                     THE STATE OF SOUTH CAROLINA 

                          In The Supreme Court 


            Matthew Jamison, Respondent,

            v.

            State of South Carolina, Petitioner.

            Appellate Case No. 2012-212996



       ON WRIT OF CERTIORARI TO THE COURT OF APPEALS



                          Appeal from Richland County 

                 William P. Keesley, Post-Conviction Relief Judge 



                              Opinion No. 27454 

                  Heard March 5, 2014 – Filed October 22, 2014 



                                  REVERSED


            Assistant Attorney General Brian T. Petrano, of
            Columbia, for Petitioner.

            Tricia A. Blanchette, of Columbia, for Respondent.


JUSTICE KITTREDGE: This is a post-conviction relief (PCR) matter.
Respondent Matthew Jamison pled guilty to voluntary manslaughter and was
sentenced to twenty years in prison. No direct appeal was taken. Respondent's
first application for PCR was denied. Respondent filed a second PCR application
alleging newly discovered evidence. The PCR judge granted relief, and the court
of appeals affirmed. Jamison v. State, Op. No. 2012-UP-437 (S.C. Ct. App. filed
July 18, 2012). We reverse.
                                        I.

This case involves a shooting that occurred at a party one Saturday evening in June
2000, following a series of altercations between apparent rival drug dealers, one of
whom was Respondent Matthew Jamison.1 On the night of the shooting,
Respondent encountered the rival group at a concert in Columbia, South Carolina.
An eyewitness testified that the group walked past Respondent and "gave him a
look like, yeah, we're going to get you tonight." After the concert, Respondent
encountered the group again in a parking lot. Hundreds of people were crowded in
the parking lot, and an eyewitness saw Respondent leaning against the front of a
vehicle in the parking lot. According to Respondent, an individual he referred to
as "Jig" pointed at him, and Jig and others with him approached Respondent as if
they were going to "blitz" or jump Respondent. Respondent pulled a gun and fired
shots towards the group. One of the bullets struck and killed the fifteen-year-old
victim, an innocent bystander who was not involved in the ongoing dispute. By all
accounts, the intended target was Jig.

Immediately following the shooting, Respondent was apprehended while
attempting to flee from the scene. That night, Respondent gave a statement to
police in which he admitted firing the gun into the crowd. Respondent was
indicted for murder, but his attorney negotiated with the solicitor for Respondent to
plead guilty to the lesser included offense of voluntary manslaughter.

Before accepting Respondent's guilty plea, the plea judge engaged in a thorough
plea colloquy with Respondent, specifically including the following:

      The Court: Now, realizing, [Respondent], that when you plead guilty,
             you admit the truth of the allegation contained in this
             indictment against you. You're saying that I had a gun and I
             shot [the victim] and he died. You understand that?

      The Defendant: Yes, sir.

      The Court: All right. I tell you that, sir, because you may have some

1
 Several weeks prior to the shooting, it appears Respondent was attacked in his
home by several men whose street nicknames are Jig, Little Thee, Fax, and Butter.
         defenses to this charge, [Respondent]. Of course, I have no
         way of knowing that, but you need to realize that by pleading
         guilty here today, you give up any defenses you might have.
         Do you understand that, sir?

The Defendant: Yes, sir.

....

The Court: Now, [Respondent], I'll ask you, once again, did you
       commit this offense?

The Defendant: Yes, sir.

The Court: All right. So, [Respondent], once again, you're telling me
       you are pleading guilty to . . . voluntary manslaughter,
       because you did, in fact, . . . shoot [the victim] and as a result
       of your gunshot, [the victim] was killed. You shot him and
       he died, is that correct?

The Defendant: Yes, sir.

....

The Court: Now, [Respondent] has anyone promised you anything or
       held out any hope of reward in order to get you to plead
       guilty?

The Defendant: No, sir.

The Court: Has anyone threatened you or used force to get you to
       plead guilty?

The Defendant: No, sir.

The Court: Has anyone used any pressure or intimidation to cause you
       to plead guilty?

The Defendant: No, sir.
      The Court: Have you had enough time to make up your mind as to
             whether or not you want to plead guilty?

      The Defendant: Yes, sir.

      The Court: Are you pleading guilty of your own free will and accord?

      The Defendant: Yes, sir.

Additionally, during the plea hearing, Respondent's counsel stated the following on
behalf of Respondent:

      [Respondent] had no individual animus against [the victim]. [The
      victim] was standing with a group of folks that had been engaged with
      [Respondent] some time in the past and that night as well and he fired
      towards that crowd because he thought that they were coming at him
      and he was coming at them.

      And he understands the aspect we know in the law as transferred
      intent. It was not a self-defense. It may have been a very imperfect
      self-defense. But those are the issues that we would have brought
      forward. But he had no individual animus. He had no reason. Didn't
      even know this boy. It was a shot at a crowd of people in a very
      crowded environment in which this young man was struck and killed
      and died as a result.

(emphasis added). The plea judge sentenced Respondent to twenty years in prison.
No direct appeal was taken.

In his first PCR application, Respondent alleged his guilty plea was not knowingly
and voluntarily entered. At the PCR hearing, plea counsel testified the theory of
the defense was as follows:

      It was that "Jig" had a gun and had come at—had come at
      [Respondent]. It was a very imperfect self-defense because nobody
      else sees a gun. There was no other gun found, as I recall it.
      [Respondent] in his statement to the police says something about—he
      fails to say to the police, I saw "Jig" with a gun while he was coming
        at me. His words were, "they were going to blitz me." That means a
        whole bunch of them were going to jump him. But later he tells me
        that "Jig" had a gun. And we wouldn't ever verify that. I mean, I
        talked to lots of witnesses, went to the scene, had a private
        investigator. We went out several times trying to get any one person
        to say that "Jig" had a gun. We couldn't do that.2

The PCR judge denied relief. Respondent sought a writ of certiorari, and his
counsel filed a Johnson3 petition. Respondent filed a pro se petition, in which he
raised, for the first time, a newly discovered evidence claim.

Specifically, Respondent claimed that, while serving his prison sentence, he met a
fellow inmate who allegedly was an eyewitness to the shooting incident and was
willing to provide testimony to support Respondent's self-defense claim. Attached
to Respondent's pro se petition was an affidavit of Theotis Bellamy, in which
Bellamy discussed the prior difficulties between Respondent and the group
involved in the incident and stated he believed Respondent would have been
further harmed "if things did not happen the way they did" on the night of the
shooting. Bellamy's affidavit also stated he previously had an opportunity to give
his version of what happened on the night of the shooting; however, he did not
share his knowledge with defense investigators earlier because Jig had threatened
his family and he was afraid. Ultimately, the court of appeals denied the petition.

While the Johnson petition from his first PCR application was pending before the

2
 Indeed, by all accounts, finding willing witnesses was an extremely difficult task.
At the plea hearing, the solicitor's comments revealed the similar difficulty the
State encountered in obtaining witnesses:

        One of the other tragic parts of this case was that nobody even came
        forward. Of the hundreds of people at the party, not one was willing
        to give the police a statement that night as to what they saw and heard.
        Even when we were preparing this case . . . out there trying to find
        other witnesses, these people: "Jig" and "Thee," these people that
        could have been witnesses—"Butter," who is a relative of the victim's,
        they weren't even willing to come forward and help the State out in
        this case.
3
    Johnson v. State, 294 S.C. 310, 364 S.E.2d 201 (1988).
court of appeals, Respondent filed a second PCR application alleging newly
discovered evidence and attached a second affidavit by Bellamy that was
essentially the same as the first.

At the second PCR hearing, Respondent admitted shooting the victim but
maintained he was defending himself against the group led by Jig. Respondent
claimed he was scared when the group approached him because they had
previously shot at and threatened him and jumped on one of his family members.
Respondent explained that his guilty plea was influenced by the fact that no
witness would come forward and corroborate his contention that Jig had a
weapon.4 Respondent stated he would not have pled guilty but would have insisted
on going to trial if he could have presented a stronger self-defense claim.

Bellamy testified at the PCR hearing that he knew the members of the rival group
and that they carried guns. Specifically, Bellamy said he saw Jig with a gun in his
pants just before the shooting occurred. Bellamy stated he saw the group approach
Respondent at the after-party, gesturing "like they're fixing to pull out weapons,"
and that Respondent shot at Jig before Jig could shoot Respondent. Bellamy stated
he did not come forward previously because Jig threatened him and his family, but
now that Jig was serving time in the federal penitentiary, he felt more comfortable
testifying in court.

The PCR judge granted Respondent relief on the basis of "fundamental fairness"
and ordered a new trial. The PCR judge found Respondent met his burden of
proving that Bellamy's eyewitness testimony constituted newly discovered
evidence and that Bellamy's testimony would likely change the result at trial. In
granting relief, the PCR judge stated:

      While the record demonstrates that a claim of self-defense was known
      to the Applicant from the outset and that his attorney tried to get
      someone to back up that claim, no one would come forward. This

4
 Respondent explained that although he admitted the shooting from the outset, his
counsel advised him that it would be difficult to establish a self-defense claim that
would overcome the State's physical evidence and Respondent's statement to police
on the night of the shooting, in which Respondent did not claim to be acting in
self-defense or explain that he fired shots because he was scared for his life when
he saw Jig with a gun.
      Court is concerned about granting a new trial because a claim of self-
      defense can be waived. Yet, no law has been cited to the Court
      concerning whether the entry of a guilty plea where self-defense was
      specifically mentioned, constitutes a waiver of that defense and
      prohibits granting a new trial on [the basis of] after-discovered
      evidence when someone does not come forward to corroborate that
      claim. . . . Here, the Applicant could have gone to trial [and] told his
      version of the events to the jury . . . . While the Court has concerns
      about granting a new trial when the Applicant clearly knew he had a
      self-defense claim from the beginning and did not present it, the Court
      feels that the issue is one of fundamental fairness. . . . Plea counsel
      informed the court and undoubtedly advised the Applicant that the
      claim of self-defense could not be established. It was too risky to
      attempt, in the opinion of plea counsel. The only reasonable reading
      of this record is that the Applicant relied upon that advice to elect to
      accept the plea bargain.5 . . . So, despite the fact that there is a
      question in the Court's mind as to whether a person who waives a
      known claim of self-defense can thereafter assert it when a
      corroborating witness comes forth with after-discovered evidence, in
      the absence of authority being cited by either side on this issue, this
      Court feels that fairness dictates a new trial.

The State sought a writ of certiorari, which was granted, but the court of appeals
affirmed the PCR judge's order. Jamison v. State, Op. No. 2012-UP-437 (S.C. Ct.
App. filed July 18, 2012). This Court granted the State's petition for a writ of
certiorari to review the court of appeals' decision.

                                        II.

"This Court gives deference to the PCR judge's findings of fact, and 'will uphold
the findings of the PCR court when there is any evidence of probative value to
support them.'" Jordan v. State, 406 S.C. 443, 448, 752 S.E.2d 538, 540 (2013)
(quoting Miller v. State, 379 S.C. 108, 115, 665 S.E.2d 596, 599 (2008)).
"However, we review questions of law de novo, and 'will reverse the decision of
the PCR court when it is controlled by an error of law.'" Id. (quoting Goins v.
State, 397 S.C. 568, 573, 726 S.E.2d 1, 3 (2012)).

5
 Respondent has never raised an ineffective assistance of counsel claim regarding
counsel's advice to accept the plea bargain.
                                         A. 


The State contends Respondent's newly discovered evidence claim is successive
and thus procedurally barred because it was previously raised to the court of
appeals in Respondent's pro se Johnson petition in the appeal of his first PCR
application. We disagree.

The South Carolina Uniform Post-Conviction Procedure Act (PCR Act) allows an
applicant to file an application for relief "[i]f the applicant contends that there is
evidence of material facts not previously presented and heard that requires vacation
of the conviction or sentence." S.C. Code Ann. § 17-27-45(C) (2014) (allowing
applications to be filed within one year of the date of actual discovery of the facts
or from the date when the facts "could have been ascertained by the exercise of
reasonable diligence").

Following Respondent's first PCR hearing and the subsequent order denying relief,
Respondent discovered Bellamy was willing to testify to what happened on the
night of the shooting. Accordingly, Respondent attached Bellamy's first affidavit
to his pro se petition to the court of appeals pursuant to Johnson v. State. The
court of appeals denied the petition, stating in its order the decision was made
"[a]fter careful consideration of the entire record as required by Johnson v. State."

The State argues the language in the court of appeals' order reflects that its review
of all issues was on the merits, and thus, Respondent's second PCR application was
successive because Bellamy's affidavit was previously presented to and considered
by the court of appeals.

A petition filed pursuant to Johnson v. State is the post-conviction relief equivalent
of a direct appeal filed pursuant to Anders v. California.6 Johnson, 294 S.C. at
310, 364 S.E.2d at 201. This Court recently held that, "[u]nder the Anders
procedure, an appellate court is required to review the entire record, including the
complete trial transcript, for any preserved issues with potential merit." McHam v.
State, 404 S.C. 465, 475, 746 S.E.2d 41, 46 (2013) (citations omitted). Thus, this
Court concluded the merits of an unpreserved claim were not considered by the
court of appeals on direct appeal pursuant to Anders. Id. at 475, 746 S.E.2d at 47
(noting issues raised on direct appeal and found to be unpreserved may be the

6
    386 U.S. 738 (1967).
subject of a subsequent PCR claim).

Although Bellamy's affidavit was presented to the court of appeals in Respondent's
pro se petition, it was not properly before the court of appeals because it was not
part of the lower court record. See Rule 243(f), SCACR (the appendix shall
include only matter that was presented to the PCR court). Because the discovery
of Bellamy's testimony was not properly before the court of appeals, it was not part
of the Johnson review. McHam, 404 S.C. at 475, 746 S.E.2d at 47. Therefore we
find, as a procedural matter, this issue was properly raised in Respondent's second
PCR application.

                                         B.

The State also argues that because Respondent pled guilty, he is therefore not
entitled to PCR in the face of newly discovered evidence. Specifically, the State
contends that by pleading guilty, Respondent waived any argument relating to
potential trial evidence, including claims of newly discovered evidence. Notably,
Respondent has never argued that his guilty plea was entered involuntarily or
unknowingly or that he pled guilty as a result of ineffective assistance of counsel;
rather, the sole basis upon which Respondent has claimed to be entitled to PCR
was because of the newly discovered evidence of Bellamy's testimony. Thus, the
narrow issue presented to this Court is whether and to what extent an otherwise
valid guilty plea may be vacated in PCR proceedings on the basis of newly
discovered evidence.

Traditionally, in South Carolina, "'[t]o obtain a new trial based on after discovered
evidence, the party must show that the evidence: (1) would probably change the
result if a new trial is had; (2) has been discovered since trial; (3) could not have
been discovered before trial; (4) is material to the issue of guilt or innocence; and
(5) is not merely cumulative or impeaching.'" McCoy v. State, 401 S.C. 363, 368
n.1, 737 S.E.2d 623, 625 n.1 (2013) (quoting Clark v. State, 315 S.C. 385, 387–88,
434 S.E.2d 266, 267 (1993)).

The State contends the PCR judge committed an error of law in applying this
traditional, five-factor newly discovered evidence test in evaluating Respondent's
PCR claim. Specifically, the State argues this traditional five-factor test applies
only where a defendant has gone to trial and was convicted—not where a
defendant pled guilty. The State further contends that, during the plea colloquy,
Respondent waived his right to have a trial and present any defenses, and therefore,
Respondent may not subsequently raise a PCR claim on the basis of newly
discovered evidence relating to a claim of self-defense.

"[I]n South Carolina, a guilty plea constitutes a waiver of nonjurisdictional defects
and claims of violations of constitutional rights." State v. Rice, 401 S.C. 330, 331–
32, 737 S.E.2d 485, 485–86 (2013) (citing Hyman v. State, 397 S.C. 35, 44, 723
S.E.2d 375, 379 (2012)). "'A guilty plea represents a break in the chain of events
which has preceded it in the criminal process.'" Id. at 332, 737 S.E.2d at 486
(quoting Tollett v. Henderson, 411 U.S. 258, 267 (1973)). By entering a guilty
plea, "[a]n accused [] waives the right to trial and the incidents thereof and the
constitutional guarantees with respect to criminal prosecutions." Rivers v.
Strickland, 264 S.C. 121, 124, 213 S.E.2d 97, 98 (1975) (citation omitted). "A
plea of guilty is an admission or a confession of guilt, and [is] as conclusive as a
verdict of a jury; it admits all material fact averments of the accusation, leaving no
issue for the jury, except in those instances where the extent of the punishment is
to be imposed or found by the jury." State v. Fuller, 254 S.C. 260, 266, 174 S.E.2d
774, 777 (1970) (citations omitted); see North Carolina v. Alford, 400 U.S. 25, 37
(1970) (noting guilty pleas constitute a waiver of trial and an express admission of
guilt upon which a sentence may be imposed). Thus, "'[w]hen a criminal
defendant has solemnly admitted in open court that he is in fact guilty of the
offense with which he is charged, he may not thereafter raise independent claims
relating to the deprivation of constitutional rights that occurred prior to the entry of
the guilty plea.'" Rice, 401 S.C. at 332, 737 S.E.2d at 486 (quoting Tollett, 411
U.S. at 267).

Nevertheless, the PCR Act provides that "[a]ny person who has been convicted of,
or sentenced for, a crime and who claims . . . that there exists evidence of material
facts, not previously presented and heard, that requires vacation of the conviction
or sentence in the interest of justice" is entitled to seek post-conviction relief. S.C.
Code Ann. § 17-27-20(A)(4) (2014). Thus, by its plain language, the PCR Act
affords "any person" the ability to seek post-conviction relief on the basis of newly
discovered evidence—not just individuals convicted and sentenced following trial.
Accordingly, we must reject the State's claim that the waiver of trial and admission
of guilt encompassed in a guilty plea necessarily preclude post-conviction relief in
all cases.

We nevertheless acknowledge that a valid guilty plea must be treated as final in the
vast majority of cases. Indeed, "[w]hat is at stake in this phase of the case is not
the integrity of the state convictions obtained on guilty pleas, but whether, years
later, defendants must be permitted to withdraw their pleas, which were perfectly
valid when made, and be given another choice between admitting their guilt and
putting the State to its proof." McMann v. Richardson, 397 U.S. 759, 773 (1970)
(noting the compelling interests in maintaining the finality of guilty-plea
convictions validly obtained). "Furthermore, there must be some consequence
attached to the decision to plead guilty." People v. Schneider, 25 P.3d 755, 761
(Colo. 2001) ("A defendant who voluntarily and knowingly enters a plea accepting
responsibility for the charges is properly held to a higher burden in demonstrating
to the court that newly discovered evidence should allow him to withdraw that
plea.").

Although we find that a guilty plea does not preclude post-conviction relief
following a guilty plea in all circumstances, we nonetheless conclude that the
traditional, five-factor newly discovered evidence test is not the proper test for
analyzing whether a PCR applicant is entitled to relief on the basis of newly
discovered evidence following a guilty plea. As the Supreme Court of Colorado
has noted, in the case of a guilty plea:

      [I]t was not an independent trier of fact that determined the
      defendant's guilt based upon sworn trial testimony—it was the
      defendant who acknowledged his own guilt. Because of that simple
      fact, the trial court handling the postconviction proceeding is
      necessarily in a different position. That court does not have the full
      record of the prior trial, but it does have the defendant's own
      statements of guilt. [The traditional, five-factor newly discovered
      evidence test] presumes that the [PCR] judge is in a position to weigh
      the new testimony against that provided at the prior trial and assess
      whether an acquittal verdict would enter based upon new evidence. In
      the circumstance in which there never was a trial on the charges, the
      [PCR] court is hampered in that assessment.

Id. Indeed, the traditional, newly discovered evidence factors are "difficult, if not
impossible to apply when the moving party pleaded guilty instead of standing
trial." In re Reise, 192 P.3d 949, 954 (Wash. Ct. App. 2008).

Guided by the language of section 17-27-20(A)(4) of the PCR Act, we hold that,
when a PCR applicant seeks relief on the basis of newly discovered evidence
following a guilty plea, relief is appropriate only where the applicant presents
evidence showing that (1) the newly discovered evidence was discovered after the
entry of the plea and, in the exercise of reasonable diligence, could not have been
discovered prior to the entry of the plea; and (2) the newly discovered evidence is
of such a weight and quality that, under the facts and circumstances of that
particular case, the "interest of justice" requires the applicant's guilty plea to be
vacated. In other words, a PCR applicant may successfully disavow his or her
guilty plea only where the interests of justice outweigh the waiver and solemn
admission of guilt encompassed in a plea of guilty and the compelling interests in
maintaining the finality of guilty-plea convictions. In so holding, we caution that it
will be the rare case indeed where the interests of justice will require that a
knowing and voluntary guilty plea be vacated through post-conviction relief on the
basis of newly discovered evidence, for an unconditional guilty plea involving an
admission of guilt and a waiver of trial and all defenses will generally preclude any
subsequent challenge to factual guilt. Cf. Reise, 192 P.3d at 955 (finding a
defendant may withdraw his guilty plea on the basis of newly discovered evidence
only when necessary to correct manifest injustice). Such a determination will not
be resolved in a formulaic manner, but will necessarily be context dependent.

Turning to the facts of this case, we find there is evidence in the record to support
the PCR judge's finding that Respondent could not have discovered Bellamy's
testimony prior to pleading guilty. We, however, find the interests of justice do not
require that Respondent's guilty plea and sentence be vacated and conclude the
PCR judge erred in granting relief. During the thorough plea colloquy,
Respondent admitted having a gun and shooting the victim, specifically waived the
right to present any defense, and testified that he did so freely and voluntarily.
Respondent's PCR testimony reveals that his decision to plead guilty rested on
several considerations: the strength of the State's evidence against him, the relative
weakness of his self-defense claim, and his counseled determination that it was to
his advantage to plead guilty to the lesser charge of manslaughter in order to avoid
going to trial on the indicted offense of murder. Although Respondent might have
pled differently had he known Bellamy could provide eyewitness testimony,
Respondent is bound by his plea and conviction unless he can demonstrate the
interest of justice requires that they be vacated. To grant relief under these
circumstances would undermine the solemn nature of a guilty plea and the finality
that generally attaches to a guilty plea.

"The rule that a plea must be intelligently made to be valid does not require that a
plea be vulnerable to later attack if the defendant did not correctly assess every
relevant factor entering into his decision." Brady v. United States, 397 U.S. 742,
757 (1970). "A defendant is not entitled to withdraw his plea merely because he
discovers long after the plea has been accepted that his calculus misapprehended
the quality of the State's case or the likely penalties attached to alternative courses
of action." Id. Further, the weight and quality of Bellamy's testimony as "evidence
of material facts, not previously presented and heard" is severely undermined
because it pertains not to a theory of self-defense but to one of transferred self-
defense. S.C. Code Ann. § 17-27-20(A)(4) (emphasis added). Specifically,
Bellamy's testimony would tend to show Respondent fired shots at Jig before Jig
could shoot Respondent; however, the victim who died in this case was an
innocent, fifteen-year-old bystander, not Jig. The transferability of intent in a self-
defense claim has not been recognized in South Carolina, and Respondent does not
ask this Court to recognize it now. See State v. Porter, 269 S.C. 618, 622, 239
S.E.2d 641, 643 (1977) (noting the theory of transferred self-defense has not been
accepted in South Carolina); cf State v. Wharton, 381 S.C. 209, 215, 672 S.E.2d
786, 789 (2009) (noting the applicability of the doctrine of transferred intent to
voluntary manslaughter cases remains an unsettled question in South Carolina).
Therefore, Bellamy's testimony does not constitute evidence of material facts
within the language of section 17-27-20(A)(4), and Respondent's guilty plea made
without the knowledge of Bellamy's potential testimony does not constitute an
injustice that would permit Respondent to disavow his guilty plea. Rather, given
the totality of the circumstances of this particular case, we find the interest of
justice is best served by enforcing Respondent's validly entered guilty plea and
upholding Respondent's conviction and sentence.

                                         III.

Because Bellamy's testimony does not constitute evidence of material facts not
previously presented and heard that, in the interest of justice, requires Respondent's
conviction and sentence to be vacated, Respondent is not entitled to relief.
In reversing the court of appeals, we reinstate Respondent's conviction and
sentence pursuant to his guilty plea.


REVERSED.

TOAL, C.J. and HEARN, J., concur. PLEICONES, J., dissenting in a
separate opinion in which BEATTY, J., concurs.
JUSTICE PLEICONES:               While I find great appeal in the majority's
thoughtful "in the interest justice" test, I respectfully dissent as I would adhere to
our traditional test to determine whether a post-conviction relief (PCR) applicant is
entitled to a new trial based on after discovered evidence. Applying our traditional
test, I would affirm the court of appeals as I am bound to uphold the PCR judge's
order when there is evidence in the record to support the decision.

Rather than adopt a new test, I adhere to the five-part inquiry we recently affirmed
to determine whether a PCR applicant is entitled to a new trial based on after
discovered evidence after entering a guilty plea. See McCoy v. State, 401 S.C. 363,
368, 737 S.E.2d 623, 625 n.1 (2013). In my opinion, the "interest of justice" is
served best by applying the same standard to determine if a PCR applicant is
entitled to a new trial, whether the applicant has pled guilty or been convicted by a
jury. I fear the majority's new test may give rise to the unintended consequence of
dissuading criminal defendants from entering guilty pleas, further contributing to
our already crowded General Sessions dockets.

The majority implicitly acknowledges, as I believe it must, that it is adopting a new
test. Under the majority's framework, the key inquiry, one which differs
substantially from the standard affirmed in McCoy, is whether "the newly
discovered evidence is of such a weight and quality that, under the facts and
circumstances of that particular case, the 'interest of justice' requires the applicant's
guilty plea be vacated." Since this is a new rule, were we to adopt it, I would apply
it prospectively. See Talley v. State, 371 S.C. 535, 541, 640 S.E.2d 878, 881
(2007). Further, even were we to apply this new test to Respondent, I would find
the "interest of justice" standard requires a factual determination and is one which
should be made by the PCR judge. Therefore, I would remand to the PCR judge to
determine whether Bellamy's testimony constitutes after discovered evidence under
this new analytical framework.

As I would apply the standard analytical framework to determine whether the PCR
judge properly found Bellamy's testimony constitutes after discovered evidence, I
turn to the five factors affirmed in McCoy. In my view, the following evidence
supports a finding that Bellamy's testimony constitutes after discovered evidence:
(1) Bellamy testified that Jig had a gun, and Respondent shot Jig after Jig gestured
towards Respondent in a manner that suggested Jig was going to pull out his
weapon; (2) Respondent discovered Bellamy's testimony after the entry of his
guilty plea; (3) Respondent could not have discovered the testimony before his
plea because Jig secured Bellamy's silence by threatening Bellamy and his family;
(4) Bellamy's testimony is material because it tends to prove Respondent's claim of
self-defense;7 and (5) Bellamy's testimony is not merely cumulative or impeaching
because no one gave the police a statement as to what happened on the night of
victim's murder. See McCoy, 401 S.C. at 368, 737 S.E.2d at 625 n.1 (outlining the
five factors to determine whether a PCR applicant is entitled to a new trial on the
basis of after discovered evidence). Employing our standard analysis, I find there
is evidence in the record to affirm the court of appeals' decision even though the
PCR judge failed to make explicit findings on the after discovered evidence issue.
See Williams v. State, 363 S.C. 341, 343–44, 611 S.E.2d 232, 233 (2005) (finding
this Court will uphold the PCR judge's findings if there is any evidence of
probative value in the record to support them); Rule 220(c), SCACR (stating this
Court may affirm any ruling, order, decision, or judgment upon any ground
appearing in the record).

I disagree with the majority's finding that Bellamy's testimony is not material on
the basis that we have not recognized "the transferability of intent in a self-defense
claim." In my opinion, if there is any such doctrine as "transferred self-defense," it
has no applicability to this case.8 Whether a defendant harms an unintended victim
while acting in self-defense is irrelevant since the question is whether the

7
    See State v. Dickey, 394 S.C. 491, 499, 716 S.E.2d 97, 101 (2011).
8
    Below is one formulation of the doctrine:


               [O]ne who kills in self-defense does so without the mens
               rea that otherwise would render him culpable of the
               homicide. . . .


               However, if A had no criminal intent with respect to B,
               as where A is exercising a lawful right of self-defense,
               [no criminal intent] could exist as to C. It follows, then,
               that A in shooting C has not committed a criminal act,
               the essential [sic] of a mens rea being impossible of
               proof. The inquiry must be whether the killing would
               have been justifiable if the accused had killed the person
               whom he intended to kill, as the unintended act derives
               its character from the intended.

State v. Clifton, 290 N.E.2d 921, 923 (Ohio Ct. App. 1972).
defendant's state of mind entitled him to react as he did. See, e.g., Dickey, 394 S.C.
at 499, 716 S.E.2d at 101. On the other hand, transferred intent permits a jury to
find a defendant criminally responsible even though the defendant did not have the
"intent" to harm the victim. See State v. Fennell, 340 S.C. 266, 271 - 72, 531
S.E.2d 512, 515 (2000) (explaining transferred intent as a legal fiction by which a
jury may convict a defendant even though he did not act with the requisite mens
rea towards an unintended victim). Thus, a defendant need not have a specific
"intent" in order to assert a viable claim of self-defense; instead, the only question
is whether Bellamy's testimony would have entitled him to a charge on self-
defense. Although the answer to this question is undeniably close, and is one that
underscores the important gatekeeping function of our PCR judges, I am
constrained by our standard of review. See Williams, 363 S.C. at 343–44, 611
S.E.2d at 233.

Because I would adhere to the five factor test set forth in McCoy, and because I
find there is probative evidence in the record to support the PCR judge's findings, I
would affirm the court of appeals.

BEATTY, J., concurs.
