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When should a pcr petition be amended?

When should a pcr petition be amended?
Axelrod & Associates, P.A.

In Love v. State, the SC Supreme Court reversed the PCR court’s denial of Love’s motion to amend his pleadings, although the request was not made until just before his hearing started. The case was remanded for a full hearing on the sole issue that the PCR court refused to hear.

Although the Supreme Court agreed with Love that the amendment should have been allowed, it’s not a good idea to wait until the last minute. When is it too late to amend a PCR petition?

If you have been convicted of a crime and believe that you have grounds for an appeal or post-conviction relief (PCR), contact the criminal defense, criminal appeal, and Myrtle Beach PCR attorneys at Axelrod and Associates immediately to find out how we can help.


Although some PCR petitions are filed by retained attorneys on behalf of their clients, many are filed pro-se by the defendant.

Once the petition has been filed, if the applicant cannot afford counsel, the court appoints a PCR lawyer from the civil appointment list (although it makes no sense to appoint a civil attorney to a criminal case, PCR’s are heard in the Court of Common Pleas, which makes them a civil matter).

Petitioners can then retain PCR counsel at any point before their hearing.

The claims of ineffective assistance of counsel contained in the original applications are often vague and may be unsupported by the evidence. That’s okay, and no one expects a non-attorney, pro-se inmate to draft and file a well-researched, high-quality PCR petition.

But, as soon as possible, an experienced PCR lawyer needs to review the case, investigate all possible PCR claims, and submit an amended petition containing their client’s PCR claims that are most likely to win.

If the amended petition is filed well in advance of the PCR hearing, no one will complain. If new claims are filed at the last minute, however, the Attorney General will object and ask the PCR court to exclude the claims.

When should a PCR petition be amended? As soon as you realize that there are additional claims that have merit. But what if that happens at the last minute? When will the PCR court allow last-minute claims?


The Court can and should allow last-minute amendments to a PCR petition whenever possible, except when the amendment would cause prejudice to the State’s case.

Note that “prejudice” does not mean “hurts their case.” “Prejudice” means that it would unfairly hurt their case – for example, if there is an essential witness that cannot be called to testify at the last minute or if there is a complex claim that would require additional investigation and research.

Love’s Last-Minute Claim – the Golden Rule Violation

At trial, the prosecutor made what could be considered a “golden rule” argument to the jurors without objection from Love’s trial attorney:

This is your opportunity to do justice in this case under the oath that you have taken. You can be instruments of justice for [Victim]. His death was not the final chapter of his life, this trial is the final chapter of his life.

The PCR court denied Love’s motion to amend the pleadings to include the “golden rule” issue because the amendment was sought at the last possible minute just before the PCR hearing began. Love was allowed to question the witnesses about the issue as a “proffer” for purposes of appeal, although the PCR court did not decide the issue.

If the court agrees that it was an impermissible “golden rule” argument, asking the jurors to put themselves in the victim’s shoes, Love could be granted a new trial. Two justices dissented, essentially stating that they did not believe the prosecutor’s argument warranted a new trial and therefore there was no point in remanding the case. The majority’s opinion disagreed, however, and held that it was a question for the PCR court to determine first.

The Court Should Freely Grant Permission to Amend the Pleadings

There are two ways that a last-minute issue can be considered at the PCR hearing. First, the SC Rules of Civil Procedure say that the Court should freely grant permission to amend the pleadings “when justice so requires and does not prejudice any other party:”

The South Carolina Rules of Civil Procedure apply in a PCR action to the extent the rules do not conflict with the PCR Act. See Rule 71.1(a), SCRCP. Rule 15(a), SCRCP, provides, “A party may amend his pleading once as a matter of course at any time before or within 30 days after a responsive pleading is served . . . . Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires and does not prejudice any other party.”

Second, Rule 15(b) states that “[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.”

If the other side objects, the court should freely allow the amendment of the pleadings “when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits.”

In Love’s case, the amendment would not have prejudiced the state in any way, and the state did not give the PCR court any reason why they would have been prejudiced. It was not disputed that the prosecutor made the statements in closing argument – it’s in the trial transcript.

Furthermore, prejudicial statements by prosecutors in closing argument and “golden rule” violations are a common issue that the Attorney General’s Office litigates often:

The issue advanced by Love in this attempted amendment was hardly complex and would have required little regrouping on the part of the State to defend against it. Little to no prejudice would result to the State if this amendment were granted; indeed, the State’s arguments against the proposed amendment were simply that the amendment was filed too late and that there would “be hell to pay” if the State had done the same thing. Neither of these arguments articulate the infliction of prejudice upon the State; therefore, there was no “valid reason for denying the motion.” See Skydive, 426 S.C. at 182, 826 S.E.2d at 588.

So, when should a PCR petition be amended? Immediately – as soon as you know there is an issue that was not raised in the original petition. If you do not raise all issues on direct appeal and PCR in the state court, you may also be barred from raising those issues in a federal habeas petition later…

If you wait until the last minute, the Court might allow you to amend the pleadings. If it is a complex issue, the Court might grant a continuance to give the state additional time to investigate and prepare.

But, if it involves a complex issue and the Court does not grant a continuance, you may be barred from raising the issue not only in the PCR court but later federal habeas proceedings as well.


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 843-916-9300 or fill out our contact form to schedule a free consultation with a Myrtle Beach criminal defense lawyer on the Axelrod team.

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