THE STATE OF SOUTH CAROLINA In The Supreme Court

Samuel Brown Jr., Petitioner,

v.

State of South Carolina, Respondent.

Appellate Case No. 2016-002537

ON WRIT OF CERTIORARI

Appeal from Berkeley County Kristi Lea Harrington, Plea Court Judge Jean Hoefer Toal, Post- Conviction Relief Judge

Opinion No. 27796 Submitted April 19, 2018 – Filed May 9, 2018

REVERSED AND REMANDED

Appellate Defender Laura Ruth Baer, of Columbia, for

Petitioner.

Attorney General Alan McCrory Wilson and Assistant Attorney General Rasheeda Cl eveland, both of Columbia, for Respondent.

PER CURIAM: Samuel Brown Jr. filed a petition for a writ of certiorari see king appellate review of an order gr anting summary judgment to the State in his application for post-conviction relief (PCR). The PCR court di smissed the action on the ground Brown had completed serving his sentence and did not allege he wassuffering collateral consequences of the conviction. We grant the petition, dispense with briefing, reverse, and remand to the PCR court for a heari ng on the merits.

Brown pled guilty to possession with intent to distribute marij uana (PWID) on May 20, 2014, and the court sentenced him to three years in prison. At the time of his plea, Brown was already serving a ten-year sentence for trafficking in cocaine. The PWID sentence began on June 25, 2013, due to credit for time se rved, and was imposed concurrent to the ten-y ear sentence. Brown did not app eal.

Brown filed an application for PCR on November 20, 2014. No hearing was held until September 16, 2016. By then, Brown had completed his PWI D sentence, 1 although he remained incarcerated on the ten-year sentence. At the PCR hearing,

the State made a motion for summary judgment, arguing Brown's c laim was moot because he had already completed his PWID sentence. The PCR co urt granted the State's motion for summary judgment, and dismissed the PCR appl ication. We find

the circuit court erred.

Post-conviction relief is a statutory remedy in South Carolina. See S.C. Code Ann. §§ 17-27-10 to -160 (2014 & S upp. 2017) (Post-Conviction Proced ure Act). Therefore, we begin our analysis with the text of the Act, whic h provides,

Any person who has been convi cted of, or sentenced for,

a crime and who claims: (1) That the conviction or the sentence was in violation

of the Constitution of the United States or the Constitution or laws of this State;

. . . . may institute . . . a proceeding under this chapter to secure

relief.

§17-27-20(A)(1). 2 Under the plain language of this subsection, Brown may prosecute his action seeking PC R. He has been convicted of a c rime, and he claims

1 The PCR court found the PWID sentence "was satisfied in full n ot later than June 26, 2016."

2 The South Carolina Code contains a scrivener's error in the publication of subsection 17-27-20(A). In the text of Section 1 of the origin al 1969 Uniform PostConviction Relief Procedure Act—wh ich became section 17-27-20 i n the 1976 Code—subsection (A)(6) ends with t he language ". . . available under any commonhis conviction is invalid due t o violations of his constitution al rights to effective

counsel under the Sixth Amendmen t and due process under the Fou rteenth

Amendment. Under subsection 17- 27-20(A)(1), it is not necessar y that the PCR applicant demonstrate any collate ral consequences to his convic tion, even if he has completed serving his sentence.

In dismissing the application, the PCR court stated "this Court grants the State's motion for summary judgment becau se the applicant failed to dem onstrate any prejudicial effects resulting from the collateral consequences of his conviction," citing Jackson v. State , 331 S.C. 486, 489 S.E.2d 915 (1997). The petitioner in

Jackson had been convicted of possession of marijuana and given only a fine; he never went to jail. 331 S.C. at 488, 489 S.E.2d at 916. He la ter filed a PCR claim,

and the State moved to dismiss. Id. The PCR court dismissed the claim, finding "petitioner lacked standing to pursue his claim under [the Post -Conviction Procedure Act] because petitione r was not 'in custody' and never served a prison sentence for

his conviction." Id.

On appeal, we stated, "Until recently, our cases suggested a PC R applicant must meet the federal habeas corpus 'in custody' requirement in order to have standing." 331 S.C. at 489, 489 S.E.2d at 916. As an example of such a ca se, we cited Finklea

v. State , 273 S.C. 157, 255 S.E.2d 447 (1979). The defendant in Finklea was convicted in absentia for two speeding violations, as a result of which he accumulated more than twelve points on his driver's license, wh ich in turn required that his license be suspended. 273 S.C. at 157-58, 255 S.E.2d at 447. This Court

found his claims were "not within the purview of the Act," stat ing, "There is a clear

distinction between the termination of a driver's license arisi ng out of a series of traffic violations and the loss of liberty or imprisonment, or threat thereof, envisioned by the Post-Conviction Procedure Act." 273 S.C. at 158, 255 S.E.2d at

447. We then cited several habeas corpus cases to support our ruling, invoking what

the Jackson court later called the "in custody" requirement. 273 S.C. at 158-59, 255

S.E.2d at 447-48.

law, statutory or other writ, motion, petition, proceeding or r emedy;" followed by a line break, with the language "may institute . . . a proceeding under this chapter to secure relief" on the next line, in the body of subsection (A). See Act No. 164, 1969

S.C. Acts 158-59. The Code Commi ssioner made the error in the 1970 Code supplement, in which the Act was first published as part of our Code. See S.C. Code Ann. § 17-601 (Supp. 1970). Thus , the language "may institute . . . a proceeding" applies to all six subsections of subsection 17-27-20(A).It was this requirement we effectively overruled in Jackson , stating, "The Act does not contain an express 'in custody' requirement." 331 S.C. at 489, 489 S.E.2d at 916 (citing § 17-27-20(A)). The petitioner in Jackson , however, specifically "alleged he is prejudiced by persistent effe cts of his conviction." 331 S. C. at 488, 489 S.E.2d at

916. On the basis of that allega tion, we held the petitioner was entitled to a hearing, and reversed. 331 S.C. at 489-90, 489 S.E.2d at 916. It was n ot necessary in Jackson

for us to determine whether a PC R applicant can state a claim b ased solely on his conviction, with no allegation of any "persistent effects" or " collateral consequences."

In this case, however, the PCR court addressed the claim as one in which Brown did not allege he is suffering any pe rsistent effects or collateral consequences of his conviction. This case, therefore, presents the question we were not required to

address in Jackson . We now extend our holding in Jackson that the Act contains no "in custody" requirement, and we hold that in PCR cases brought under subsection 17-27-20(A)(1), the plain langua ge of the Act requires only wha t the subsection clearly states,

Any person who has been convi cted of, or sentenced for, a crime and who claims: (1) That the conviction or the

sentence was in violation of the Constitution of the United States or the Constitution or laws of this State . . . may institute . . . a proceeding under this chapter to secure

relief.

Accordingly, the circuit court' s decision to grant summary judg ment is

REVERSED . We REMAND the case to the PCR court for a hearing on the merits.

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