Mack v. State of SC

M
                     THE STATE OF SOUTH CAROLINA
                          In The Supreme Court

             John Willie Mack, Sr., Petitioner,

             v.

             State of South Carolina, Respondent.

             Appellate Case No. 2020-000329



       ON WRIT OF CERTIORARI TO THE COURT OF APPEALS



                         Appeal From Spartanburg County
                        Robin B. Stilwell, PCR Court Judge


                              Opinion No. 28025
                    Heard March 3, 2021 – Filed April 28, 2021


                        REVERSED AND REMANDED


             Appellate Defender Jessica M. Saxon, of Columbia, for
             Petitioner.

             Attorney General Alan McCrory Wilson and Assistant
             Attorney General Chelsey Faith Marto, both of Columbia,
             for Respondent.


       CHIEF JUSTICE BEATTY: We granted John Willie Mack, Sr.'s petition
for a writ of certiorari to review Mack v. State, Op. No. 2019-UP-386 (S.C. Ct. App.
filed Dec. 18, 2019), in which the court of appeals affirmed the PCR court's dismissal
of Mack's second application for post-conviction relief ("PCR") alleging his DNA
counsel failed to timely appeal the denial of his application for DNA testing under
the Access to Justice Post-Conviction DNA Testing Act ("DNA Act"), S.C. Code
Ann. §§ 17-28-10 to -120 (2014). Because Mack was prevented from seeking
appellate review, we find it is necessary to provide an avenue of relief akin to Austin
v. State, 

305 S.C. 453

, 

409 S.E.2d 395

(1991) that affords him the opportunity to
obtain belated review. Accordingly, we reverse and remand to the court of general
sessions for an evidentiary hearing consistent with this opinion.

                                     I. FACTS
       On September 6, 2005, LaRhonda Moss ("Victim") returned to her home in
Spartanburg after spending the Labor Day weekend out of town and discovered
someone had broken into the house through her bedroom window. She noticed her
television, laptop computer, CD changer, and certain items of jewelry were missing
and other personal items were strewn throughout the home. Notably, blood was
found on her entertainment center in the living room, on a bookshelf in the hallway,
and on the wall near a light switch in the bedroom. Law enforcement swabbed the
blood and sent the evidence to the State Law Enforcement Division ("SLED") for
DNA testing. The physical items containing the blood were not collected or
preserved. Photographs showing the location of the blood evidence were taken at
the crime scene, but they were subsequently lost and not available at trial.
Thereafter, law enforcement discovered the blood samples from Victim's home
matched Mack's DNA in the Combined DNA Index System ("CODIS"), and he was
indicted for first-degree burglary and grand larceny. Three years later, the State
moved to compel Mack to submit to a buccal swab test to confirm the DNA match,
and the circuit court granted the request. The DNA evidence found in the blood
samples was the only evidence presented at trial linking Mack to the charged crimes.
The case proceeded to a jury trial in February 2011, and Mack was convicted and
sentenced to life imprisonment without the possibility of parole for first-degree
burglary and a concurrent term of five years' imprisonment for grand larceny. Mack
appealed his convictions and sentences, and the court of appeals affirmed in State v.
Mack, Op. No. 2013-UP-161 (S.C. Ct. App. filed April 17, 2013).

       In September 2012, while his appeal was still pending, Mack filed a pro se
application for forensic DNA testing pursuant to the DNA Act. In May 2013, while
his application for DNA testing was pending, Mack filed his first application for
post-conviction relief under the Uniform Post-Conviction Procedure Act ("PCR
Act"), S.C. Code Ann. §§ 17-27-10 to -160 (2014), alleging ineffective assistance of
trial counsel. At the start of his PCR hearing in January 2015, he moved for a
continuance in order to first obtain a ruling on his 2012 pro se application for DNA
testing under the DNA Act. The PCR court denied the continuance on the ground
that his ineffective assistance of trial counsel claim was not related to his request for
new DNA testing, and any decision as to his PCR application would have no bearing
on his request for relief under the DNA Act. In April 2015, the PCR court denied
his PCR application, and Mack filed a Johnson1 petition for a writ of certiorari to
review the decision. Following an order from this Court requesting Mack to file
another petition addressing a specific question, we denied the petition in February
2018.

        In October 2014, a hearing was held on Mack's pro se application for post-
conviction DNA testing during which he requested testing of the physical items
where his blood was allegedly found rather than a retesting of the swabs collected in
2005. On May 18, 2015, the court issued an order denying his request, finding (1)
testimony at trial established the blood samples taken at the crime scene were tested
and matched Mack in a 1 in 1.3 quadrillion probability; (2) he did not raise the issue
at trial of producing the actual items from which the blood samples were taken; and
(3) the items he sought to test were previously subjected to DNA testing and further
testing would not provide a more probative result. Mack received written notice of
entry of the order on May 20, 2015, and his DNA counsel served a notice of appeal
on the State on June 3, 2015. The court of appeals dismissed the appeal as untimely
under Rule 247(b), SCACR. Mack v. State, S.C. Ct. App. Order dated July 16, 2015.

       In September 2015, Mack filed a second PCR application alleging DNA
counsel was ineffective for failing to timely appeal the denial of his application for
post-conviction DNA testing. The State filed a return and moved to dismiss his
application. Two years later, the PCR court held a hearing on Mack's second PCR
application and dismissed with prejudice his request for relief. Specifically, the PCR
court held his second PCR application failed to state a cognizable claim for relief,
was barred by the statute of limitations, and was successive to his previous
application under the PCR Act. The court also determined his claim was prohibited
by section 17-28-60 of the DNA Act. Mack appealed the PCR court's order, and the
court of appeals affirmed the dismissal of his second PCR application. Mack v. State,
Op. No. 2019-UP-386 (S.C. Ct. App. filed Dec. 18, 2019). Following the denial of
his petition for rehearing, Mack filed a petition for a writ of certiorari to review the
court of appeals' decision, which this Court granted.

                           II. STANDARD OF REVIEW
       "In a PCR case, this Court will uphold the PCR court's factual findings if there
is any evidence of probative value in the record to support them." Thompson v. State,

1
N.M. (J.) v

. State, 

294 S.C. 310

, 

364 S.E.2d 201

(1988).

423 S.C. 235

, 239, 

814 S.E.2d 487

, 489 (2018) (citing Sellner v. State, 

416 S.C. 606

,
610, 

787 S.E.2d 525

, 527 (2016)). "However, this Court gives no deference to the
PCR court's conclusions of law, and we review those conclusions de novo."

Id.
(citing Jamison v.

State, 

410 S.C. 456

, 465, 

765 S.E.2d 123

, 127 (2014)).

                                 III. DISCUSSION

       Mack contends the court of appeals erred in affirming the PCR court's
dismissal of his second PCR application alleging DNA counsel was ineffective for
failing to timely appeal the denial of his application for post-conviction DNA testing.
Specifically, he claims that filing a second PCR application was his only avenue to
seek appellate review and to obtain his "one fair bite at the apple" due to DNA
counsel's deficient conduct. See Odom v. State, 

337 S.C. 256

, 261–62, 

523 S.E.2d
753

, 755–56 (1999) (stating "an applicant is entitled to a full adjudication on the
merits of the original petition, or 'one bite at the apple'" and noting Austin "never
received a full procedural 'bite at the apple' because he was prevented from seeking
any review of the denial of his PCR application"). Consequently, Mack requests this
Court to extend our decision in Austin v. State, 

305 S.C. 453

, 

409 S.E.2d 395

(1991)
to the DNA Act and grant him belated review of the denial of his request for post-
conviction DNA testing.

       In Austin, the petitioner's original PCR application was denied, and counsel
failed to seek appellate review.

Id. at 454, 409

S.E.2d at 396. Subsequently, the
petitioner filed a second PCR application alleging his counsel was ineffective for
failing to seek appellate review of the PCR court's order.

Id. We noted that,

under
the PCR Act, "[t]he right to seek appellate review of the denial of PCR is expressly
authorized by state law."

Id. (citing S.C. Code

Ann. § 17-27-100 (2014)). Based on
our extension of Anders v. California, 

386 U.S. 738

(1967) to PCR matters in
Johnson v. State, 

294 S.C. 310

, 

364 S.E.2d 201

(1988), which acts "as a safeguard
of the right to appeal," we recognized the petitioner was entitled to the assistance of
appellate counsel in seeking review of the denial of PCR.

Id. We further found

the
petitioner's allegation that counsel failed to seek appellate review sufficiently stated
a claim of ineffective assistance.

Id. Therefore, we crafted

a remedy to correct the
unfairness that had occurred by providing relief through a belated appeal. Id.; see
Ferguson v. State, 

382 S.C. 615

, 619, 

677 S.E.2d 600

, 602 (2009) (noting Austin
appeals are "belated appeals intended to correct unjust procedural defects").

      Mack argues this case is on all fours with Austin because he was prevented
from seeking appellate review due to counsel's failure to timely serve the notice of
appeal. Similar to Austin, which was based on the statutory right to appellate review
under the PCR Act, the right to appellate review of an order granting or denying
post-conviction DNA testing under the DNA Act is also expressly authorized by
statute. S.C. Code Ann. § 17-28-90(G) (2014) ("The applicant and the solicitor or
Attorney General, as applicable, shall have the right to appeal a final order denying
or granting DNA testing by a writ of certiorari to the Court of Appeals or the
Supreme Court as provided by the South Carolina Appellate Court Rules."). As a
result, Mack claims the only way to correct the unfairness in this case is to craft a
remedy similar to the one created in Austin to allow him to obtain belated review.

       It is undisputed that Mack's DNA counsel failed to timely serve the notice of
appeal. See Rule 247(b), SCACR ("The notice of appeal shall be served on all
respondents within ten (10) days after receipt of written notice of entry of the final
order."); Mack v. State, S.C. Ct. App. Order dated July 16, 2015 (dismissing Mack's
appeal for failure to timely serve the notice of appeal under Rule 247(b), SCACR).
We therefore understand why Mack filed a second PCR application in this instance
because there is no existing procedural mechanism that allows him to seek the
appellate review to which he is statutorily entitled. As we held in Austin, we find
Anders similarly applies to the DNA Act to safeguard an applicant's statutory right
to seek appellate review and entitles him to the assistance of appellate counsel.2 See

Odom, 337 S.C. at 261

, 523 S.E.2d at 755–56 (noting a full adjudication on the
merits or "one bite at the apple" includes both the right to appeal and the right to the
assistance of counsel in that appeal); Austin, 305 S.C. at 

454, 409 S.E.2d at 396

(recognizing Anders applies in PCR matters and entitles a petitioner to the assistance
of appellate counsel); see also State v. Velasquez-Cardenas, 

815 S.E.2d 9

, 17–18
(N.C. Ct. App. 2018) (holding Anders procedures apply to an appeal of the denial of
a motion for post-conviction DNA testing and stating there is "no valid reason to
deny Anders-type protections to defendants in criminal proceedings from which
there is a statutory right of appeal"). Because Mack was unjustly prevented from
seeking appellate review and deprived of his full "bite at the apple," we must provide
an avenue of relief akin to Austin that affords him the opportunity to obtain belated
review.

       We hold that an applicant for post-conviction DNA testing may file a petition
for belated review when he is prevented from seeking appellate review, such as when

2
  Similar to the PCR rules, the DNA Act requires that counsel be appointed for an
indigent DNA testing applicant. See Rule 71.1(d), SCRCP (requiring the court to
appoint counsel to assist a PCR applicant if he is indigent); S.C. Code Ann. § 17-28-
60 (2014) (requiring the court to appoint counsel for an indigent DNA testing
applicant and noting that counsel appointed in an ongoing PCR proceeding must also
serve as DNA counsel).
counsel fails to seek timely review. Cf. 

Odom, 337 S.C. at 261

, 523 S.E.2d at 756
("An Austin appeal is used when an applicant is prevented from seeking appellate
review of a denial of his or her PCR application, such as when an attorney fails to
seek timely review."). Because an application for post-conviction DNA testing
under the DNA Act must be filed with the clerk of court of the court in which the
conviction or adjudication took place, the petition for belated review must also be
filed in that court and request an evidentiary hearing. See S.C. Code Ann. § 17-28-
40(B) (2014) ("The application [for DNA testing] must be verified by the applicant
and filed under the original indictment number or petition with the clerk of court of
the general sessions court or family court in which the conviction or adjudication
took place."). The petitioner will be entitled to belated review if the circuit court
judge3 affirmatively finds either: (1) the petitioner requested and was denied an
opportunity to seek appellate review; or (2) the right to appellate review was not
knowingly and intelligently waived. Cf. 

Odom, 337 S.C. at 262

, 523 S.E.2d at 756
(outlining the standard the PCR judge must apply in determining whether a PCR
applicant is entitled to an Austin appeal).

       If the circuit court finds the petitioner is entitled to belated review, the
petitioner shall serve and file a petition for a writ of certiorari under Rule 247,
SCACR.4 The first question in the petition shall address whether the circuit court
properly found the petitioner is entitled to belated review. In addition, the petition
shall raise and address the questions the petitioner seeks to have reviewed regarding
the decision on the application for post-conviction DNA testing.

       If the circuit court finds the petitioner is not entitled to belated review, the
petition for a writ of certiorari shall address only the question of whether the circuit
court erred in finding the petitioner is not entitled to belated review. However, the
petition shall also include a statement of the questions the petitioner would raise



3
  In cases where the conviction or adjudication took place in the family court, the
family court judge shall hold the requested evidentiary hearing and make a finding
as to whether the petitioner is entitled to belated review.
4
 See S.C. Code Ann. § 17-28-90(G) (2014) (granting applicants for post-conviction
DNA testing the right to appeal by a writ of certiorari to the court of appeals or this
Court as provided by the South Carolina Appellate Court Rules); Rule 247(a),
SCACR (providing an order denying or granting DNA testing under the DNA Act
shall be reviewed upon petition for a writ of certiorari).
regarding the decision on the application for post-conviction DNA testing if belated
review is granted.

       Regardless of the finding of the circuit court, the Appendix under Rule 247(e),
SCACR, shall contain the entire record before the lower court, including the
transcript of any hearing held and the orders issued by the court as to both the
application for post-conviction DNA testing and the petition seeking belated review,
along with an index.5

       Unlike the Austin review procedure, the petitioner will not be required to
establish prejudice under the standard outlined in Strickland v. Washington, 

466 U.S.
668

(1984). See United States v. Peak, 

992 F.2d 39

, 42 (4th Cir. 1993) (noting
"Strickland is concerned with attorney performance in the course of representation"
and "does not apply to deprivations of counsel altogether," which occurs when
counsel fails to file a notice of appeal); see also Roe v. Flores-Ortega, 

528 U.S. 470

,
486 (2000) ("[I]t is unfair to require an indigent, perhaps pro se, defendant to
demonstrate that his hypothetical appeal might have had merit before any advocate
has ever reviewed the record in his case in search of potentially meritorious grounds
for appeal."). Instead, prejudice will be presumed. See 

Roe, 528 U.S. at 483

(holding
prejudice will be presumed where "counsel's deficient performance deprived him of
a notice of appeal, and hence, an appeal altogether"); Rodriquez v. United States,

395 U.S. 327

, 330 (1969) ("Those whose right to appeal has been frustrated should
be treated exactly like any other appellants; they should not be given an additional
hurdle to clear just because their rights were violated at some earlier stage in the
proceedings."); see also Frasier v. State, 

306 S.C. 158

, 161, 

410 S.E.2d 572

, 574
(1991) (reviewing the denial of PCR and holding "counsel was ineffective in failing
to perfect petitioner's appeal, and that petitioner was prejudiced thereby because but
for counsel's deficient performance, petitioner would have taken a direct appeal").

       Here, we find Mack's allegation that his DNA counsel failed to timely serve
the notice of appeal from the order denying his application for post-conviction DNA
testing permits him to seek belated review in accordance with this opinion.
Therefore, we remand the case to the court of general sessions for an evidentiary
hearing on the issue of whether he requested and was denied an opportunity to seek
appellate review or the right to appellate review was not knowingly and intelligently
waived. See Wilson v. State, 

348 S.C. 215

, 218–19, 

559 S.E.2d 581

, 583 (2002)
(remanding for an evidentiary hearing to determine whether the petitioner knowingly


5
 This procedural guidance is based on that specified by King v. State, 

308 S.C. 348

,

417 S.E.2d 868

(1992), for cases involving belated review under Austin.
and intelligently waived his right to appeal); 

Austin, 305 S.C. at 454

–55, 409 S.E.2d
at 396 (remanding for an evidentiary hearing to determine whether the petitioner
requested and was denied an opportunity to seek appellate review). If the circuit
court finds Mack is entitled to belated review, he may file a petition for a writ of
certiorari under Rule 247, SCACR.

                               IV. CONCLUSION
      Because Mack was prevented from seeking appellate review, we find it is
necessary to provide an avenue of relief akin to Austin v. State, 

305 S.C. 453

, 

409
S.E.2d 395

(1991) that affords him the opportunity to obtain belated review.
Accordingly, we reverse and remand to the court of general sessions for an
evidentiary hearing consistent with this opinion.

      REVERSED AND REMANDED.

      KITTREDGE, HEARN, FEW and JAMES, JJ., concur.

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