           THE STATE OF SOUTH CAROLINA 

                In The Supreme Court 


   Ruben Ramirez, Petitioner,

   v.

   State of South Carolina, Respondent.

   Appellate Case No. 2015-002063


ON WRIT OF CERTIORARI TO THE COURT OF APPEALS



             Appeal From Greenville County 

    The Honorable G. Edward Welmaker, Post-Conviction 

                       Relief Judge 



                    Opinion No. 27696 

        Heard November 7, 2016 – Filed January 5, 2017 



    AFFIRMED IN PART AND REVERSED IN PART


   Appellate Defender Wanda H. Carter, of Columbia, for
   Petitioner.

   Attorney General Alan McCrory Wilson, Assistant
   Attorney General James Clayton Mitchell, III, and Senior
   Assistant Attorney General Karen Christine Ratigan, all
   of Columbia, for Respondent.
JUSTICE HEARN: The issue before us is whether a severely mentally retarded
individual should be afforded post-conviction relief (PCR) where his plea counsel
failed to request an independent competency evaluation prior to his guilty plea.
The PCR court denied relief, finding plea counsel was not deficient nor was
Ramirez prejudiced by counsel's representation. Although the court of appeals
disagreed that plea counsel was not deficient, the court affirmed based on its
application of the "any evidence" standard to the PCR court's prejudice finding.
We now affirm in part and reverse in part, upholding the court of appeals' finding
of deficiency but reversing its finding as to lack of prejudice to Ramirez.

                 FACTUAL/PROCEDURAL BACKGROUND
       Ramirez was sixteen years old when he was indicted for assault and battery
with intent to kill, kidnapping, first-degree criminal sexual conduct with a minor,
first-degree burglary, and lewd act upon a child. Upon an order from the circuit
judge, Ramirez was sent to the Department of Mental Health for an evaluation of
his competency to stand trial.1

      Dr. Mayank H. Dalal conducted the examination, basing his finding of
competency on an hour and a half forensic interview with Ramirez and a review of
victim statements, police reports, photographs, and Department of Juvenile Justice
(DJJ) records. According to Dr. Dalal's report, Ramirez denied having any history
of medical or psychological problems. Additionally, Ramirez indicated he was
only in the eighth grade and received mostly C's and D's. Dr. Dalal also noted

1
  The record does not reflect why the circuit judge ordered the examination.
However, we note Section 44-23-410(A) of the South Carolina Code (Supp. 2016)
states:
        (A) Whenever a judge of the circuit court . . . has reason to believe
        that a person on trial before him . . . is not fit to stand trial because the
        person lacks the capacity to understand the proceedings against him or
        to assist in his own defense as a result of a lack of mental capacity, the
        judge shall:
            (1) order examination of the person by two examiners designated
                by the Department of Mental Health if the person is suspected
                of having a mental illness or . . .
            (2) order the person committed for examination and observation to
                an appropriate facility at the Department of Mental Health . . . .
Ramirez exhibited certain speech difficulties, had difficulty reading the words
"solicitor," "evaluation," and "competency," and struggled to remember the name
of his attorney. Moreover, despite acknowledging the serious nature of the charges
against him, Ramirez believed he was only facing "up to a few years in [DJJ]."2
Nevertheless, Dr. Dalal concluded Ramirez had "sufficient factual and rational
understanding of the charges against him," and was therefore competent to stand
trial. In reaching this conclusion, Dr. Dalal did not review any collateral sources,
nor did he perform any psychological testing or consider a psychological
diagnosis.

       Following his review of Dr. Dalal's report, plea counsel requested that
Ramirez undergo a psychological examination with Dr. Stephen M. Gedo.
According to plea counsel, he sought a second opinion because he was concerned
Ramirez did not fully understand the gravity of his offenses or the charges he
faced. Dr. Gedo met with Ramirez five times, with each appointment lasting
between three and four hours. In addition to a clinical interview, Dr. Gedo based
his conclusions on a number of psychological tests, Ramirez's medical records, and
collateral interviews conducted with Ramirez's family to obtain historical
information Ramirez may not have been able to accurately convey due to his
intellectual limitations. In particular, Dr. Gedo noted Ramirez had been mentally
retarded from birth, did not begin speaking until he was seven years old, was
diagnosed with Attention Deficit-Hyperactivity Disorder (ADHD) when he was
nine, and had only completed eighth grade by the time he was sixteen.

      Based on his observations, Dr. Gedo concluded Ramirez had poor judgment
and an impaired ability to regulate his impulses. Dr. Gedo also found Ramirez to
be highly malleable, easily confused, and suffering limitations across the entire
range of cognitive function, resulting in severely limited language and reading
comprehension skills. Furthermore, Dr. Gedo determined Ramirez had a general
IQ level between thirty-one and forty-four, falling within the range of Severe
Mental Retardation,3 and was functioning at the intellectual level of a four to seven

2
  In fact, Ramirez had been charged as an adult, and was facing anywhere from
fifteen years to life without parole in the Department of Corrections.
3
   For reference, "an IQ of approximately [seventy] or below" indicates
"[s]ignificantly subaverage intellectual functioning." AM. PSYCHIATRIC ASS'N,
DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 49 (4th ed. 2000)
[hereinafter DSM-IV].
year old child. In conclusion, Dr. Gedo diagnosed Ramirez with an adjustment
disorder with mixed disturbance of emotions and conduct, severe mental
retardation, and a Global Assessment of Functioning (GAF) score of thirty-five out
of one hundred.4 However, Dr. Gedo rendered no opinion as to Ramirez's
competency to stand trial.

      Ultimately, Ramirez pled guilty but mentally ill to all the charges. Both the
Dalal evaluation and the Gedo report were submitted into evidence on the issue of
whether Ramirez was mentally ill at the time the crimes were committed, but there
was no request for a further competency evaluation. The circuit judge accepted
Ramirez's plea, noting his "IQ level [was] as low as any [the judge had] ever seen."
Ramirez was sentenced to concurrent twenty-year terms for all charges, except the
lewd act on a minor for which the circuit judge imposed a consecutive fifteen year
sentence suspended upon five years' probation for mental health counseling.

      Ramirez did not appeal his conviction, but applied for PCR, arguing his plea
counsel was deficient in failing to obtain an independent mental examination. At
the PCR hearing, plea counsel testified that Ramirez was very naïve and he
questioned whether Ramirez fully understood what was going on prior to and at the
plea hearing. Plea counsel further admitted he should have moved to have
Ramirez's competency reevaluated after comparing the Gedo and Dalal
evaluations; however, he gave no explanation for his failure to do so. In addition
to plea counsel's testimony, Ramirez presented the Dalal and Gedo reports and a
few pages from the DSM-IV.



4
  The GAF score is a "judgment of the individual's overall level of functioning."
DSM-IV, supra note 5, at 32. "The GAF scale is divided into [ten] ranges of
functioning," and each range has two components: symptom severity and
functioning. Id. "The GAF rating is within a particular decile if either the
symptom severity or the level of functioning falls within the range." Id. (emphasis
in original). However, "in situations where the individual's symptom severity and
level of functioning are discordant, the final GAF rating always reflects the worse
of the two." Id. at 33. Ramirez's GAF score of thirty-five indicates he has "major
impairment in several areas, such as work or school, family relations, judgment,
thinking, or mood (e.g., . . . child frequently beats up younger children, is defiant at
home, and is failing at school)." Id. at 34.
       The PCR court dismissed Ramirez's application, finding plea counsel was
not deficient and Ramirez was not prejudiced by counsel's representation. On
review, the court of appeals found the record established at least a reasonable
probability Ramirez was incompetent at the time of his plea and held the PCR
court's finding of no deficiency was unsupported by the evidence. Ramirez v.
State, 413 S.C. 351, 369–73, 776 S.E.2d 101, 111–13 (Ct. App. 2015).
Nevertheless, the court held it was constrained by the "any evidence" standard to
affirm the PCR court's order because the Dalal report was probative evidence
supporting the PCR court's finding as to prejudice. Id. at 372, 776 S.E.2d at 113.

      This Court granted certiorari to review the court of appeals.

                                ISSUE PRESENTED
      Did the court of appeals err in applying the "any evidence" standard to
affirm the PCR court's finding that Ramirez was not prejudiced as a result of plea
counsel's failure to request an additional competency evaluation?

                             STANDARD OF REVIEW
      In reviewing a PCR court's decision, this Court will uphold the PCR court's
findings if there is any evidence of probative value to support them. Suber v. State,
371 S.C. 554, 558, 640 S.E.2d 884, 886 (2007). However, if the PCR court's
conclusions are controlled by an error of law or are unsupported by the evidence,
this Court must reverse the decision. Edwards v. State, 392 S.C. 449, 455, 710
S.E.2d 60, 64 (2011).

       When alleging ineffective assistance of counsel, a PCR applicant must
satisfy the two-prong Strickland test. Strickland v. Washington, 466 U.S. 668, 687
(1984). First, the applicant must establish plea counsel's performance was
deficient. Edwards, 392 S.C. at 456, 710 S.E.2d at 64. Second, generally the
applicant must demonstrate plea counsel's "deficient performance prejudiced the
[applicant] to the extent that 'there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different.'"
Cherry v. State, 300 S.C. 115, 117–18, 386 S.E.2d 624, 625 (1989) (quoting
Strickland, 466 U.S. at 694). But see Sellner v. State, 416 S.C. 606, 612, 787
S.E.2d 525, 528 (2016) (holding petitioner was entitled to relief without needing to
establish prejudice where plea counsel advised petitioner to plead guilty to an
offense unsupported by the facts); Jordan v. State, 406 S.C. 443, 449, 752 S.E.2d
538, 541 (2013) (quoting Staggs v. State, 372 S.C. 549, 551–52, 643 S.E.2d 690,
692 (2007)) ("'[A] defendant who shows that a conflict of interest actually affected
the adequacy of his representation need not demonstrate prejudice to obtain [post-
conviction] relief.'"); Lomax v. State, 379 S.C. 93, 103, 665 S.E.2d 164, 169 (2008)
(holding once petitioner demonstrated an actual conflict of interest she did not
have to show prejudice, but was entitled to PCR).

       When a PCR applicant raises issues of competency in the context of a plea
proceeding, the two-prong Strickland analysis still applies; however, because of
the nature of the claim, proof of deficiency of counsel is intertwined with
prejudice. Specifically, when establishing Strickland prejudice in the context of
plea counsel's failure to request a mental competency evaluation, "the [applicant]
need only show a 'reasonable probability' that he was . . . incompetent at the time
of the plea." Jeter v. State, 308 S.C. 230, 233, 417 S.E.2d 594, 596 (1992); see
also Matthews v. State, 358 S.C. 456, 458–60, 596 S.E.2d 49, 50–51 (2004)
(expanding the reasonable probability standard as the burden for proving both the
deficiency of counsel and the prejudice prongs).

                                LAW/ANALYSIS
      Ramirez argues the court of appeals erred in affirming the PCR court's order
pursuant to the "any evidence" standard of review. Specifically, Ramirez contends
he presented sufficient evidence at the PCR hearing to establish a reasonable
probability that he was incompetent at the time of his plea, and the PCR court erred
in denying his application for relief.5 Therefore, Ramirez argues the court of




5
  Ramirez attempts to bolster this argument by further asserting that the Dalal
report was incomplete and lacked probative value to support the PCR court's
conclusion with respect to prejudice. Thus, Ramirez contends the court of appeals
misapplied the "any evidence" standard by relying on improper evidence to affirm
the PCR court's order. We disagree with this portion of Ramirez's argument and
find that, had an "any evidence" analysis been appropriate in this case, Dr. Dalal's
evaluation would have been probative evidence to support the PCR court's order on
the issue of prejudice.
appeals should have reversed without performing an "any evidence" analysis. We
agree.6

       The court of appeals held Ramirez's plea counsel was deficient in failing to
obtain an independent competency evaluation, finding that the evidence did not
support the PCR court's finding of no deficiency.7 Ramirez, 413 S.C. at 369–70,
776 S.E.2d at 111. In particular, the court noted the Gedo report and plea counsel's
own awareness of Ramirez's communicative and intellectual limitations should
have prompted plea counsel to seek an additional competency examination. Id.
Additionally, the court of appeals held plea counsel's decision to pursue pleas of
guilty but mentally ill, as opposed to requesting another competency evaluation,
was not a valid strategy. Id. at 370, 776 S.E.2d at 111–12. Moreover, the court
held "there was at least a reasonable probability Ramirez was incompetent at the
time of his pleas," based upon Dr. Gedo's report and plea counsel's testimony at the
PCR hearing. Id. at 371, 776 S.E.2d at 112 (emphasis added).

      Once a PCR applicant has established his counsel was deficient in failing to
obtain a mental competency evaluation, he is entitled to relief if he demonstrates a
reasonable probability that he was incompetent at the time he pled guilty. Jeter,
308 S.C. at 233, 417 S.E.2d at 596; Matthews, 385 S.C. at 459, 596 S.E.2d at 51;
see also Sellner, 416 S.C. at 611, 787 S.E.2d at 527 (holding a PCR applicant
demonstrates prejudice by showing "there is a reasonable probability that, but for
counsel's errors, the defendant would not have pled guilty") (internal quotations



6
  Initially we note there are no findings of fact contained within the PCR court's
order to support its conclusion that Ramirez was not prejudiced by plea counsel's
representation. As such, the court of appeals erred in upholding the prejudice
finding under the "any evidence" standard of review. See, e.g., Marlar v. State,
375 S.C. 407, 408–09, 653 S.E.2d 266, 266 (2007) ("[T]he PCR judge must make
specific findings of fact and state expressly the conclusions of law relating to each
issue presented. The failure to specifically rule on the issues precludes appellate
review of the issues."). However, Ramirez has not argued this issue on appeal.
7
  Since neither party appealed the court's holding on this issue, it is the law of the
case. Hudson ex rel. Hudson v. Lancaster Convalescent Ctr., 407 S.C. 112, 119–
20, 754 S.E.2d 486, 490 (2014) (holding that if a party fails to timely appeal a
ruling by a lower court, that ruling becomes the law of the case).
omitted). "A reasonable probability is a probability sufficient to undermine
confidence in the outcome." Gallman v. State, 307 S.C. 273, 276, 414 S.E.2d 780,
782 (1992).

       Plea counsel was clearly on notice, not only from the Gedo report, but from
his own interactions with Ramirez, that Ramirez suffered from severe mental
retardation, was functioning at the level of a four- to seven-year-old, and had
difficulty in comprehending the legal proceedings. Accordingly, we affirm the
court of appeals' holding that Ramirez's plea counsel was deficient in not
requesting an additional competency evaluation.

       However, the court of appeals erred in affirming the PCR court's finding of
no prejudice under the "any evidence" standard. As the court of appeals correctly
noted, Dr. Gedo's report and plea counsel's testimony at the PCR hearing clearly
established a reasonable, if not strong, likelihood that Ramirez was incompetent to
plead guilty. Our opinions in Jeter and Matthews make it clear that when
competency to enter a plea is at issue, a PCR applicant need only show there was a
reasonable probability he was incompetent at the time of his plea. 308 S.C. at 233,
417 S.E.2d at 596; 385 S.C. at 459, 596 S.E.2d at 51. Once such a reasonable
probability has been established, prejudice is also demonstrated. See Matthews,
385 S.C. at 459–60, 596 S.E.2d at 51. Therefore, since Ramirez has satisfied both
prongs of the Strickland test, he is entitled to relief.

                                 CONCLUSION
      We affirm the court of appeals' finding of deficient performance by plea
counsel and reverse its holding that Ramirez was not prejudiced by that deficiency.
Accordingly, Ramirez's plea is vacated and this matter is remanded to the court of
general sessions.



BEATTY, C.J., KITTREDGE and FEW, JJ., concur. Acting Justice Costa M.
Pleicones, dissenting in a separate opinion.
ACTING JUSTICE PLEICONES: I regret that I am unable to join the majority
opinion as I believe that our scope of review requires that we uphold the decision
of the Court of Appeals' majority: Dr. Dalal's finding that petitioner was
competent is evidence of probative value that supports the PCR judge's finding that
petitioner was not prejudiced by counsel's failure to obtain an independent
competency evaluation. Jeter v. State, 308 S.C. 230, 417 S.E.2d 594 (1992). In my
opinion, however, it is shocking to the universal sense of justice to allow this
severely mentally disabled individual's plea to stand, and I believe that were relief
sought pursuant to Butler v. State, 302 S.C. 466, 397 S.E.2d 87 (1990), this Court
would likely issue a writ of habeas corpus.



In light of our scope of review, I reluctantly dissent.
