Pantovich v. State

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA In The Supreme Court

Vladimir W. Pantovich, Petitioner,

v.

State of South Carolina, Respondent.

Appellate Case No. 2014-001433

Appeal From Georgetown County The Honorable George C. James, Jr., Circuit Court Judge

Memorandum Opinion No. 2015-MO-052 Submitted August 19, 2015 – Filed August 26, 2015

REVERSED AND REMANDED

Appellate Defender Laura Ruth Baer, of Columbia, for Petitioner.

Attorney General Alan Wilson and Assistant Attorney General Joshua L. Thomas, of Columbia, for Respondent.

PER CURIAM: Petitioner seeks a writ of certiorari from the denial of his application for post-conviction relief (PCR). We grant the petition, dispense with further briefing, reverse the order of the PCR judge, and remand the matter for a decision in accordance with this opinion.

Petitioner alleged appellate counsel was ineffective in filing an Anders1 brief that did not raise the issue of whether the trial judge erred in refusing petitioner's request to charge the jury on his good character. In deciding appellate counsel was not ineffective, the PCR judge found petitioner was not prejudiced "because the Court of Appeals' dismissal [of the appeal] indicates it found no reversible error in the trial judge's instructions." The judge found that, in order to show prejudice, petitioner had to show "an irregularity in the Court of Appeals' Anders procedure." The PCR judge specifically found there was not overwhelming evidence of petitioner's guilt. Instead, his decision was based solely on his finding that petitioner failed "to rebut the presumption of regularity in the Court of Appeals' Anders review."

In order to show prejudice from appellate counsel's performance when an Anders brief is filed, the test enunciated in Strickland v. Washington, 466 U.S. 668 (1984), should be applied. Smith v. Robbins, 528 U.S. 259 (2000) (even if appellate counsel believes an appeal is without merit and files an Anders brief, the appellant may have been entitled to a merits brief, and the challenge to appellate counsel's performance should be reviewed under Strickland); Bennett v. State, 383 S.C. 303, 680 S.E.2d 273 (2009) (even where an Anders brief is filed, when analyzing a claim of ineffective assistance of appellate counsel, this Court applies the Strickland test). Strickland holds a PCR applicant must show there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. To prove appellate counsel was ineffective, the applicant must show appellate counsel's performance was deficient and, but for appellate counsel's errors, the result of the appeal would have been different. Ezell v. State, 345 S.C. 312, 548 S.E.2d 852 (2001).

The PCR judge erred in finding there was a rebuttable presumption that the Court of Appeals reviewed every potential appellate issue and determined them to be without merit when conducting an Anders review and that there is a requirement that a PCR applicant show there was an irregularity in the Court of Appeals' Anders review. Accordingly, we reverse the order of the PCR judge and remand the matter for consideration of petitioner's allegation of ineffective assistance of appellate counsel under the proper standard.

REVERSED AND REMANDED.

TOAL, C.J., PLEICONES, BEATTY, KITTREDGE and HEARN, JJ., concur. 1 Anders v. California, 386 U.S. 738 (1967).