Post Conviction Relief (PCR) and Criminal Appeals

Following a guilty plea or conviction at trial in South Carolina, there are two primary methods to challenge the conviction: 1) Filing a “direct” appeal to the appellate courts; or 2) Filing a post-conviction relief (PCR) action in the Court of Common Pleas.

After a conviction at trial, it is usually best to file the direct appeal first – then, if the direct appeal fails, you can file the PCR action. On the other hand, there are some cases – including most guilty pleas – where it is clear that a direct appeal will not succeed and it makes sense to proceed directly to the PCR action.

When should you file an appeal, when should you file a PCR, and what remedies are available?

When Should I File an Appeal After a Criminal Conviction in SC?

In most cases, a direct appeal will go to the SC Court of Appeals. Either party can then request that the SC Supreme Court review the Court of Appeals’ decision.

A direct appeal must be based on a mistake of law that the judge made during your trial or guilty plea. For example, if your attorney filed a motion to suppress drugs based on an invalid search warrant, and the judge denied the motion but was wrong, the Court of Appeals may reverse the conviction based on the judge’s mistake of law.

Some other common grounds for a direct appeal include:

• Denial of suppression motions;
• Improper witness testimony;
• Not allowing proper witness testimony;
• Allowing inadmissible evidence at trial;
• Excluding otherwise admissible evidence;
• Improper jury instructions or denial of a proper jury instruction; or
• Ruling incorrectly on objections during trial.

The record is only “preserved for appeal” if your attorney makes the objection, motion, or argument. If your attorney was silent, the record is not preserved, and your only remedy may be PCR based on ineffective assistance of counsel.

When Can I File a Post-Conviction Relief (PCR) Action in SC?

Post-conviction relief, or PCR, is usually the last avenue available to a person to challenge their conviction in state court.

Inmates seeking PCR often file the petition themselves and then are appointed counsel to represent them. Unfortunately, PCR cases are appointed to lawyers on the civil appointment list, who may or may not be familiar with criminal law or trial procedure.

The most common claim in PCR is ineffective assistance of counsel. Whereas a direct appeal is based on mistakes of law made by the judge, PCR is usually based on mistakes made by the attorney – if the attorney did not make the motion, objection, or argument, the judge had no reason to rule on it, and, in a direct appeal, the appellate courts have no record on which to make a decision.

To prove ineffective assistance, the PCR attorney must show:

1. The trial attorney failed to render reasonable effective assistance under prevailing norms; and
2. Prejudice resulted from the trial lawyer’s ineffective performance (it may have changed the outcome).

Examples include the trial attorney failing to object to inadmissible evidence, improper jury instructions, or outrageous arguments by the prosecution. PCR can also be based on the trial attorney’s failure to independently investigate the case or call essential witnesses.

PCR claims can also be based on lack of subject matter jurisdiction, an illegal or expired sentence, or after-discovered evidence. A PCR claim can also be made based on prosecutorial misconduct, such as when the prosecutor or law enforcement withholds evidence that would have helped to prove your innocence.

In some cases, the potential grounds for PCR are not clear from the transcripts or discovery materials and can be found only through an independent investigation – if the original defense lawyer did not conduct a thorough independent investigation prior to the plea or trial, there may be information, witnesses, or evidence that can be uncovered and that may be grounds for post-conviction relief.

What Is the Deadline for Filing an Appeal or a PCR in SC?

Your notice of appeal following a guilty plea or criminal trial must be filed within 10 days after the conviction (or the court’s decision on post-trial motions). Ordinarily, your trial lawyer will file the notice of appeal on your behalf, but you may need to tell them clearly that is what you want.

For PCR actions, there is a statute of limitations of one year from the date of conviction or from the entry of the appellate court’s decision, so it is important to contact a PCR lawyer immediately if you believe you may have a PCR claim following your conviction.

SC Criminal Appeals and PCR Lawyer in Columbia, Lexington, and Myrtle Beach

Lacey Thompson limits her practice to criminal defense cases only, including criminal appeals and PCR actions.

If you or a loved one was convicted and needs help filing their appeal or PCR, call the Thompson & Hiller Defense Firm now at (843) 444-6122 or contact us online to find out if we can help.