THE STATE OF SOUTH CAROLINA 

In The Supreme Court 

Anthony Sanders, Petitioner, 

v. 

State of South Carolina, Respondent. 

Appellate Case No. 2012-213162 

ON WRIT OF CERTIORARI 

Appeal from Dorchester County 

DeAndrea G. Benjamin, Circuit Court Judge 

Opinion No. 27531 

Submitted May 1, 2015 – Filed June 17, 2015 

REVERSED AND REMANDED 

Appellate Defender Susan B. Hackett, of Columbia, for 

Petitioner. 

Attorney General Alan M. Wilson and Assistant Deputy 

Attorney General David A. Spencer, of Columbia, for 

Respondent. 

 JUSTICE HEARN: In exchange for the State's promise not to seek the 

death penalty on three charges of murder, Anthony Sanders consented to a bench 

trial and waived his right to any appellate, post-conviction, or habeas corpus 

review. He was convicted of three counts of murder and sentenced to life 
 

 

imprisonment. His subsequent application for post-conviction relief (PCR) was 

dismissed based on the agreement. He now argues the PCR court erred in 

dismissing his petition without an evidentiary hearing. We reverse and remand. 

FACTUAL/PROCEDURAL BACKGROUND 

Sanders was charged with three counts of murder.1 During a pre-trial status 

conference, the parties presented a negotiated "Contractual Consent Order to 

Waive Rights to a Jury Trial" (the Agreement) to the trial court. The terms of the 

Agreement provided that in exchange for the State not seeking the death penalty, 

Sanders would agree to a bench trial and would also waive any right to further 

judicial review, including direct appeal, PCR, or habeas corpus proceedings. 

Prior to approving the Agreement, the trial court engaged in a lengthy 

colloquy with Sanders. Sanders said he had sufficient time to discuss the 

Agreement with his counsel and desired to freely enter into it. The court explained 

to Sanders he was giving up the right to have another court review its decision, and 

Sanders acknowledged he understood. The court discussed PCR and stated 

Sanders would be waiving the right to challenge his attorneys' actions afterward. 

Sanders said he had discussed the PCR statute with his lawyers and wanted to 

waive that right as well. Additionally, the court explained the process of a death 

penalty jury trial and explained Sanders was agreeing to waive his rights to a jury 

trial in exchange for the removal of the death penalty. Ultimately, the trial court 

accepted the Agreement, finding Sanders had freely and voluntarily entered into it. 

The case proceeded to a bench trial. The court again questioned Sanders 

about the Agreement before the trial began, and Sanders confirmed he still wished 

to waive his rights in exchange for eliminating the death penalty. The court 

ultimately convicted Sanders of all three murders and sentenced him to life 

imprisonment without the possibility of parole on each count. 

Sanders filed a pro se appeal to the court of appeals, which was dismissed 

for failure to serve and file a notice of appeal with proper proof of service. Sanders 

then filed the instant action for PCR alleging he received ineffective assistance of 

1

 The facts of the underlying triple homicide are horrific and involve the shooting 

deaths of Diane Grant, her twenty-year-old son Jatavius Devore, and her fifteenyear-old daughter Deanna Devore. Grant and Jatavius were found just inside the 

entrance to their apartment with single gunshot wounds to the head. Deanna was 

found behind the apartment, nude from the waist down and shot multiple times. 
 

 

 

counsel because his attorneys "misadvised him with misleading statements" which 

rendered his signing of the Agreement involuntary. The State moved to dismiss 

pursuant to the terms of the Agreement. 

A hearing was held before the PCR court. Sanders initially moved for a 

continuance based on his assertion that his attorneys failed to investigate potential 

witnesses, which the State opposed based on the Agreement. Sanders argued that 

his entering into the Agreement was not knowing and voluntary because his 

lawyers did not adequately apprise him of the rights he was waiving. He therefore 

requested an evidentiary hearing. 

The State argued the PCR court need only review the colloquy between the 

trial court and Sanders to determine whether he had voluntarily waived his right to 

an ineffective assistance of counsel claim, and if the court so found, the Agreement 

should be enforced. After reviewing the record and the Agreement, the PCR court 

agreed and dismissed the application. 

This Court granted certiorari to review the decision of the PCR court. 

STANDARD OF REVIEW 

On certiorari in a PCR action, this Court applies an "any evidence" standard 

of review. Moore v. State, 399 S.C. 641, 646, 732 S.E.2d 871, 873 (2012). 

Accordingly, the Court will affirm the PCR court's findings if any evidence of 

probative value exists in the record. Narciso v. State, 397 S.C. 24, 34–35, 723 

S.E.2d 369, 374 (2012). However, the Court will reverse the PCR judge's decision 

when it is controlled by an error of law. Pierce v. State, 338 S.C. 139, 145, 526 

S.E.2d 222, 225 (2000). 

LAW/ANALYSIS 

Sanders argues the PCR court erred in failing to allow him to present 

evidence that his waiver was entered into upon the advice of constitutionally 

ineffective trial counsel. We agree. 

The State, however, would frame the issue differently as a simple question 

of whether Sanders entered into the Agreement knowingly and voluntarily, which 

the PCR court found he did. The State therefore argues this Court is bound by its 

previous holding in Spoone v. State, 379 S.C. 138, 665 S.E.2d 605 (2008), where 
 

 

we held a knowing and voluntary waiver of PCR is enforceable. We believe the 

State misapprehends the issue raised by Sanders and thus Spoone is not dispositive 

here. 

In Spoone, the Court addressed the enforceability of a guilty plea agreement 

wherein Spoone waived his right to a direct appeal, PCR, and habeas corpus relief. 

Id. at 141, 665 S.E.2d at 606. Spoone filed an application for PCR, which the PCR 

court dismissed after finding his waiver was knowingly and voluntarily entered 

into. Id. On certiorari, Spoone argued his waiver was not knowing and intelligent, 

and therefore his case should be remanded to the PCR court for a merits hearing on 

his separate claims for ineffective assistance of counsel. Id at 141, 665 S.E.2d at 

607. In addressing his allegations, the Court first acknowledged that such waivers 

were allowed under federal law and noted the Court's practice of following federal 

jurisprudence in the area of plea agreements. Id. at 142, 665 S.E.2d at 607. The 

Court held such waivers were enforceable provided they are knowing and 

voluntary. Id. In affirming the PCR court's finding that Spoone's waiver was 

enforceable, the Court considered "the particular facts and circumstances of the 

instant case, including: (1) the background, experience and conduct of the accused, 

(2) the text of the plea agreement, and (3) the transcript of the plea hearing." Id. at 

143, 665 S.E.2d at 608. 

The State argues that under Spoone, the threshold issue is whether the 

waiver was knowingly and voluntarily entered into. Because the PCR court 

reviewed the record and found Sanders entered into the Agreement knowingly and 

voluntarily, the State urges the Court to affirm under Spoone. However, Spoone 

addressed only whether such waiver agreements may be enforced. Sanders readily 

concedes a waiver of PCR is permissible under this Court's jurisprudence, but 

raises the narrower issue of whether a defendant can challenge the attorney's 

conduct in advising a defendant to enter into the waiver. We view this issue as 

significantly different from the issue in Spoone. 

Instead, we agree with the wealth of federal jurisprudence which allows for 

ineffective assistance of counsel claims to proceed despite a previous waiver of 

collateral review where the challenge directly attacks the effectiveness of the 

advice to agree to that waiver. See e.g., United States v. White, 307 F.3d 336, 343 

(5th Cir. 2002) (holding "an ineffective assistance of counsel argument survives a 

waiver of appeal only when the claimed assistance directly affected the validity of 

that waiver or the plea itself"); Washington v. Lampert, 422 F.3d 864, 871 (9th Cir. 

2005) ("We therefore hold that a plea agreement that waives the right to file a 
 

 

federal habeas petition pursuant to 28 U.S.C. § 2254 is unenforceable with respect 

to an [ineffective assistance of counsel] claim that challenges the voluntariness of 

the waiver."); United States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001) 

("[W]e hold that a plea agreement waiver of postconviction rights does not waive 

the right to bring a § 2255 petition based on ineffective assistance of counsel 

claims challenging the validity of the plea or the waiver."). As the United States 

Court of Appeals for the Seventh Circuit succinctly stated: 

Justice dictates that a claim of ineffective assistance of counsel in 

connection with the negotiation of a cooperation agreement cannot be 

barred by the agreement itself—the very product of the alleged 

ineffectiveness. To hold otherwise would deprive a defendant of an 

opportunity to assert his Sixth Amendment right to counsel where he 

had accepted the waiver in reliance on delinquent representation. 

Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999). Although we 

recognize the value in allowing defendants to waive certain rights in exchange for 

concessions by the State, we cannot countenance a rule in which a defendant is 

precluded from challenging the very advice he received in agreeing to that waiver.2 

2

 Furthermore, we express our concern with the ethical implications of a waiver of 

ineffective assistance of counsel claims. A number of jurisdictions have 

acknowledged the conflict of interest that arises when an attorney counsels his 

client to waive the right to challenge his representation. See, e.g., Advisory 

Opinion of the Board of Commissioners on Grievances and Discipline, Ohio Adv. 

Op. 2001-6 (Ohio Bd. Com. Griev. Disp. 2001) ("[T]he Board advises that it is 

unethical under the Ohio Code of Professional Responsibility for a prosecutor to 

negotiate and a criminal defense attorney to advise a defendant to enter a plea 

agreement that waives the defendant's appellate or postconviction claims of 

ineffective assistance of trial counsel or prosecutorial misconduct."); Nebraska 

Ethics Advisory Opinion for Lawyers No. 14-03 (Neb. Jud. Eth. Comm. 2014) 

("[I]t [is] the opinion of the committee that a defense attorney may not advise a 

criminal defendant regarding a plea agreement which contains a waiver of the right 

to seek post-conviction relief on the basis of a claim of ineffective assistance of 

counsel. A conflict of interest for the attorney is present in such situations [and] is 

so serious as to be a conflict that cannot be waived by a defendant."); Waiver of 

Appellate and Postconviction Rights in Plea Agreement, N.C. Eth. Op. RPC 129 

(N.C. St. Bar. 1992) ("[T]he waiver of rights arising from the ineffective assistance 

of counsel or prosecutorial misconduct appears to be, and shall prospectively be 
 

Consequently, we hold that although a defendant may waive his right to 

collateral review, he is nevertheless still entitled to challenge whether the advice he 

received in agreeing to that waiver was constitutionally defective. Accordingly, 

the PCR court erred in not allowing Sanders to present evidence of ineffective 

assistance of counsel on the limited issue of his counsel's advice in connection with 

entering into the agreement. 

CONCLUSION 

Based on the foregoing, we reverse and remand to the PCR court for an 

evidentiary hearing on the narrow issue of whether Sanders received ineffective 

assistance of counsel in being advised to enter into the Agreement. 

TOAL, C.J., PLEICONES, BEATTY, and KITTREDGE, JJ., concur. 

deemed to be, in conflict with the ethical duties expressed or implied in the 

rules."); Utah State Bar Ethics Advisory Opinion Committee, Utah Eth. Op. 13-04 

(Utah St. Bar. 2013) ("The Committee concludes that it is a violation of Rule of 

Professional Conduct 1.7 for an attorney to counsel his client to enter into a plea 

agreement which requires the client to waive the attorney's prospective possible 

ineffective assistance at sentencing or other postconviction proceedings."). The 

Supreme Court of Kentucky issued a recent opinion finding the use of an 

ineffective assistance waiver constitutes professional misconduct. United States, 

ex rel. U.S. Attorneys for E. & W. Dists. of Ky. v. Ky. Bar Ass'n, 439 S.W.3d 136 

(Ky. 2014). In the opinion, it held such "waivers in plea bargain agreements (1) 

create[] a nonwaivable conflict of interest between the defendant and his attorney, 

(2) operate[] effectively to limit the attorney's liability for malpractice, and (3) 

induce[], by the prosecutor's insertion of the waiver into plea agreements, an 

ethical breach by defense counsel." Id. at 140. We find this practice especially 

troubling where, as here, the defendant enters into the agreement prior to a trial, 

which allows significantly more potential for error than a guilty plea.