Washington v. State

BURNETT, Justice:

I respectfully dissent. Respondent’s application for post-conviction relief (PCR) is successive.

In 1991, respondent filed a PCR application. In April 1992, after a hearing, the PCR judge issued an order finding, inter alia, the State had failed to adequately explain a plea agreement with one of its witnesses at respondent’s trial and, further, respondent had not knowingly and voluntarily waived his right to a direct appeal. The PCR judge concluded, however, that the State’s misconduct did not warrant reversal by the PCR court, but could be addressed on direct appeal. Respondent did not file a Rule 59(e), SCRCP, motion to alter or amend the 1992 order.

On respondent’s petition for a writ of certiorari, this Court affirmed the denial of PCR, granted respondent a belated review on the issue of the State’s misconduct, and affirmed due to respondent’s failure to preserve the issue for appellate review at trial. Washington v. State, Op. No. 93-MO-151 (S.C.Sup.Ct. filed June 11,1993).

In July 1993, respondent filed a second PCR application challenging the PCR judge’s finding that the State’s failure to adequately explain the plea agreement could be raised on *238direct appeal. In addition, respondent alleged ineffective assistance of PCR counsel.

In 1994, prior to the hearing on his second PCR application, respondent motioned the PCR judge to correct “clerical errors” in his April 1992 order.1 He asserted the PCR judge’s 1992 order did not conform to his oral ruling at the PCR hearing. The PCR judge granted respondent’s motion and issued an order amending his prior PCR order. In this amended order, the PCR judge stated that since the Supreme Court “refused to hear this matter [regarding the plea agreement] on direct [appeal],” respondent was entitled to a new trial. It is from this order that the State sought and was granted a writ of certiorari.

Respondent’s second PCR application is successive. See S.C.Code Ann. § 17-27-90 (1976) (“[a]ny ground finally adjudicated ... in any other proceeding the applicant has taken to secure relief, may not be the basis for a subsequent application____”). Successive PCR applications are not favored, and the applicant has the burden of proving that the grounds raised in a successive application could not have been raised in a previous application. Aice v. State, 305 S.C. 448, 409 S.E.2d 392 (1991). Successive applications have been permitted in cases involving unique factual circumstances. Cf. Carter v. State, 293 S.C. 528, 362 S.E.2d 20 (1987) (a successive application raising the issue of ineffective assistance of trial counsel was permitted where trial counsel had represented the applicant in the first PCR matter); Case v. State, 277 S.C. 474, 289 S.E.2d 413 (1982) (where applicant’s first PCR application was filed without benefit of counsel and was dismissed without a hearing, his second application warranted a hearing despite its successiveness). The facts of the matter sub judice do not warrant review of respondent’s successive PCR application. I would reverse.

. Both of respondent’s PCR applications were heard by the same PCR judge.