THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE

CITED OR RELIED ON AS PRECEDENT IN ANY P ROCEEDING

EXCEPT AS PROVIDED BY RULE 268(d)(2) , SCACR.

THE STATE OF SOUTH C AROLINA In The Supreme Court

Clinton Folkes, Petitioner,

v.

State of South Carolina and Charles Williams, Jr., Warden of Perry Correctional Institution, Respondents.

Appellate Case No. 2023

- 000839

IN THE COURT'S ORIGINAL JURISDICTION

Memorandum Opinion No. 2024 -MO- 021

Heard September 11, 2024

– Filed October 2, 2024

RELIEF DENIED

Jason Scott Luck

, of Luck VI Ltd. Co.

, of Bennettsville

, for Petitioner.

Attorney General Alan McCrory Wilson and Assistant Attorney General Joshua Abraham Edwards, both of

Columbia , for Respondent s.

PER CURIAM : I n 2007, petitioner Folkes sliced the victim's neck with a knife in Columbia's Finlay Park. He was indicted for common law assault and battery with intent to kill (ABWIK). The jury convicted Folkes of ABWIK, and the trial court

sentenced him to life under the three

- strikes law. Folkes appealed the conviction tothe court of appeals, arguing the trial court's instruction on the lesser

- included

offense of common law assault and battery of a high and aggravated nature (ABHAN) was erroneous. Th e court of appeals affirmed

, but because of mistakes made by the South Carolina Commission on Indigent Defense (SCCID), a petition for rehearing with the court of appeals and a petition for a writ of certiorari with this

Court were never filed. Over the n ext thirteen years, Folkes attempted through

various avenues to obtain this Court's discretionary review o f his case

. We granted Folkes' petition for a common law writ of certiorari. Folkes requests this Court to either vacate his conviction or grant him a new trial. We deny both forms of relief

.

I.

In 2007, a n intoxicated and belligerent Folkes accosted James Reddick in Finlay Park and threatened him with a knife because Reddick was from Philadelphia but was wearing a New York hat. Folkes next approached the victim, Karem Jones, who was sitting on the ground conversing with Folkes' former girlfriend, and started "talking trash," stating he would "f

--- [Jones] up." Folkes punched Jones in the eye, and Jones punched Folkes in self

- defense . Folke s pulled out a knife and sliced Jones

in the arm and neck

. The surgeon who treated Jones testified the neck wound was only millimeters away from Jones's jugular vein and could have been fatal if it had been mere millimeters deeper

.

A s Jones attempted to flee, Folkes again advanced on him with the knife and

said "I'm going to f

--- ing kill you." Other witnesses also testified they heard Folkes

say after the attack that he "should have killed" Jones.

During Folkes' 2008 trial, the trial court instructed the jury on the elements of

common law ABWIK and on the elements of the lesser

- included offense of common law ABHAN. 1 However, the trial court refused to give the following instruction requested by Fol kes :

Absence of M alice is not a required element of AB H AN and the fact that a defendant acts with malice does not preclude a finding of

1 ABWIK and ABHAN no longer exist in the same form as they did at the time of Folkes' trial in 2008. In 2010, the General Assembly replaced ABWIK with the statutory offense of attempted murder. See S.C. Code Ann. § 16 -3- 29 (2015) . The General Assembly also codified ABHAN in 2010. See S.C. Code Ann. § 16 -3

- 600(B) (2015)

.ABHAN. A defendant may be convicted of ABHAN regardless of whether malice is present.

Instead, the trial court instructed the jury that ABHAN includes all of the elements of ABWIK except malice. Folkes timely objected to the jury instruction

and pursued the issue on direct appeal

. T he court of appeals affirmed in an unpublished opinion. State v. Folkes , Op. No. 2010

- UP

- 420 (S.C. Ct. App. f ile d September 24, 2010).

Folkes' appellate counsel was employed by SCCID. Appellate counsel left the employ of SCCID on or about September 14, 2010. On September 28, 2010

, a paralegal employed by SCCID sent a form letter to Folkes mistakenly advising him that his "petition for a writ of certiorari" had been denied by the court of appeals and

that his state court remedies had been exhausted. 2 Consequently, SCCID did not advise Folkes of three potential next steps

–– filing a p etition for rehearing with the court of appeals, filing a petition for a writ of certiorari with this Court, and pursuing

post

- conviction relief. The letter stated Folkes had one year to file "an application for a writ of habeas corpus in federal court," and the letter further mistakenly advised Folkes that appellate counsel had been relieved from further representation of him.

Folkes filed a PCR action in October 2010 alleging, in part, that appellate counsel was ineffective in failing to file a petition for rehearing with the court of appeals, thus depriving him of the ability to file a petition for a writ of certiorari with

th is Court. The PCR court denied the application and dismissed the action with prejudice. Citing pertinent authority, t he PCR court ruled a person "has no constitutional right to the effective assistance of counsel when seeking discretionary appellate revi ew" and appellate counsel had no duty to pursue rehearing or a writ of certiorari upon the conclusion of the direct appeal. See Wainwright v. Torna , 455

U.S. 586 (1982); Ross v. Moffitt , 417 U.S. 600 (1974); Douglas v. State , 369 S.C. 213, 631 S.E.2d 542 (2006); State v. Clinkscales , 318 S.C. 513, 458 S.E.2d 548 (1995).

In 2019 , Folkes filed a habeas corpus petition in federal court raising the same

issues he raised in his PCR action. The district court granted Folkes relief and ordered Folkes must receive discretionary review by this Court or be released from prison. Folkes v. Nelsen , No. 2:19

- 0760

- RMG, 2021 WL 62577 (D.S.C. Jan. 7, 2021)

. The Fourth Circuit reversed and remanded with instructions to deny Folkes'

2 The paralegal signed appellate counsel's name but circle d her own initials to

indicate she (the paralegal) signed appellate counsel's name. At the time of the letter, appellate couns el had not been employed by SCCID for two weeks.petition , holding Folkes did not have a constitutional right to effective assistance of

counsel following his first appeal of right. Folkes v. Nelsen , 34 F.4th 258 (4th Cir. 2022).

Folkes filed a petition for a common law writ of certiorari with this Court

, arguing (1) his conviction should be vacated because he was abandoned by appellate counsel at a critical stage, and (2) the trial court's ABHAN instruction was erroneous.

We granted Folkes' petition. By granting the common law writ of certiorari, this

C ourt granted the discretionary review Folkes claims he was denied as a result of the incorrect information and advice provided by SCCID . Therefore, we deny Folkes' request to vacate his conviction and instead review the merits of the jury instruction

issu e.

II.

Erroneous or incomplete jury instructions are subject to a harmless error analysis. See State v. Middleton , 407 S.C. 312, 317 n.2, 755 S.E.2d 432, 435 n.2 (2014). "When considering whether an error with respect to a jury instruction was harmless, we must ' determine beyond a reasonable doubt that the error complained

of did not contribute to the verdict.'" Id. at 317, 755 S.E.2d at 435 (quoting State v.

Kerr , 330 S.C. 132, 144

- 45, 498 S.E.2d 212, 218 (Ct. App. 1998)). "[O] ur inquiry is not what the verdict would have been had the jury been given the correct charge, but whether the erroneous charge contributed to the verdict rendered." Id. (quoting

Kerr , 3 3 0 S.C. at 145, 498 S.E.2d at 218). This is a fact

- intensive inquiry. Id. (citing State v. Jefferies , 316 S.C. 13, 22, 446 S.E.2d 427, 432 (1994)).

E ven assuming the trial court should have given Folkes' requested instruction,

the evidenc e overwhelmingly establishe d Folkes committed common law ABWIK

to the exclusion of common law ABHAN. Folkes provoked the confrontation with Jones, punched Jones in the eye, and w hen Jones defended himself, Folkes pulled a

knife and slashed Jones's neck, narrowly missing h is jugular vein. Folkes continued to pursue Jones when Jones tried to flee. All the while, Folkes told Jones he was going to kill him. T here is no reasonable probability the jury would have convicted

Folkes of common law ABHAN instead of common law ABWI K. Therefore, any

error in the ABHAN instruction did not contribute to the verdict rendered and was

harmless.

RELIEF DENIED

.KITTREDGE, C.J., JAMES , HILL, VERDIN, JJ., and Acting Justice Jennifer Blanchard McCoy, concur.