Post-Conviction Relief – PCR Lawyer in Charleston, SC
For many people, a conviction at trial or even a guilty plea is not the end of their fight.
There are two primary ways to challenge a criminal conviction in SC – a direct appeal to the SC Court of Appeals or a “collateral attack” on the conviction through a post-conviction relief (PCR) action.
In most cases, a direct appeal is filed first because ineffective assistance of appellate counsel is also a potential ground for reversal – but – all claims must be included in the PCR application. If the direct appeal fails, you still have the option of filing a PCR action and including PCR claims related to the appeal.
What is a PCR Action in SC?
For the most part, PCR has replaced the writ of habeas corpus under SC law, although habeas is still used in some situations.
Post-conviction relief can be based on ineffective assistance of counsel, constitutional violations, or prosecutorial misconduct, but most claims are framed in terms of ineffective assistance of counsel.
Whereas a direct appeal asks the Court of Appeals to reverse a conviction based on errors of law made by the judge at trial or during the plea hearing, PCR is a separate lawsuit filed in civil court that challenges the conviction based on mistakes made by your attorney at any critical stage of the proceedings.
At a PCR hearing in SC, you must prove: 1) ineffective assistance of counsel, and 2) that the ineffective assistance prejudiced your case (there is a substantial likelihood that it affected the outcome).
Can I Get an Appointed PCR Lawyer?
If you file a PCR application on your own, the court will most likely appoint a PCR lawyer to represent you. The appointments are either: 1) random selections from the civil appointment list; or 2) given to a “contract” PCR lawyer who handles many PCR appointments for a flat fee.
You may get an incredible attorney as your appointed PCR lawyer, but there are a few things that you need to know:
- PCR appointments are made from the civil appointment list, not the criminal appointment list – your appointed PCR attorney is not a public defender and is more likely to be an attorney who is more familiar with civil law than criminal defense; and
- Your appointed PCR lawyer is paid a flat fee by the state for each case they handle – their fee is typically enough to cover the attorney’s time for reading your file and showing up in court on the day of your PCR hearing… your PCR lawyer should investigate your case, interview witnesses, visit you in prison, and submit supplemental PCR applications to the court, but the state is probably not paying them to do it…
What Should I Expect from My PCR Lawyer in SC?
It is not enough to take a PCR application that was drafted by an inmate, show up on the hearing date, and argue the points that the inmate raised.
Depending on the facts of your case and when appropriate, your Charleston PCR attorney should:
- Visit you if you are in prison;
- Meet with you at their office if you are not in prison;
- Investigate your claims;
- Interview witnesses;
- Interview jurors;
- Review all transcripts from trial or plea hearings;
- Get a copy of your file from your trial or plea attorney;
- Interview all prior attorneys;
- Review all evidence;
- Evaluate whether expert witnesses should have been consulted in your case; and
- Draft and file a supplemental PCR application containing any new claims that the attorney discovers during their investigation.
PCR is not something that can be done effectively “on a budget.” You will need to cover not only the attorney’s fees, but, depending on the facts of your case, you may also need to cover the costs of a private investigator and one or more expert witnesses.
Can I Appeal a PCR in SC?
You can appeal a denial of PCR. Unlike in a criminal case, however, the state can also appeal if you win your PCR hearing.
This means that many PCR cases are ultimately decided in the SC Supreme Court – whichever side loses at the PCR hearing in the circuit court may file an appeal. This also means that, win or lose, it is critical that your PCR attorney makes a complete record of your claims at the PCR hearing. They will need to:
- Raise and preserve all issues that have merit;
- File a Rule 59(e) motion to alter or amend the judgment if the PCR court does not issue a ruling on all claims that you raised;
- Subpoena and present testimony from any lay witnesses; and
- Subpoena and present testimony from any expert witnesses.
PCR appeals in SC go directly to the SC Supreme Court instead of the Court of Appeals, although the Supreme Court will sometimes refer PCR cases to the Court of Appeals to assist with the Supreme Court’s workload.
SC PCR Attorney in Charleston
After a criminal conviction and failed direct appeal in SC, PCR may be a defendant’s last chance to reverse their conviction and get a new trial.
If you or your family member was convicted of a crime in SC following a trial or a guilty plea, and you believe there are grounds for PCR, call Charleston SC PCR lawyer Grant B. Smaldone now at (843) 808-2100 or fill out our online contact form to schedule a free consultation.