Justice Pleicones and Judicial Restraint

The more opinions I read from Justice Pleicones the more I like him. Take, for example, his dissenting opinion yesterday in Porter v. State, a PCR case. The PCR judge held that trial counsel was ineffective for failing to file a Brady motion. The evidence Porter claimed his trial counsel failed to obtain through a Brady motion consists of the fact that the witness did not identify Porter at the crime scene. The Supreme Court, however, held that this information was immaterial in light of the subsequent identification of Porter in a photographic line-up.

Pleicones offered this dissent:

The first question is not whether the PCR court erred in finding counsel's performance deficient in failing to make a Brady request, but rather there is any evidentiary support in the record for the finding. Cherry, supra. While I may not have reached the same conclusion as the PCR judge regarding counsel's performance, I cannot say it lacks evidentiary support especially in light of trial counsel’s testimony that he did no independent investigation but instead relied solely on information supplied by law enforcement and by the solicitor's office.

The second question is whether the record contains any evidence of probative value to support the PCR judge's finding that Porter established prejudice as the result of this deficient performance, that is, evidence that but for counsel's deficient performance Porter would not have pled guilty but would have insisted on going to trial. In my opinion, Porter's testimony that he would not have pled had he had all relevant information is sufficient to uphold the PCR judge's prejudice finding. E.g., Solomon v. State, 313 S.C. 526, 443 S.E.2d 540 (1994) (great appellate deference to PCR judge's credibility findings required Court to uphold judge's determination even where testimony at PCR hearing flatly contradicted by trial record).

While I may not have made the same findings as did the PCR judge on the failure to file a Brady motion claim, under our limited scope of review these findings should be upheld. Cherry, supra. I therefore respectfully dissent, and would affirm the grant of PCR to Porter