THE STATE OF SOUTH CAROLINA 

In The Supreme Court 

Maurice C. Kinard, Petitioner, 

v. 

State of South Carolina, Respondent. 

Appellate Case No. 2015-001205 

Appeal From Richland County 

The Honorable Diane S. Goodstein, Circuit Court Judge 

The Honorable Brooks P. Goldsmith, Post-Conviction 

Judge
	

Opinion No. 27687 

Submitted November 14, 2016 – Filed December 7, 2016 

AFFIRMED 

Appellate Defender Kathrine Haggard Hudgins, of the 

South Carolina Commission on Indigent Defense, 

Division of Appellate Defense, of Columbia, for 

Petitioner. 

Attorney General Alan M. Wilson and Assistant Attorney 

General Jessica Elizabeth Kinard, both of Columbia, for 

Respondent. 

PER CURIAM: Petitioner seeks a writ of certiorari to review the denial of his 

application for post-conviction relief (PCR). We grant the petition for a writ of 

certiorari, dispense with further briefing, and proceed with a review of the direct 

appeal issue pursuant to Davis v. State, 288 S.C. 290, 342 S.E.2d 60 (1986). 
Petitioner contends the PCR judge erred in finding plea counsel was not ineffective 

in failing to file a notice of appeal on petitioner's behalf. We agree. 

Petitioner testified at the PCR hearing that he asked plea counsel, promptly after 

sentencing, to file a notice of appeal. Plea counsel testified he could not recall if 

petitioner made such a request at the conclusion of the plea proceeding, but 

counsel acknowledged he received a letter from petitioner after the time to appeal 

had expired. Counsel testified he did not see a reason to appeal. 

The PCR judge found plea counsel believed an appeal would be frivolous and 

"credibly emphasized" that he and petitioner "worked hard for the plea deal and 

received what [c]ounsel testified [w]as a near best case scenario in being able to 

plead to voluntary manslaughter." The PCR judge found petitioner was advised by 

the plea judge that if he wished to appeal, he would have ten days to do so. 

Finally, the PCR judge found petitioner failed to present any evidence showing he 

may be prejudiced by the alleged deficiency, as there were no objections made at 

the guilty plea proceeding and plea counsel had no reason to file a notice of appeal. 

We find the PCR judge applied the wrong standard in evaluating petitioner's 

allegation that plea counsel was ineffective in failing to file a notice of appeal after 

petitioner requested he do so. The merits of any such appeal, while relevant to an 

allegation that counsel failed to advise a defendant of the right to appeal, are not 

relevant where a PCR applicant alleges counsel failed to file an appeal after being 

asked to do so. Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 

985 (2000). A lawyer who disregards specific instructions from the defendant to 

file a notice of appeal acts in a manner that is professionally unreasonable 

regardless of whether the appeal would have had merit. Id., at 477. "[W]hen 

counsel's constitutionally deficient performance deprives a defendant of an appeal 

that he otherwise would have taken, the defendant has made out a successful 

ineffective assistance of counsel claim entitling him to an appeal." Id., at 484. The 

defendant need not show that his hypothetical appeal might have had merit, only 

that but for counsel's deficient conduct, the defendant would have appealed. Id., at 

486. 

Because the PCR judge failed to apply the proper standard in evaluating 

petitioner's claim, and instead evaluated the claim on the improper basis of whether 

the appeal would have been successful, we reverse the finding that plea counsel 

was not ineffective in failing to file a notice of appeal and proceed with a review of 

petitioner's direct appeal issue. See Hiott v. State, 381 S.C. 622, 674 S.E.2d 491 
(2009)(The decision of the PCR judge may be reversed when it is controlled by an 

error of law.). 

Petitioner's conviction and sentence are affirmed pursuant to Rule 220(B)(1), 

SCACR, and the following authorities: Rule 203(d)(1)(B)(iv), SCACR (If the 

appeal is from a guilty plea, the appellant must file a written explanation showing 

that there is an issue which can be reviewed on appeal. The explanation should 

identify the issue(s) to be raised on appeal and the factual basis for the issue(s) 

including how the issue(s) was raised below and the ruling of the lower court on 

that issue(s). If an issue was not raised to and ruled on by the lower court, the 

explanation must include argument and citation to legal authority showing how the 

issue can be reviewed on appeal. If the appellant fails to make a sufficient 

showing, the notice of appeal may be dismissed.); State v. Johnston, 333 S.C. 459, 

462 510 S.E.2d 423, 425 (1999)("[T]his Court has consistently held that a 

challenge to sentencing must be raised at trial, or the issue will not be preserved for 

appellate review."). 

AFFIRMED. 

PLEICONES, C.J., BEATTY, KITTREDGE, HEARN and FEW, JJ., concur.