When your criminal defense lawyer receives a plea offer from the prosecutor and does not tell you, you may be entitled to post-conviction relief for ineffective assistance of counsel.

PCR based on ineffective assistance of counsel for bad advice related to guilty pleas usually come up in three types of situations:

• The attorney receives a plea offer from the state, does not communicate the plea offer to their client, the plea offer expires, and the prosecutor refuses to reinstate the plea offer;
• The attorney receives a plea offer from the state and advises their client to accept or reject the plea offer based on incorrect information about the law, sentence, or collateral consequences (immigration, parole eligibility, length of time to be served); or
• The attorney receives a plea offer from the state and advises their client to accept or reject the plea offer based on an incomplete or incorrect understanding of the evidence because the attorney did not conduct an independent investigation or interview witnesses.

Expired Plea Offers

In Collins v. State, the SC Supreme Court rejected Collin’s PCR claim based on his second attorney’s failure to ask the state to reinstate a plea offer that had expired before the second attorney came on to the case.

You Can’t PCR the PCR Lawyer…

It appears that Collins lost his PCR not because he was not entitled to PCR, but because his PCR attorney did not prepare him for the hearing and may have left out a more solid ground for PCR.

Collins originally had a public defender, who received a plea offer of 15 years (Collins was eventually sentenced to 25 years). According to the testimony at the PCR hearing, the public defender did not communicate that plea offer to Collins.

That attorney left the case and a second attorney took over before trial. The second attorney showed Collins the expired plea offer but did not ask the prosecutor to reinstate the plea offer because Collins said that he needed more information before making a decision.

The PCR claim was based, in part, on the second lawyer’s failure to ask the prosecutor to reinstate the plea offer. Obviously, if Collins didn’t ask the second attorney to do it, that’s not grounds for PCR.

Why Did Collins Lose His PCR?

I see two reasons this PCR was denied.

First, the original ineffective assistance was by the first lawyer, the public defender who received the plea offer and did not communicate it to his client. I haven’t seen the PCR petition, but it sounds like that was not alleged as a separate ground for post-conviction relief.

Second, it appears that Collins’ PCR lawyer did not adequately advise his client as to the grounds for PCR and what must be proven. To win any PCR based on counsel’s failure to communicate a plea offer, the client must testify that he would have accepted the plea offer if counsel had communicated it to him.

From the context, it seems that Collins is alleging that he would have accepted the plea offer – but he didn’t say it during the PCR hearing. The failure to elicit that one piece of testimony during the PCR hearing was fatal to Collins’ case.

When Collins later did not ask his second attorney to try to reinstate the plea offer, it may have been because the plea offer had expired, and Collins didn’t see the point in it – we don’t know, because his PCR counsel did not explore those questions at the PCR hearing.

If Collins had testified that he would have accepted the plea offer, and if there was a reasonable explanation for why he did not pursue it with the second attorney (especially if it was based on advice from the second attorney), maybe Collins would have had a shot at PCR.

You have to wonder, if Collins’ PCR counsel had met with him, reviewed the grounds for PCR that Collins was alleging and what needed to be proven, and made sure that he was prepared for the PCR hearing, would the outcome have been different?

PCR – Post Conviction Relief Lawyer in Charleston, SC

If you believe that you have grounds for post-conviction relief (PCR) in SC, make sure that your PCR attorney is fully investigating your PCR claims and that you are prepared for your PCR hearing. Contact Charleston criminal defense attorney Grant B. Smaldone now at (843) 808-2100 or by filling out our online contact form.