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 Su san 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-convic tion, or habeas corpus
review. He was convicted of three c ounts of murder and sentenced to lifeimprisonment. His subsequent applica tion for post-convictio n relief (PCR) was dismissed based on the agreement. He now argues the PCR court erred in dismissing his petition without an evidentia ry hearing. We re verse and remand.

FACTUAL/PROCEDUR AL BACKGROUND

Sanders was charged with three counts of murder. 1 During a pre-trial status conference, the parties presented a ne gotiated "Contractual Consent Order to Waive Rights to a Jury Trial" (the Agreemen t) 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 co rpus proceedings.

Prior to approving the Agreement, th e trial court engaged in a lengthy colloquy with Sanders. Sanders said he had suffi cient time to discuss the Agreement with his counsel and desired to freely enter into it. The court explained to Sanders he was giving up th e right to have another cour t review its decision, and Sanders acknowledged he understood. Th e court discussed PCR and stated Sanders would be waiving the right to cha llenge his attorneys' actions afterward.
Sanders said he had discussed the PCR st atute 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 wa s 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 fr eely and voluntarily entered into it.

The case proceeded to a bench trial. The court again questioned Sanders about the Agreement before the trial bega n, and Sanders confir med he still wished to waive his rights in exchange for el iminating the death penalty. The court ultimately convicted Sanders of all th ree 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 ap peals, 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 alle ging 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-o ld son Jatavius Devore, and her fifteen

year-old daughter Deanna Devore. Grant a nd Jatavius were found just inside the entrance to their apartment with single g unshot wounds to the head. Deanna was found behind the apartment, nude from the waist down and shot multiple times.counsel because his attorneys "misadvise d him with misleading statements" which rendered his signing of the Agreement i nvoluntary. The State moved to dismiss pursuant to the terms of the Agreement.

A hearing was held before the PCR c ourt. Sanders initially moved for a
continuance based on his assertion that hi s 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 de termine 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 re view the decision of the PCR court.

STANDARD OF REVIEW

On certiorari in a PCR action, this C ourt 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). Howe ver, 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 i ssue differently as a simple question of whether Sanders entered into the Ag reement knowingly and voluntarily, which
the PCR court found he did. The State th erefore argues this C ourt is bound by its previous holding in Spoone v. State , 379 S.C. 138, 665 S.E.2d 605 (2008), wherewe 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 enfor ceability 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 applica tion for PCR, which the PCR court dismissed after finding his waiv er 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 fede ral 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 find ing that Spoone's waiver was enforceable, the Court considered "the pa rticular 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 en tered 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 agreem ents may be enforced. Sanders readily concedes a waiver of PCR is permissibl e 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 jurispruden ce which allows for
ineffective assistance of counsel claims to proceed despite a previous waiver of collateral review where the challenge dir ectly 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 a ssistance of counsel argument survives a waiver of appeal only when the claimed a ssistance directly aff ected 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 agre ement that waives the right to file afederal 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 ag reement waiver of postconvi ction rights does not waive the right to bring a § 2255 petition base d 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 a ssistance of counsel in connection with the negotiation of a cooperation agreement cannot be barred by the agreement itself—th e very product of the alleged
ineffectiveness. To hold otherwis e would deprive a defendant of an opportunity to assert his Sixth Ame ndment right to counsel where he had accepted the waiver in relia nce 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 counten ance 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 clai ms. 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 Profe ssional 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 th at a defense attorney may not advise a criminal defendant regarding a plea agreemen t 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 conf lict that cannot be waived by a defendant."); Waiver of Appellate and Postconvictio n Rights in Plea Agreement, N.C. Eth. Op. RPC 129 (N.C. St. Bar. 1992) ("[T]he waiver of right s arising from the ineffective assistance of counsel or prosecutorial misconduct app ears to be, and shall prospectively beConsequently, we hold that althou gh a defendant may wa ive his right to collateral review, he is nevertheless still entitled to cha llenge whether the advice he received in agreeing to that waiver was constitutionally defective. Accordingly, the PCR court erred in not allowing Sande rs 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 advise d to enter into the Agreement.

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

deemed to be, in conflict with the ethi cal 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 conclude s 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 wa ive the attorney's prospective possible ineffective assistance at sentencing or other postconviction proceedings."). The Supreme Court of Kentucky issued a re cent opinion finding the use of an
ineffective assistance waiver cons titutes 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 de fendant and his attorney, (2) operate[] effectively to limit the atto rney'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.