Kolle v. State

Justice KITTREDGE,

dissenting.

I respectfully dissent. I vote to reverse and reinstate the guilty plea and sentence.

The plea judge, the Honorable Steven H. John, conducted a thorough and textbook guilty plea. J. Lamar Kolle pled guilty freely and voluntarily, and acknowledged satisfaction with plea counsel.

THE COURT: Now, you are here with your attorney ... is that correct?
*594DEFENDANT KOLLE: Yes, sir.
THE COURT: Have you told him everything you need to tell him about this case?
DEFENDANT KOLLE: I believe so, sir.
THE COURT: All right, sir. Have you had enough time to talk to him?
DEFENDANT KOLLE: Yes, sir.
THE COURT: Do you need any more time to talk to him? DEFENDANT KOLLE: No, sir.
THE COURT: Has he done everything that you expected of him, that you wanted him to do to try to help you in this case?
DEFENDANT KOLLE: Yes, sir.
THE COURT: Are you satisfied with his representation? DEFENDANT KOLLE: Yes, sir.
THE COURT: Any complaints about his representations? DEFENDANT KOLLE: No, sir.

The guilty plea colloquy, including allocution, revealed the following facts. In the summer of 2003, Kolle and “ladies” traveled from Ohio to North Myrtle Beach, South Carolina. Kolle and his lady friends were befriended by Willis Holmes, who invited the group “to stay at his house and save on the hotel bill.”

The cocaine was found in Holmes’s residence. According to the plea allocution:

DEFENDANT KOLLE: I let Mr. Willis Holmes know what me and the ladies had in our possession, and he said that wouldn’t be an issue, but he would prefer that it stayed outside of the house.
It stayed outside of the house, in my vehicle, for the first three or four days, and then once Mr. Holmes started selling it and purchasing it, it came in the house, and he knew that because he had asked for some in the house, and received it in the house from me, and it stayed in the house from that time on. I demonstrated the machine to Mr. Holmes also, so he was well aware of what was going on.
THE COURT: All right, sir.
*595Solicitor, anything further that you would like to ask Mr. Kolle at this time?
SOLICITOR: Your Honor, I would ask that — in his allocution he indicated the “stuff.” What would that “stuff’ be?
THE COURT: Mr. Kolle.
DEFENDANT KOLLE: The cocaine—
THE COURT: All right.
DEFENDANT KOLLE: —And the tools.
THE COURT: And the paraphernalia that was seized by the police; is that correct?
DEFENDANT KOLLE: Yes sir.
THE COURT: All right, sir. And the weight that — of the cocaine that was seized, in your estimation, that was a correct amount as far as the weight at the time that it was seized, as best you could tell?
DEFENDANT KOLLE: I believe it is a little heavy, and if you review the documents there are several different amounts that the police have come up with, and that’s going to be due to moisture and sweating, so I would—
THE COURT: All right. But it’s no question in your mind it was certainly a good deal bit more than twenty-eight grams?
DEFENDANT KOLLE: Yes.
THE COURT: All right. Now, Mr. Kolle, just a second. I just have one or two other questions for you. Regarding the answers that you have given me here today, are they the truth?
DEFENDANT KOLLE: Yes.
THE COURT: And did anybody tell you, or give you the answers that you have given to the Court, or are they your answers?
DEFENDANT KOLLE: They are my answers.

Following the trial of Holmes, Kolle appeared for sentencing before Judge John. Kolle recited the reasons he believed he was a good candidate for probation:

DEFENDANT KOLLE: I just wanted to let the Court know that I was offered some pleas that were a lesser sentence than this, and it was not the fact that I was not *596trying to accept responsibility for the crime, but as informed by my attorney, he felt that it was an illegal search and seizure, so that’s why I took it to this point, and I feel like I kind of lost out a little bit because of that, and I just want to say that I do accept responsibility for what happened, but in the same light, these girls, they were of equal responsibility. They have known what’s gone on, and I think that is apparent by their own statement. They received a hundred day plea and some probation. I’m not — I feel that I should pay for my crime, but however, I have seven kids which, you know what I’m saying, are in dire need of my support, and I just request that the Court have mercy on me and grant me probation. I successfully have completed parole in Ohio when I — on my prior offense, with no problems, and I would not be a threat to society, and I feel that I’m a good candidate for probation.
THE COURT: I’m going to look at one thing first, before I impose a sentence in this matter.... [N]o probation is possible regarding this particular matter. The court does feel that the minimum sentence should be imposed in this offense that is allowable by law, and that would be the sentence of seven years. That is the sentence in this particular matter.

According to Kolle’s PCR testimony, when he pled guilty he was aware of plea counsel’s alleged deficient representation and repeatedly complained to counsel about it. For example, Kolle testified that he and counsel “actually debated about this beforehand”; Kolle “continued to argue with [counsel] and he continued to try not to do it” when counsel apparently failed to investigate the case as instructed by Kolle; and Kolle testified that “[counsel] didn’t investigate my case whatsoever or follow my instructions concerning the investigation of my case.”6

Kolle’s PCR testimony stands in stark contrast to his guilty plea testimony. Presumably, Kolle lied to the plea judge in stating he was satisfied with counsel and had no complaints. It is my view that a guilty plea is not rendered involuntary where, as here, a defendant knowingly testifies falsely at the *597guilty plea proceeding.7 I would not grant a PCR applicant relief under such circumstances. I find no evidence to support the PCR court’s decision and would reverse the grant of PCR.

TOAL, C.J., concurs.

. Moreover, Kolle fancies himself as a legal expert, as reflected in his lecture-like testimony to the PCR court on the laws of search and seizure and Brady.

. The majority opinion states that I “appear[j to contend that a defendant may never raise a claim of ineffective assistance of counsel following the entry of a guilty plea if he expressed satisfaction with his attorney during the plea colloquy.” I contend no such thing. I contend that a defendant should not be permitted to successfully collaterally challenge a guilty plea on the basis of an involuntary plea tied to a claim of deficient representation where: (1) the alleged deficient representation was known to the defendant at the time of the guilty plea; and (2) the defendant knowingly testified falsely at the plea proceeding concerning plea counsel's representation.