         THE STATE OF SOUTH CAROLINA 

              In The Supreme Court 


 Nelson H. Castro, Petitioner,

 v.

 State of South Carolina, Respondent.

 Appellate Case No. 2015-000021


             ON WRIT OF CERTIORARI



                Appeal From Horry County

  The Honorable Larry B. Hyman, Jr., Circuit Court Judge
The Honorable Kristi Lea Harrington, Post Conviction Judge


                  Opinion No. 27648 

      Submitted June 17, 2016 – Filed July 20, 2016 



            REVERSED AND REMANDED


 Deputy Chief Appellate Defender Wanda H. Carter, of 

 Columbia, for Petitioner. 


 Attorney General Alan Wilson and Assistant Attorney 

 General Caitlin Bazan Hastings, both of Columbia, for 

 Respondent. 

PER CURIAM: Petitioner seeks a writ of certiorari from the dismissal of his
application for post-conviction relief (PCR). We grant the petition for a writ of
certiorari, dispense with further briefing, reverse the order of the PCR judge, and
remand this matter for resentencing.

                 FACTUAL/PROCEDURAL BACKGROUND
After a trial, petitioner was convicted of trafficking cocaine between twenty-eight
and one hundred grams and was sentenced to fifteen years' imprisonment.
Petitioner filed a timely motion for resentencing, which was denied after a hearing.
Petitioner's conviction and sentence were affirmed on direct appeal. State v.
Castro, Op. No. 2012-UP-378 (S.C. Ct. App. filed June 20, 2012).

Petitioner filed an application for PCR alleging trial counsel was ineffective for
failing to object when the trial judge improperly considered petitioner's decision to
exercise his right to a jury trial as a factor in sentencing petitioner. The PCR judge
denied relief, finding petitioner failed to meet his burden of proving the allegation.

                                       ISSUE
Did the PCR judge err in finding petitioner failed to prove trial counsel was
ineffective in failing to object when the trial judge considered petitioner's decision
to exercise his constitutional right to a jury trial as a factor in sentencing
petitioner?

                                 LAW/ANALYSIS
In this case, petitioner was charged with four drug related offenses. One month
before his trial, the State offered to dismiss several of petitioner's charges and
recommend a minimum sentence in exchange for petitioner's decision to plead
guilty to trafficking between twenty-eight and one hundred grams of cocaine.
Petitioner declined the offer, and a trial date was set for his trafficking charge.
Immediately preceding the trial, the trial judge explained to petitioner that the
State's plea offer was still on the table, stating the following:

             I have pre-tried this with your attorney, and I will tell you
             I am inclined to sentence on a plea [to] seven years. I
             would not be so inclined in the event of trial. Also, you
             would [sic] regardless of how this trial comes out, you
             would still be looking at the other three charges as well
             for which you could be tried and would be tried.
             ....

             Now, your attorney tells me that you do not wish to
             accept this offer by the State, that you want to go to trial
             on this charge, and ultimately for all the charges. Is that
             what you want to do, [petitioner]? Are you sure that's
             what you want to do?

(emphasis added).

Petitioner responded that he wanted to proceed to trial. At sentencing, the
following colloquy occurred:

             [The State]:     . . . . As Your Honor is well aware,
                              [petitioner] was offered to plead to a
                              minimum sentence last month. He was
                              arraigned. He chose to reject the plea
                              offer.

             [Trial Judge]: In addition, he was given the concession
                            of dismissal of several other pending
                            charges that have not been tried?

             [The State]:     That is correct, Your Honor, if he pled
                              guilty . . . .

                              The State does not seek or request any
                              mercy on this Defendant, Your Honor.

             [Trial Judge]: [Petitioner], anything you want to tell
                            me?

             [Petitioner]:    (Nods in the negative.)

             [Trial Judge]: [Petitioner], this is classified by the
                            Legislature in this State as not only a
                            violent crime, but a most serious offense.
                            It has a no probation, no suspension of
                              sentence clause in the sentence.

                              You are different from these other
                              defendants in that they have cooperated
                              and they have acknowledged their
                              responsibility for the crimes that they
                              have committed.

                              [Petitioner], this is, as I said, an
                              extremely serious offense. The State has
                              had to take you to trial on a case where
                              there was overwhelming evidence of your
                              guilt. The jury has found you guilty, and
                              I sentence you to incarceration in the
                              State Department of Corrections for a
                              period of fifteen years.

(emphasis added).1

Trial counsel did not object at any point during this colloquy. Trial counsel filed a
timely motion for resentencing; however, at no point did trial counsel argue
petitioner's sentence should be reconsidered due to the trial judge's improper
consideration of petitioner's decision to exercise his right to a jury trial.

The trial judge denied the motion for resentencing, giving the following reasons for
his imposition of a long sentence: (1) there was overwhelming evidence presented
at petitioner's trial, including a video recording of petitioner selling approximately
eighty-four grams of cocaine to a confidential informant; (2) the State might drop
petitioner's pending charges if petitioner were given an "appropriate sentence;" and
(3) in his opinion, fifteen years of incarceration was a mid-range sentence for
trafficking. Additionally, the trial judge stated, "I certainly don't penalize anybody
from going to trial . . . But acceptance of responsibility is, I believe, a valid . . .


1
  Two co-defendants were arrested for the same transaction as petitioner. One of
these co-defendants testified at petitioner's trial, revealing that, although he was
originally indicted for trafficking cocaine, he pleaded guilty to a lesser offense and
received a sentence of three years' imprisonment.
consideration for [t]he Court."2

On PCR, petitioner alleged trial counsel was ineffective in failing to object to the
trial judge's consideration of petitioner's decision to exercise his right to a jury trial
as a factor in sentencing petitioner.

The PCR judge found trial counsel's testimony, "[I]t just never struck me that
[petitioner] was going to be punished because we went to trial, and so I didn't raise
it in that context" indicated trial counsel had a "valid strategic reason" for failing to
object to petitioner's sentence on that ground. Further, the PCR judge found
petitioner "failed to demonstrate he would have received a different sentence if
such an objection had been made" because the trial judge articulated a "number of
factors" for petitioner's fifteen-year sentence, including petitioner's immigration
status, petitioner's pending charges, and the overwhelming evidence presented
against petitioner at trial. Accordingly, the PCR judge found petitioner did not
meet his burden of proving the deficiency or prejudice required for a finding of
ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984) (to prove ineffective assistance of counsel, the
applicant must show counsel's performance fell below an objective standard of
reasonableness; and but for counsel's error, there is a reasonable probability the
result of the trial would have been different).

Petitioner argues the PCR judge erred because the transcript of the pre-trial
conference and sentencing colloquy reveal that the trial judge abused his discretion
when he improperly considered petitioner's decision to proceed to trial as a factor
in sentencing petitioner to fifteen years' imprisonment. Petitioner further argues, if
counsel had objected to the sentence on that ground, there is a reasonable
probability the trial judge would have sustained the objection and modified the
sentence, or, at the very least, the objection would have been preserved for
appellate review.

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury of the State . . . ." U.S. Const. amend. VI. When a
trial judge considers the fact that the defendant exercised his or her constitutional

2
 On direct appeal, petitioner argued the trial judge abused his discretion by
improperly considering petitioner's decision to exercise his right to a jury trial
when sentencing petitioner. The Court of Appeals held this issue was not
preserved for review.
right to a jury trial as a factor in sentencing the defendant, it is an abuse of
discretion. See Davis v. State, 336 S.C. 329, 520 S.E.2d 801 (1999) (holding
counsel was ineffective in failing to object when the trial judge indicated the
reason he sentenced Davis more harshly than two similarly-situated offenders who,
unlike Davis, had pled guilty was because those offenders admitted their guilt);
State v. Hazel, 317 S.C. 368, 453 S.E.2d 879 (1995) (holding the trial judge abused
his discretion when the judge considered the fact that Hazel did not plead guilty in
declining to grant Hazel's request for sentencing under the Youthful Offender Act).

We hold the statements made by the trial judge clearly reveal he improperly
considered petitioner's decision to exercise his right to a jury trial in sentencing
petitioner. The PCR judge erred in concluding that, because the trial judge
"articulated that [petitioner's] sentence was based on a number of factors,"
petitioner failed to prove he was prejudiced by counsel's deficient performance.
Rather, a trial judge abuses his or her discretion when he or she considers the fact
that the defendant exercised his or her constitutional right to a jury trial as a factor
in sentencing the defendant. Thus, although evidence from the record of other,
valid reasons for a sentence might aid an appellate court in determining whether
the trial court improperly considered a defendant's decision to proceed to trial
during sentencing, those other sentencing factors do not negate the abuse of
discretion that occurs when one of the sentencing factors considered by the trial
judge was the defendant's decision to proceed to trial. See Davis, supra (holding
the trial judge abused his discretion by considering the fact that the defendant
exercised his right to a jury trial in sentencing the defendant); Hazel, supra (same);
State v. Follin, 352 S.C. 235, 257-58, 573 S.E.2d 812, 824 (Ct. App. 2002) ("We
caution the Bench that a trial judge abuses his or her discretion in sentencing when
the judge considers the fact that the defendant exercised the right to a jury trial.")
(emphasis added); see also State v. Brouwer, 346 S.C. 375, 388, 550 S.E.2d 915,
922 (Ct. App. 2001) (remanding for a new sentencing hearing pursuant to Hazel,
supra, stating, "Although the [trial judge] herein also stated it had never, and never
would, 'punish someone for exercising their right to a jury trial,' we believe the
mere disavowal of wrongful intent cannot remove the taint inherent in the [trial
judge's] commentary, especially since the record fails to reflect an otherwise
appropriate basis for Brouwer's disparate sentence."). Accordingly, regardless of
the fact that the trial judge considered the overwhelming evidence presented
against petitioner, as well as his his pending charges and immigration status, in
sentencing petitioner, and, despite the fact that the trial judge stated he was not
"punishing" petitioner for choosing to exercise his right to a jury trial, the trial
judge unequivocally considered petitioner's decision to reject a plea offer and
proceed to trial as a factor in sentencing petitioner. This was improper.

Further, we find there is no evidence to support the PCR judge's finding that trial
counsel articulated a "valid strategic reason" for failing to object to the trial judge's
improper consideration of petitioner's decision to proceed to trial in sentencing
petitioner. See Cherry v. State, 300 S.C. 115, 386 S.E.2d 624 (1989) (stating that,
in reviewing a PCR judge's decision, this Court is concerned only with whether
there is any evidence of probative value to support that decision). Instead,
counsel's testimony from the PCR hearing reveals no strategic discretion was
employed by counsel on this matter at all. See Foye v. State, 335 S.C. 586, 518
S.E.2d 265 (1999) (counsel's performance did not constitute valid strategy where
counsel did not even consider the question and thus failed to use discretion in
employing an appropriate strategy).

                                   CONCLUSION
Because trial counsel was deficient in failing to object to the trial judge's improper
consideration of petitioner's decision to exercise his right to jury trial in sentencing
petitioner, and, had the objection been preserved for appeal, an appellate court
would have held the trial judge abused his discretion, we hold the PCR judge erred
in denying petitioner's application for PCR. Accordingly, we reverse the PCR
judge's denial of relief and remand for resentencing.

REVERSED AND REMANDED.

PLEICONES, C.J., BEATTY, KITTREDGE, HEARN, and FEW, JJ., concur.
