                     THE STATE OF SOUTH CAROLINA
                          In The Supreme Court

             Darryl Frierson, Petitioner,

             v.

             State of South Carolina, Respondent.

             Appellate Case No. 2016-001940


       ON WRIT OF CERTIORARI TO THE COURT OF APPEALS



                           Appeal from Richland County
                       Clifton Newman, Circuit Court Judge


                              Opinion No. 27801
                   Heard March 29, 2018 – Filed May 23, 2018


                          AFFIRMED AS MODIFIED


             Appellate Defender Kathrine Haggard Hudgins, of
             Columbia, for Petitioner.

             Attorney General Alan McCrory Wilson and Assistant
             Attorney General James Clayton Mitchell, III, of
             Columbia, for Respondent.


JUSTICE HEARN: Petitioner Darryl Frierson pled guilty to assault and battery of
a high and aggravated nature, criminal conspiracy, kidnapping, and armed robbery
for his role in masterminding a $9.8 million heist from an armored truck. He was
sentenced to an aggregate term of thirty-five years in prison. Thereafter, he applied
for post-conviction relief (PCR), asserting he would not have pled guilty but instead
would have proceeded to trial had his plea counsel adequately informed him of the
possibility to suppress evidence gathered from law enforcement's warrantless
placement of a mobile tracking device on his vehicle. The PCR court denied relief,
and the court of appeals affirmed. Frierson v. State, 417 S.C. 287, 789 S.E.2d 762
(Ct. App. 2016). We affirm as modified and take this opportunity to clarify the
correct standard to determine prejudice when a defendant seeks PCR after pleading
guilty.

                 FACTUAL/PROCEDURAL BACKGROUND
       Around midnight on May 10, 2007, Frierson and his co-worker, David Jones,
were refueling their company's armored truck at a gas station outside of Columbia
when several individuals overpowered them, forcing them back into the truck at gun
point. The attackers drove the truck to a nearby strawberry field, tied Jones up with
duct tape, transferred the money to a get-away car, and fled, leaving Frierson and
Jones behind. Unlike Frierson, Jones was severely injured, but he was able to remove
the duct tape and walk to a night club where he called police. Frierson remained
behind in the truck, claiming he was too injured to find help. Eventually, Jones and
Frierson were transported to the hospital, where law enforcement arrived to speak
with them. Investigators immediately became suspicious of Frierson as they noticed
he appeared to have suffered no visible injuries whereas Jones was severely beaten.
Thereafter, Frierson vividly described the details of the crime scene, even though the
events occurred in the dark around midnight. After Frierson was released from the
hospital, he went to the police station, where police observed him through a two-
way mirror naturally moving his arms despite wearing a sling and claiming his
shoulder was injured. Frierson agreed to take a polygraph test, which he failed.
Believing the crime was an "inside job," law enforcement continued its surveillance
of Frierson by placing a tracking device on the outside of his vehicle, which revealed
he was traveling extensively and shopping at a Florence mall.

      While police tracked Frierson's movements, more incriminating evidence was
uncovered, including a blue latex glove found in Frierson's trash outside his home
that matched a glove found inside the armored truck shortly after the robbery. Police
talked to Paul Whitaker, another co-worker and close friend of Frierson, who
subsequently confessed that he took part in the robbery and identified Frierson as
the mastermind. Thereafter, police searched Whitaker's house and found a
substantial amount of money and mall receipts belonging to Frierson.

      A few days later, pursuant to a valid arrest warrant, law enforcement officers
used the tracking information to locate Frierson in Columbia, and they arrested him
while he was driving with a friend, Domonique Blakney, who turned out to have
been involved in the crime as well. Police searched the car and found several
thousand dollars in cash. At the police station, investigators found pictures of bags
of money on Blakney's cell phone, and he confessed that Frierson was the
mastermind of the heist. Presented with Blakney's statements, Frierson subsequently
confessed, as did the remaining co-conspirators.

       Thereafter, plea counsel advised Frierson the placement of the tracking device
without a warrant was likely permissible;1 however, plea counsel was unaware of
section 17-30-140 of the South Carolina Code (2014).2 Frierson pled guilty and later
sought PCR, arguing plea counsel failed to adequately inform him that he could have
moved to suppress the information garnered from the tracking device on
constitutional grounds and based on section 17-30-140.3 Although Frierson testified
he would not have pled and instead proceeded to trial, the PCR court found his
testimony "wholly incredible." The court denied relief, finding counsel was not
deficient because he sufficiently researched the legality of the warrantless placement
of the device and concluding Frierson failed to establish prejudice, primarily based
on the court's credibility finding. The court of appeals affirmed, concluding there
was overwhelming evidence that "the outcome of [Frierson's] case would have been
no different had he chosen to proceed to trial." Frierson, 417 S.C. at 299, 789 S.E.2d


1
 Frierson pled guilty four years before the United States Supreme Court decided
United States v. Jones, 565 U.S. 400 (2012), holding the physical placement of a
monitoring device on a suspect's vehicle constituted a trespass on private property
and therefore a search under the Fourth Amendment. At the time, plea counsel relied
on United States v. Knotts, 460 U.S. 276 (1983), holding the use of a tracking device
to monitor the location of a defendant traveling along public roadways did not invade
any legitimate expectation of privacy and was not a "search" in violation of the
Fourth Amendment, and United States v. Karo, 468 U.S. 705, 713 (1984), holding
the placement of an electronic beeper in a container with the owner's consent did not
constitute a search because the buyer's privacy interests were not infringed when he
received possession of the container.
2
  Section 17-30-140(A) states, "The Attorney General or any solicitor may make
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.”
3
  Frierson actually discovered the existence of section 17-30-140 himself while
researching his case in prison.
at 768. We granted Frierson's petition for a writ of certiorari to review the court of
appeals' opinion.

                             STANDARD OF REVIEW
       We defer to the PCR court's factual findings and will uphold them if supported
by any evidence in the record. Smalls v. State, 422 S.C. 174, ___, 810 S.E.2d 836,
839 (2018). Furthermore, we afford great deference to a PCR court's credibility
findings. Goins v. State, 397 S.C. 568, 573, 726 S.E.2d 1, 3 (2012). Questions of law
are reviewed de novo, and we will reverse the PCR court if its decision is controlled
by an error of law. Jamison v. State, 410 S.C. 456, 465, 765 S.E.2d 123, 127 (2014).

                                  LAW/ANALYSIS
       To establish a claim of ineffective assistance of counsel, the defendant has the
burden of proving "(1) counsel failed to render reasonably effective assistance under
prevailing professional norms; and (2) counsel's deficient performance prejudiced
the applicant's case." McKnight v. State, 378 S.C. 33, 40, 661 S.E.2d 354, 357
(2008). In order to establish prejudice when challenging a guilty plea, a defendant
must prove "there is a reasonable probability that, but for counsel's errors, the
defendant would not have pled guilty, but would have gone to trial." Harden v. State,
360 S.C. 405, 408, 602 S.E.2d 48, 49 (2004). The crux of the inquiry is whether
counsel's ineffective performance affected the outcome of the plea process, not
whether the defendant would have been successful had he gone to trial. Alexander
v. State, 303 S.C. 539, 542, 402 S.E.2d 484, 485 (1991). As the United States
Supreme Court stated in Hill v. Lockhart, 474 U.S. 52, 59 (1985), "[I]n order to
satisfy the 'prejudice' requirement, the defendant must show there is a reasonable
probability that, but for counsel's errors, he would not have pled guilty and would
have insisted on going to trial."

        Because the prejudice inquiry in a case involving a guilty plea is so limited, it
was error for the court of appeals to conduct an overwhelming evidence analysis in
this case. See Smalls, 422 S.C. at ___, 810 S.E.2d at 843–47 (surveying cases that
discuss overwhelming evidence—all of which involved a conviction obtained at
trial). The court of appeals initially acknowledged the correct standard and affirmed
the PCR court's determination that Frierson failed to prove prejudice––and we affirm
this decision. However, thereafter, the court proceeded to discuss how the outcome
at trial would have been the same as Frierson's guilty plea due to the overwhelming
evidence of guilt against him. The court of appeals exceeded the proper scope of the
prejudice inquiry, and accordingly, we modify the portion of the court's opinion
which addresses overwhelming evidence. We reiterate the prejudice analysis is
limited to the outcome of the plea process—whether but for counsel's deficiency, the
defendant would have declined to plead and instead proceeded to trial.

       Despite the court of appeals' erroneous application of the standard of review,
it correctly deferred to the PCR court's finding that Frierson was not prejudiced.
Accordingly, we AFFIRM AS MODIFIED.



BEATTY, C.J., KITTREDGE, FEW and JAMES, JJ., concur.
