks omitted)).

Accordingly, Ervin has not demonstrated that the issue he seeks to foreclose from 

relitigation "was actually decided by [the] prior jury's verdict of acquittal." BravoFernandez, 137 S. Ct. at 359 (quoting Schiro, 510 U.S. at 233) (internal quotation 

marks omitted). He merely alleges, without substantiation, that the jury's verdict of 

acquittal on the firearm charge necessarily decided he was also not guilty of drug 

trafficking. Ervin's position is untenable. Particularly in light of the factual 

circumstances surrounding the firearm charge, the jury's acquittal verdict 

established only that the jury did not find beyond a reasonable doubt that Ervin 

possessed a firearm during the commission of a violent crime. The mere 

possibility that the jury may have determined Ervin did not commit a violent crime 

did not prevent the relitigation of that issue in a later trial; that possibility in no 

way rose to the necessarily-decided threshold set forth in Ashe and Yeager. See 

United States v. Haines, 485 F.2d 564, 565 (7th Cir. 1973) ("Unless the record of 

the prior proceeding affirmatively demonstrates that an issue involved in the 

second trial was definitely determined in the former trial, the possibility that it may 

have been does not prevent the relitigation of that issue." (citing Adams v. United 

States, 287 F.2d 701, 705 (5th Cir. 1961)); United States v. Howe, 590 F.3d 552, 

557 (8th Cir. 2009) (applying Yeager and stating that "our inquiry is not what the 

jury 'could have decided,' but rather [the defendant] must prove to us that the jury 

'necessarily decided' a given issue"); Crabtree, 878 F.3d at 1284 ("We reiterate that 
our task is to determine, objectively and in a practical frame, what facts a rational 

jury must necessarily have decided in producing a verdict. We are not to speculate 

as to the actual source of a verdict, nor to foreclose from relitigation all factual 

issues which theoretically could have been involved in an acquittal." (emphasis 

added) (citations omitted) (internal quotation marks omitted)).

B.

Though we find Ervin failed to meet his burden in the first phase of the issue

preclusion analysis,6 we further note that Ervin fails the second phase of the 

analysis as well, as his acquittal on the firearm charge did not foreclose any 

element necessary for a trafficking conviction.7

 The trafficking statute does not 

even mention possessing a weapon, much less require possession of a weapon as 

an element of the offense. See S.C. Code Ann. § 44-53-375(C). Thus, the jury's 

acquittal on the firearm charge is not dispositive of whether Ervin possessed or 

trafficked in drugs. Cf. State v. Henley, 428 S.C. 649, 659–60, 837 S.E.2d 639, 

644 (Ct. App. 2019) ("Here, [the defendant's] acquittal for larceny . . . is not 

dispositive of whether the State could satisfy the elements necessary for a first 

degree burglary conviction. In Yeager, there could be no insider trading if, as 

found by the jury, there had been no fraud. But an acquittal for larceny does not 

 

6 Cf. Schopler, supra note 5, at 225 (noting the analysis often ends at the first 

phase: "The first phase presents the greatest difficulties. In numerous cases the 

courts have declined to apply the principle of [issue preclusion], not because they 

were reluctant to apply it, but because they were unable to ascertain the [specific] 

basis upon which a general verdict of not guilty was reached by a jury." (footnote 

omitted)).

7 Compare S.C. Code Ann. § 16-23-490(A) ("If a person is in possession of a 

firearm or visibly displays what appears to be a firearm . . . during the commission 

of a violent crime and is convicted of committing or attempting to commit a 

violent crime . . . , he must be imprisoned five years, in addition to the punishment 

provided for the principal crime."), with S.C. Code. Ann. § 44-53-375(C) (2018) 

("A person who knowingly sells, manufactures, delivers, purchases, or brings into 

this State, or who provides financial assistance or otherwise aids, abets, attempts, 

or conspires to sell, manufacture, deliver, purchase, or bring into this State, or who 

is knowingly in actual or constructive possession or who knowingly attempts to 

become in actual or constructive possession of ten grams or more of . . . cocaine 

base . . . is guilty of a felony which is known as 'trafficking in . . . cocaine 

base' . . . ."). 
foreclose any element necessary for a first degree burglary conviction.").8

We flatly reject the notion that a not guilty verdict on the firearm charge precluded 

Ervin's retrial on the trafficking offense. As a matter of law, Ervin finds no refuge 

in Yeager.

V.

As evidenced by our analysis above, trial counsel was correct in concluding a 

double jeopardy claim lacked merit under these facts. Of course, no attorney is 

obligated to raise a meritless defense. See Butler v. State, 286 S.C. 441, 442, 334 

S.E.2d 813, 814 (1985) ("The proper measure of counsel's performance remains 

whether he has provided representation within the range of competence required of 

attorneys in criminal cases."); 15 S.C. Jur. Appeal and Error § 88 (Supp. 2021–

2022) ("Appellate counsel is not deficient for failure to raise [a] legally meritless 

claim on appeal.").

Moreover, the record shows trial counsel clearly considered the issue, consulted 

with other attorneys, and ultimately concluded Yeager did not apply to Ervin's 

case. During the PCR hearing, trial counsel highlighted law enforcement's failure 

to run the firearm's serial number and stated, "based on that fact . . . , it was [her] 

opinion that [] double jeopardy wouldn't extend because the basic factual 

circumstances [of the charges] were not as similar." Trial counsel also pointed out 

that, in her experience, a defendant "absolutely" could "traffic drugs without using 

a gun." Because trial counsel's conduct here was not deficient, the PCR court erred 

in finding counsel improperly failed to move for dismissal on double jeopardy 

grounds.

 

8 But cf. State v. Smith, 430 S.C. 226, 230 n.4, 845 S.E.2d 495, 497 n.4 (2020) 

(recognizing the inverse is true: a defendant must be "[]convicted of committing a 

violent crime before he can properly be found to have illegally possessed a weapon 

during that crime").
VI.

Based on the foregoing, we conclude trial counsel correctly determined that no 

double jeopardy violation occurred under Yeager. We therefore hold the PCR 

court erred in finding counsel's performance deficient and granting PCR. We 

reverse and reinstate Ervin's guilty plea and negotiated sentence. 

REVERSED.

BEATTY, C.J., HEARN, FEW and JAMES, JJ., concur.