                    THE STATE OF SOUTH CAROLINA 

                         In The Supreme Court 


            Gerald Smith, Respondent,

            v.

            State of South Carolina, Petitioner.

            Appellate Case No. 2014-000951



       ON WRIT OF CERTIORARI TO THE COURT OF APPEALS



                         Appeal from Richland County
                     L. Casey Manning, Circuit Court Judge


                              Opinion No. 27551 

                    Heard June 4, 2015 – Filed July 29, 2015 



                                  AFFIRMED


            Attorney General Alan M. Wilson and Senior Assistant
            Attorney General David A. Spencer, both of Columbia,
            for Petitioner.

            Appellate Defender Robert M. Pachak, of Columbia, for
            Respondent.


      JUSTICE HEARN: Gerald Smith was indicted for murder and pled guilty
to voluntary manslaughter in the killing of his oxycontin supplier. He was
sentenced to twenty-four years' imprisonment after the State requested he receive
the maximum punishment. In this post-conviction relief (PCR) action, Smith
alleges his attorney was deficient for failing to object to the State's
recommendation after the State had previously promised to remain silent during
sentencing. The PCR court denied Smith's application and the court of appeals
reversed. Smith v. State, 407 S.C. 270, 754 S.E.2d 900 (Ct. App. 2014).

       We agree with the court of appeals' excellent analysis that the State's
recommendation of the maximum sentence was a breach of its agreement with
Smith even where the State did not get the expected benefit of its bargain, and that
Smith would not have pled guilty had he known the solicitor was going to breach
the agreement; therefore, plea counsel's failure to object constituted ineffective
assistance of counsel. See Thompson v. State, 340 S.C. 112, 531 S.E.2d 294
(2000) (holding counsel was ineffective for failing to object when the solicitor
recommended the trial judge impose the maximum sentence in contravention of its
agreement to stay silent); Jordan v. State, 297 S.C. 52, 374 S.E.2d 683 (1988)
(same).

       We take this opportunity to explain the proper remedy under these
circumstances. In Jordan, the Court reversed the PCR court's denial of relief and
remanded for either a new trial or resentencing. Id. at 52, 374 S.E.2d at 684. In
Thompson, the Court reversed the PCR court's denial of relief, and remanded
solely for resentencing. 340 S.C. at 118, 531 S.E.2d at 297. Here, presumably
following the precedent of Thompson, the court of appeals reversed and remanded
for resentencing. We now clarify the proper remedy is a new trial.1 Although
Smith's attorney was deficient for failing to object at the sentencing hearing, the
underlying question is whether Smith would have entered into the plea agreement
had he known the State was going to breach the agreement. See Jordan, 297 S.C.
at 54, 374 S.E.2d at 684 (stating a defendant alleging ineffective assistance of
counsel during a guilty plea must show "there is a reasonable probability that, but
for counsel's errors, he would not have pleaded guilty and would have insisted on
going to trial") (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). Therefore, the
proper remedy for counsel's ineffective assistance is invalidation of the entire
agreement.

      Nevertheless, we affirm the court of appeals' decision reversing and
remanding for resentencing because neither party appealed from the mandate
portion of the decision. The court of appeals' unappealed remand for resentencing

1
 We note that Smith requested only a new trial—not resentencing—during his
PCR hearing.
is thus the law of the case. See Atl. Coast Builders & Contractors, LLC v. Lewis,
398 S.C. 323, 329, 730 S.E.2d 282, 285 (2012) ("[A]n unappealed ruling, right or
wrong, is the law of the case."). Therefore, we affirm the decision of the court of
appeals in toto.

TOAL, C.J., KITTREDGE, J., and Acting Justice James E. Moore, concur.
PLEICONES, J., concurring in result only.
