S.C. Supreme Court Looking More Closely at PCR Decisions

The South Carolina Supreme Court has recently been delving more deeply into review of PCR decisions.

In Kolle v. State, the Court conducted a review of Judge Breeden's decision to grant Kolle's PCR application.  The Court split 3-2 in favor of affirmance, including both a concurring and dissenting opinion.

Kolle's PCR hearing focused, perhaps predictably, on a Sixth Amendment ineffective assistance of counsel claim.  Essentially, Kolle's PCR arguments boiled down to whether his plea counsel adequately investigated certain discrepancies in police testimony and documentary evidence, whether plea counsel should have made a more detailed discovery request, and whether plea counsel properly advised Kolle to not accept a preliminary plea deal and instead plead guilty after an unsuccessful suppression hearing.

The relevant facts are as follows.  A North Myrtle Beach policeman responded to a complaint of excessively loud music coming from an apartment where Kolle had been staying.  The policeman knocked on the door of the apartment, but received no response.  He then observed what he described as "fresh damage" to the door of the apartment, which was slightly ajar.  The policeman continued to knock on the door and a window before calling for backup under the impression that there may have been an injured person inside the apartment.  Once backup arrived, the policemen entered the apartment and found a small amount of cocaine during a protective search of the apartment, during which they found no one inside.  The officers then left, obtained a search warrant, and returned to the apartment a short while later where they arrested Kolle and 2 women, and found 63 grams of cocaine.  A grand jury later indicted Kolle for trafficking between 28 and 100 grams of cocaine.

The majority opinion, authored by Justice Beatty, found that Kolle's plea counsel was ineffective in "failing to procure pertinent discovery materials, in particular the call/dispatch logs and the search warrant" used by the police to re-enter the apartment after their initial entry during which they found cocaine.  Apparently, according to the time logs, the search warrant was somehow issued 42 minutes before the loud music complaint was received by the officer.
  Kolle's plea counsel never requested any lab reports, search warrant affidavits, or chain of custody reports.  If he had, he would have discovered powerful information to be used at a suppression hearing.  At the hearing, plea counsel never questioned the police about the time discrepancies.

With respect to plea negotiations, before the suppression hearing the Solicitor offered Kolle a 10-year suspended sentence, where Kolle would have to serve 5 years in jail with 3 years of probation following.  Plea counsel advised Kolle that it wasn't a good deal, and nonetheless it would still be available to him after the suppression hearing.  In fact, the plea deal did not remain open after the failed suppression hearing, and Kolle ended up receiving a 7-year straight sentence.

The crux of Kolle's PCR argument relating to his guilty plea was that his plea was not knowing and voluntary, because he was operating under a severe lack of information about the time and other discrepancies which plea counsel should have discovered and attacked during the suppression hearing.  The police report never mentioned the "fresh damage" that supposedly gave rise to exigent circumstances allowing the policeman to enter the apartment in the first place, and conflicting reports alternately refer to the cocaine as both powder and crack.  Further, plea counsel's advice to not accept the plea deal was ineffectiveness, in that the offer was for Kolle to plead guilty to a lesser charge instead of facing a possible 25-year sentence for the trafficking charge for which he ultimately was sentenced.  The Court, relying on Strickland v. Washington, found that Kolle was certainly prejudiced by plea counsel's ineffectiveness.  Justices Waller and Pleicones concurred with the opinion, with Justice Pleicones concurring separately in the result and writing that the Court should have taken a much more narrow scope of review.

Justice Kittredge filed a dissenting opinion, joined by Chief Justice Toal, wherein he disagreed with the finding that Kolle's guilty plea was involuntarily made.  The dissent focused on Kolle's testimony during his allocution.  Kolle's colloquy with the judge indicated that he was well aware of his plea counsel's ineffectiveness but chose to plead guilty anyway.  The dissent characterizes the majority opinion as allowing a finding of involuntariness where the defendant has essentially perjured himself during his plea.  Justice Kittredge wrote that in his view, "a guilty plea is not rendered involuntary where, as here, a defendant knowingly testifies falsely at the guilty plea proceeding."