PCR, Prejudice, and an Armored Car Heist
In Frierson v. State, the SC Supreme Court affirmed the denial of post-conviction relief (PCR) this month in an armored car heist case.
Frierson, who was an employee of the armored car company and one of the drivers that were allegedly robbed, made off with $9.8 million along with his co-defendants. Faced with evidence that included incriminating statements by his co-defendants, a glove found in his trash that matched a glove from the crime scene, a failed polygraph, cash at his house, and, eventually, his own confession, he ultimately pled guilty.
He was convicted of assault and battery of a high and aggravated nature, criminal conspiracy, kidnapping, and armed robbery, and sentenced to 35 years in prison.
The Supreme Court held that, although his criminal defense lawyer did not know and did not advise him that he might be able to challenge some of the evidence because police violated a SC law by placing a tracking device on his vehicle without a warrant, there was no prejudice to his case and therefore he is not entitled to PCR.
Police Cannot Put a Tracking Device on Your Car Without a Warrant
In United States v. Jones, 565 U.S. 400 (2012), the US Supreme Court held that putting a tracking device on a person’s vehicle is “a trespass on private property and therefore a search under the Fourth Amendment.”
Police can do it, but only if they first get a warrant from a judge based on probable cause.
Frierson, however, pled guilty before the Jones decision, and, at the time, it was a bit of a grey area in Fourth Amendment jurisprudence.
But, South Carolina Code Section 17-30-140 was in place at the time and required “application to a judge of competent jurisdiction for an order authorizing or approving the installation and use of a mobile tracking device by the South Carolina Law Enforcement Division or any law enforcement entity of a political subdivision of this State.”
There was no application for an order authorizing the use of the tracking device, and, therefore, the tracking device was illegal. His attorney did not tell him about this SC law, which was ineffective assistance of counsel – the question left is whether it affected the outcome (to win PCR, you must prove 1) ineffective assistance of counsel and 2) prejudice).
What is Prejudice in the Context of a Guilty Plea?
Following a trial, the Court will engage in an “overwhelming evidence analysis” to decide whether the “prejudice prong” of Strickland has been met – if there is overwhelming evidence apart from the subject of PCR that would most likely have resulted in a conviction, the conviction may be affirmed even though counsel was ineffective.
Following a guilty plea, the prejudice inquiry is different – it is extremely limited, and it is error for the court to engage in an overwhelming evidence analysis. After a guilty plea, PCR is proven by:
- Ineffective assistance of counsel; and
- Prejudice, which is defined as “a reasonable probability that, but for counsel’s errors, he would not have pled guilty and would have insisted on going to trial.”
The Supreme Court acknowledged that Frierson testified at the PCR hearing that, but for his attorney’s mistake, he would not have pled guilty and he would have insisted on going to trial.
Without explaining how they reached their conclusion, the Supreme Court affirmed the lower courts’ findings that Frierson would have pled guilty anyway… how can they possibly say what Frierson would have done, or deny that he would have gone to trial?
I think the Court got it wrong in this case. Although it looks like it is likely Frierson would be convicted at trial, based on the Supreme Court’s recitation of the evidence, the requirements of ineffective assistance and prejudice in the context of a guilty plea were met and PCR should have been granted.
Criminal Defense and Post-Conviction Relief (PCR) Lawyer in Charleston, SC
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