                    THE STATE OF SOUTH CAROLINA
                         In The Supreme Court

            Jerome Curtis Buckson, Petitioner,

            v.

            State of South Carolina, Respondent.

            Appellate Case No. 2016-001430



       ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

                       Appeal from Spartanburg County
                       J. Derham Cole, Trial Court Judge
                 J. Mark Hayes II, Post-Conviction Relief Judge


                             Opinion No. 27805
                 Heard December 13, 2017 – Filed May 23, 2018


                                  REVERSED


            Tricia A. Blanchette, of the Law Office of Tricia A.
            Blanchette, LLC, of Leesville, for Petitioner.

            Attorney General Alan McCrory Wilson and Assistant
            Attorney General Valerie Garcia Giovanoli, both of
            Columbia, for Respondent.


JUSTICE FEW: The post-conviction relief (PCR) court granted Jerome Curtis
Buckson relief and ordered a new trial. The State appealed, arguing no probative
evidence supports the findings of the PCR court. The court of appeals reversed the
PCR court. We reverse the court of appeals.
       I.     Facts and Procedural History

Buckson and Tiffany Foggie lived together in Foggie's apartment in Spartanburg
until at least early to mid-January 2006. At approximately three o'clock in the
morning on Monday, January 30, 2006, Buckson entered the apartment through a
kitchen window, and proceeded up the stairs to Foggie's bedroom. The door to the
bedroom was closed and locked. Foggie and Buckson had been yelling to one
another from the time he was outside, and Foggie told Buckson to leave. Instead, he
forced the door open to find another man in the room. After a brief struggle, Foggie
was shot. Buckson fled the apartment and called 911. He told the 911 operator the
man shot at him, and that he heard other shots as he fled. He later learned Foggie
was dead from a gunshot wound.

The State charged Buckson with murder and first degree burglary. At trial, Buckson
testified the man approached him with a gun, and when Foggie tried to "swat" the
gun down, it discharged. The jury found Buckson not guilty of murder. As to the
burglary, the State presented evidence that Buckson no longer lived in the apartment
on the night Foggie died, and Buckson's trial counsel presented evidence that he did.
The jury found Buckson guilty of first degree burglary. The trial court sentenced
him to twenty years in prison. The court of appeals affirmed. State v. Buckson, Op.
No. 2010-UP-282 (S.C. Ct. App. filed May 20, 2010).

Buckson filed a PCR application alleging ineffective assistance of counsel.
Buckson's primary claim was trial counsel was ineffective in his presentation of
evidence that Buckson still lived in the apartment on the night Foggie died. See
State v. Singley, 392 S.C. 270, 276, 709 S.E.2d 603, 606 (2011) (stating "'one cannot
commit the offence of burglary by breaking into his own home'" (quoting State v.
Trapp, 17 S.C. 467, 470 (1882))).1 The PCR court found "trial counsel was
[deficient] when he failed to prepare and investigate, failed to call witnesses, and
failed to utilize trial witnesses to establish that the apartment . . . was . . . his . . .
residence," and Buckson "was prejudiced as a result of counsel's [deficient
performance]." The PCR court granted Buckson a new trial.

The State appealed by filing a petition for a writ of certiorari in which it raised four
separate issues. Three of the issues relate to Buckson's primary claim. As to these

1
 In Trapp, we used the word "house." 17 S.C. at 470. In Singley, we used "home."
392 S.C. at 276, 709 S.E.2d at 606.
three issues—which we address collectively—the State argued only that the PCR
court's findings of deficiency and prejudice were not supported by any probative
evidence. The State raised no questions of law, and did not make any argument that
the PCR court failed to defer to the strategic considerations of trial counsel. The
State's other issue related to a different claim we need not address.2

We transferred the State's certiorari petition to the court of appeals pursuant to Rule
243(l) of the South Carolina Appellate Court Rules. The court of appeals granted
the petition, and reversed in an unpublished opinion. Buckson v. State, Op. No.
2016-UP-174 (S.C. Ct. App. filed Apr. 13, 2016). We granted Buckson's petition
for a writ of certiorari, and now reverse the court of appeals.

      II.    Analysis

We begin our analysis by summarizing the evidence trial counsel presented on the
question of whether Buckson still lived with Foggie on January 30th. First, counsel
called Buckson's mother, who testified she was very close to Foggie and talked to
her "almost every day," including Sunday night, the 29th. When asked "where was
Buckson staying," she replied "with Tiffany Foggie. . . . That's where he lived."
Buckson's mother also testified the reason Buckson was not at the apartment earlier
Sunday evening is that he was at the mother's house babysitting her youngest son.
Chad Tate—who fathered two children with Foggie—testified he called his children
daily, and Buckson was still answering the phone "most every day" in January 2006.
Tate also testified that when he would pick his children up at Foggie's apartment, "I
would usually see Jerome Buckson." Counsel called Buckson's aunt, who testified
she "didn't miss a week" stopping by Foggie's apartment, and "[Buckson] lived there.
He definitely lived there." However, none of these witnesses specifically testified
Buckson still lived with Foggie on January 30th.

Finally, Buckson explained "I was her boyfriend," and that she asked him to move
in with her "a year before the crime happened." He testified he spent Friday night

2
 The State's other issue relates to Buckson's claim that trial counsel was ineffective
for not objecting to the jury's completed verdict form. Because we reinstate the PCR
court's ruling that Buckson is entitled a new trial based on his primary claim, we do
not address the verdict form issue. See Workman v. State, 412 S.C. 128, 133, 771
S.E.2d 636, 639 (2015) (recognizing that because the applicant will receive PCR on
one claim, "we need not address" the remaining issues) (citing Futch v. McAllister
Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999).
the 28th at the apartment, but he spent Saturday night at his Mom's house because
"she was having health issues and I wanted to look after them, but I went back to the
apartment basically Sunday morning." Buckson testified Foggie sent him text
messages on Sunday, and "she called me and asked me what time I was coming
home." He testified the last time he talked to Foggie on the phone was 11:30 Sunday
night. Counsel introduced photographs of the interior of Foggie's apartment taken
by law enforcement. Buckson identified a number of his personal items shown in
the photographs, including his toothbrush and some clothing. Buckson explained
the reason he did not have a key on January 30th, and that it was common for him
to use the window to enter the apartment. Buckson specifically testified he still lived
with Foggie "the weekend of January 30th."

At his PCR trial, Buckson presented the testimony of five witnesses he claims trial
counsel should have called at the criminal trial. Much of this testimony is similar to
testimony elicited by trial counsel. However, some of the testimony was new and
was not presented to the jury. For example, Elliot Cannady was in Foggie's
apartment during the day on Sunday with his co-worker Mark Watson, the man
Buckson later found in Foggie's bedroom with a gun. Cannady testified it appeared
that "a man had been living in the apartment," and Foggie appeared "jittery, afraid"
and made comments about being worried that her "boyfriend" was coming home.
Referring to Foggie and Watson, Cannady testified "it appeared from their actions
and conduct that they were concerned about that man, whether it be a friend or
boyfriend, returning to the apartment that night."

Antwan Martin testified he spent the entire day on Sunday the 29th with Buckson.
Martin explained it was his understanding "that on January 29th, . . . Mr. Buckson
. . . lived at that apartment with Ms. Foggie," and "everything appear[ed] to [me] as
if they were still dating and living together on January 29th." Martin also testified
Buckson had numerous missed calls from Foggie that day.

Lloyd Williams was Foggie's stepfather. He testified at the PCR trial that he visited
Foggie and her children at the apartment "at least once a week," and Buckson was
there "most of the time." He explained his understanding "that they were still dating
on the night of January 29, 2006," and he talked to Foggie "often enough that [he]
would know if they were not dating." Williams went to the apartment on Sunday
the 29th, and Foggie would not come to the door. When Foggie finally let Williams
in, she explained to him "she didn't want to come to the door because she thought it
was [Buckson]." Williams testified Watson was there, and Williams said "Oh, y'all
over here creeping." PCR counsel asked, "And would that be 'creeping' because you
knew that Mr. Buckson wasn't home at the time and it was something that she was
doing behind his back?" Williams equivocated, responding, "Well, not directly in
that order." PCR counsel pushed the question again later, asking, "And was it your
understanding that Mr. Buckson was just merely going home that night?" After
Williams equivocated again, PCR counsel had Williams silently read a portion of a
written statement he gave PCR counsel's investigator, and the following took place,

             Counsel:      Reading that statement, does that help refresh
                           your memory as to whether or not you knew
                           he was living there?

                           Did you, in fact, believe he was living there?

             Williams:     Yeah, I kind of -- I believed that, but that was
                           in the early stages, and when I would go over
                           there and she would tell me he's upstairs
                           asleep or something like that. So, I make the
                           assumption that he was living there.

Williams also testified "it was common knowledge that [Foggie] would keep the
kitchen window . . . unlocked so that they could . . . get in to unlock the back door."3
Cannady, Martin, and Williams each testified they were never contacted by trial
counsel or his investigator prior to Buckson's trial, but were willing to testify if they
had been called.

Based on this testimony, the PCR court found trial counsel's failure to call the PCR
witnesses at the criminal trial was unreasonable. The PCR court specifically found
Cannady, Martin, and Williams "to be credible," and that Buckson's defense to the
burglary charge "would have been aided by [their] testimony." The PCR court
recited several specific reasons he found this testimony would have made a
difference in the outcome of the trial. First, he found the testimony would have
contradicted the State's witnesses and corroborated Buckson's trial testimony. The
fact that none of the trial witnesses were in Foggie's apartment on Sunday, but
Cannady and Williams were, and Martin was with Buckson all day Sunday, supports
the PCR court's finding. In addition, the PCR court stated,



3
  It appears as though this testimony may be Williams reading from his previous
written statement. We cannot tell, however, as the State did not include the statement
in the Appendix at the court of appeals.
             Even though the [trial] witnesses provided some pertinent
             testimony, trial counsel called only one non-family
             member when these other vital non-family member
             witnesses were available. Interestingly, Lloyd Williams
             and Elliott Cannady were listed as potential State
             witnesses and were willing to testify for the defense
             despite being Ms. Foggie's stepfather and Mr. Watson's
             friend.

The PCR court found "these factors combined with the credibility of the witnesses'
testimony would have been highly persuasive to the jury and would have likely
affected the outcome of the trial." See Williams v. State, 363 S.C. 341, 343, 611
S.E.2d 232, 233 (2005) ("A PCR applicant claiming trial counsel rendered
ineffective assistance must demonstrate that (1) counsel's representation fell below
an objective standard of reasonableness and (2) but for counsel's error, there is a
reasonable probability that the outcome of the proceeding would have been
different." (citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984))).

An appellate court must give deference to the PCR court's factual findings, and must
uphold them if there is any evidence of probative value to support them. Sellner v.
State, 416 S.C. 606, 610, 787 S.E.2d 525, 527 (2016). In this case, the court of
appeals failed to observe this standard for appellate review. In its opinion, the court
of appeals stated it conducted "a thorough review of the record" from which it
concluded, "In our view, trial counsel acted reasonably." On the prejudice question,
the court of appeals stated, "We find [Buckson] failed to demonstrate he was
prejudiced."

Under the proper standard of review, the appellate court's "view" must be limited to
whether there is probative evidence to support the PCR court's factual findings.
Ordinarily, the appellate court is not free to make its own factual findings. Compare
Simmons v. State, 416 S.C. 584, 593, 788 S.E.2d 220, 225 (2016) (remanding to the
PCR court for findings, and stating, "We sit today in an appellate capacity and
making findings of fact de novo would be contrary to this appellate setting") with
Smalls v. State, 422 S.C. 174, ___, 810 S.E.2d 836, 847 (2018) (finding under unique
circumstances the appellate court may make the findings itself). The State appealed
the PCR court's award of relief on purely factual arguments, and this decision by the
State restricted the court of appeals to the deferential review we give factual findings
in PCR cases. Because there is ample evidence to support the PCR court's findings,
the court of appeals erred by not giving those findings deference.  
In most PCR cases in which the applicant seeks relief for trial counsel's failure to
call witnesses, the PCR court's analysis—and the analysis by the appellate court—
is focused on the strategic considerations of counsel in balancing the potential
benefits of calling a particular witness against the identifiable risks. See, e.g.,
Edwards v. State, 392 S.C. 449, 457, 710 S.E.2d 60, 64-65 (2011) (deferring to trial
counsel's strategic considerations); Jackson v. State, 329 S.C. 345, 350, 495 S.E.2d
768, 770-71 (1998) (same); Stokes v. State, 308 S.C. 546, 548, 419 S.E.2d 778, 779
(1992) (same). A PCR court's analysis of counsel's strategic decisions must be
"highly deferential" to counsel's judgment, and "a fair assessment of attorney
performance requires that every effort be made to eliminate the distorting effects of
hindsight." Strickland, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. "[A]
court must indulge a strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance." Id.

In his testimony at the PCR trial, Buckson's highly-experienced trial counsel
explained the strategic basis for the decisions he made. He testified,

             Every witness, while he brings something good, . . . brings
             cross-examination with him and sometimes that can be a
             disaster. You can lose more ground than you can gain. I
             try to call witnesses that I can get something out of and
             that the State won't have a stronger case when I sit down.

Counsel then articulated specific reasons he did not call Cannady, Martin, and
Williams. The State used the words "strategy" and "strategic decisions" in isolated
places in its brief to the court of appeals, and even refers to trial counsel's testimony
we quote above. Nevertheless, our law provides that issues must be raised in the
Statement of Issues on Appeal. Rule 208(b)(1)(B), SCACR. While we seek to be
flexible interpreting issue statements, "Ordinarily, no point will be considered which
is not set forth in the statement of the issues on appeal." Id. In this case, the issue
statements in the State's brief to the court of appeals say nothing whatsoever about
the strategic considerations of counsel. In addition, the State's arguments in the body
of the brief relate to the sufficiency of the evidence, not strategy, and the State does
not cite any legal authority on the issue of strategy.
     III.   Conclusion

We REVERSE the court of appeals, reinstate the PCR court's judgment granting
Buckson relief, and remand to the court of general sessions for a new trial.

HEARN, J., concurs. JAMES, J., concurring in a separate opinion in which
BEATTY, C.J., concurs. KITTREDGE, J., dissenting in a separate opinion.
JUSTICE JAMES: I concur in the majority opinion, but I write separately to
emphasize that our—and the court of appeals'—resolution of this appeal must be
guided by application of the correct standard of review. As the majority recites, and
as the dissent agrees, an appellate court must give deference to the PCR court's
factual findings and must uphold these findings if there is any evidence of probative
value to support them. While the court of appeals articulated the correct standard
of review, its analysis is proof it did not apply the correct standard of review in
reversing the PCR court.

The majority correctly concludes the court of appeals failed to apply the correct
standard of review. The dissent agrees with that statement but argues the State
should not be penalized because "the State did not ask the court of appeals to utilize
an incorrect standard of review." Therefore, the dissent concludes, we should
remand to the court of appeals to allow for reconsideration by the court of appeals
pursuant to the correct standard of review. I respectfully disagree with a remand, as
the only decision the court of appeals could correctly reach on remand would be the
one reached by the majority. That is the nature of the standard of review by which
we and the court of appeals are bound. Another PCR court may have analyzed the
same facts and the same issues and denied relief to Buckson; in such an instance, we
would likely be constrained to affirm that conclusion as well. However, based upon
the evidence presented at the PCR hearing, this particular PCR court concluded trial
counsel was deficient and that this deficiency prejudiced Buckson. Those
conclusions were driven by the PCR court's analysis of facts in the record. Our role
as a reviewing court is to determine whether evidence of probative value supports
the PCR court's factual conclusions. As the majority explains, probative evidence
in the record supports the PCR court's factual conclusions. That is the end of the
appellate inquiry, regardless of whether the inquiry is conducted by the court of
appeals or by this Court.

I also agree with the majority's discussion of the issue of a valid trial strategy. At
oral argument, the State argued that we should affirm the court of appeals because
trial counsel's actions were guided by a valid trial strategy. Until oral argument
before us, the State never advanced the argument that trial counsel's decisions were
guided by valid strategic considerations.4 Therefore, the majority properly declined
to address that issue.

BEATTY, C.J., concurs.

4
  Counsel for the State at oral argument before us did not author the State's briefs to
the court of appeals or to this Court.
JUSTICE KITTREDGE: While I agree with the majority that the court of
appeals applied the incorrect standard of review, I dissent from the Court's decision
to reverse the court of appeals and reinstate the judgment of the PCR court. Rather
than an outright reversal of the court of appeals, I would vacate the opinion and
remand to the court of appeals for reconsideration of the State's appeal in
accordance with the proper standard of review.
On certiorari from the court of appeals to the PCR court, the State argued that, as
to several particulars, there "was no probative evidence to support the PCR court's
finding[s]." The State's brief is significant in two respects. First, the assertion of
"no probative evidence" is tantamount to arguing that the PCR court erred as a
matter of law. The characterization by the majority that the State appealed "on
purely factual arguments" is unfair, in my judgment. Second, the State did not ask
the court of appeals to utilize an incorrect standard of review. I believe the State is
entitled to a proper consideration by the court of appeals of its appeal under the
proper standard of review.
If the issue were merely whether there is any evidence to support the finding of
deficient representation, I would likely join the majority and not waste time and
judicial resources by a remand to the court of appeals. It is my judgment that a
substantial question is presented as to whether there is any evidence to support the
finding of prejudice under the proper standard of review. By reversing the court of
appeals for utilizing the wrong standard of review, the Court gives Petitioner a pass
on the prejudice prong. Moreover, and in respectful response to the concurring
opinion, I see long-term value in remanding the case and requiring the court of
appeals to apply the proper standard of review.
