You went to court, you pled guilty, and you were sentenced to prison… is there any way to undo the conviction now?
Post-Conviction Relief in SC is available after any conviction whether it was a plea or trial, if the PCR is filed within the one-year statute of limitations and if there are grounds for PCR – “I don’t like the sentence that I got” is never grounds for PCR, but there are many other situations where a conviction can be reversed based on ineffective assistance of counsel.
What is PCR in SC?
Following a criminal conviction, whether it is a trial or a guilty plea, you have a strict deadline of 10 days to file a notice of direct appeal. This appeal only applies to mistakes of law that the judge made during your trial or plea hearing.
PCR is a separate proceeding that is designed to correct mistakes that your attorney made during the plea, trial, or investigation of your case. In most PCR cases, you must prove:
1) Ineffective assistance of counsel – your attorney’s advice or performance was not reasonable; and
2) Prejudice – the mistakes that your attorney made were likely to change the outcome of the case.
PCR Following a Guilty Plea
Although it may be more difficult to prove, PCR can be granted after a guilty plea. You will have to prove that you received bad advice and, but for the bad advice that you received, you would have proceeded to trial in your case.
If you win the PCR, your case is not dismissed – in most cases, what you win is the opportunity to go to trial in your case. Any benefit that you received from the guilty plea is un-done and you face the full charges and potential penalties at trial.
For example, in the recent case of Robinson v. State, at the time the defendant was charged, the potential penalty for CSC with a minor was 0-30 years in prison. While the case was pending, the law changed, and the penalty was increased to 25 years to life in prison.
The prosecutor offered to allow the defendant to plead under the old penalty of 0-30, and his attorney advised him to do it so that he would not be subject to the new penalty of 25-life. The problem was that he was never subject to the new penalties – that would be what is called an ex-post facto violation, something that every attorney learns in law school.
The conviction was reversed, the plea undone, and now the defendant is facing trial again – but, if he loses, he can only be sentenced to the maximum potential penalty at the time of his arrest.
PCR Following a Trial
PCR can be based on mistakes that the attorney makes during their investigation, when advising their client, or during the trial.
In many cases, we don’t know whether you have grounds for PCR that may be successful until we re-investigate your case, talk to all witnesses, review the transcript from the trial, and determine whether the mistakes your attorney made rise to the level of ineffective assistance that would get you a new trial.
If you or a family member have been convicted of a crime and want to file a direct appeal or explore the possibility of post-conviction relief, call today at 843-353-3449 or fill out our contact form to schedule a free consultation with a Myrtle Beach criminal defense lawyer on the Axelrod team.