S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Kenneth H. Brown, Respondent,
v.
State of South Carolina, Petitioner.
ON WRIT OF CERTIORARI
Appeal From Orangeburg County
Daniel E. Martin, Sr., Post-Conviction Judge
Paul M. Burch, Trial Judge
Opinion No. 24861
Submitted October 21, 1998 - Filed November 30, 1998
REVERSED
Robert Pachak, of S.C. Office of Appellate Defense,
of Columbia, for respondent.
Attorney General Charles M. Condon, Chief Deputy
Attorney General John W. McIntosh, Assistant
Deputy Attorney General Teresa A. Knox, all of
Columbia, and Assistant Attorney General Barbara
M. Tiffin, of Greenville, for petitioner.
WALLER, A.J.: We granted a writ of certiorari to review the grant of Post-Conviction Relief
(PCR) to Respondent, Brown. We reverse.
FACTS
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BROWN v. STATE
Brown was convicted of distribution of cocaine and distribution of
cocaine within one-half mile of a school and sentenced to 30 years and 5
years, respectively. The indictment setting forth the proximity charge
indicates Brown distributed cocaine within one-half mile of the grounds of
Belleville Middle School. At PCR, Brown contended his trial counsel was
ineffective in failing to measure the distance between Belleville Middle School
and the location at which he was alleged to have made the sale, 2190 Russell
Street. Brown contended he had "clocked" the mileage in his vehicle and the
distance was approximately 1 mile on his odometer reading. Two other
witnesses also testified at PCR that they believed Belleville School was more
than one mile from 2190 Russell Street.1 Brown's trial attorney testified at
PCR that he sent his investigator to determine the proximity of the school,
and the investigator reported to him that 2190 Russell Street was within one-
half mile of the school. It was counsel's belief that proximity was not
measured by odometer readings but was, rather, measured "as the crow flies"
in a straight line.
The PCR court found there was "a substantial question as to the
distance between 2190 Russell Street and the Belleview Middle School."
Accordingly, the court concluded counsel was ineffective in failing to
substantiate the difference between the school and the residence, and that his
deficiency had prejudiced the defense.
ISSUE
Did the PCR court err in finding counsel ineffective?
DISCUSSION
S.C. Code Ann.§ 44-53-445(A) (Supp. 1997) provides:
It is a separate criminal offense for a person to distribute, sell,
purchase, manufacture, or to unlawfully possess with intent to
distribute, a controlled substance while in, on, or within a
one-half mile radius of the grounds of a public or private
elementary, middle, or secondary school; a public playground or
1One of the witnesses, Brunson Rush, testified "I think it's more than
one mile" from the school to 2190 Russell Street. The other witness, Brown's
father, testified he had checked it "in general" by the odometer and thought
the distance was a bit over a mile, but that he had not made a thorough check.
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BROWN v. STATE
park; a public vocational or trade school or technical educational
center; or a public or private college or university.
"Radius" is defined as "a straight line drawn from the center of a circle or
sphere to any point on its periphery..." NEW WEBSTER'S DICTIONARY
AND THESAURUS, 825 (1993)(Emphasis supplied). Courts addressing the
issue have uniformly held proximity is measured in a straight line, or "as the
crow flies." See Jackson v. State, 582 So.2d 598 (Ala. App. 1991)(shortest
distance between two points, i.e. a "straight line," refers to "as the crow
flies"); Howard v. State, 591 So. 2d 1067 (Fla. App. 1991)(distance from school
is measured, not as the car drives, but "as the crow flies"); Commonwealth
v. Spano, 605 N.E.2d 1241 (Mass. 1993)(holding distance is measured in a
straight line); State v. Ogar, 551 A.2d 1037 (N.J. Super. 1989)(distance
measured "as the crow flies" from outermost boundaries of school grounds);
State v. Vigh, 871P.2d 1030 (Utah App. 1994)(distance measured in a
straight line rather than by pedestrian travel route); State v. Wimbs, 874
P.2d 193 (Wash. App. 1994). We agree with these courts that the only way
to uniformly measure the distance between a school, church or other
protected location and the location where illegal drugs were sold is to do so
in a straight line.
In a post-conviction proceeding, the burden is on the applicant to prove
the allegations in his application. Butler v. State, 286 S.C. 441, 334 S.E.2d
813 (1985), cert. denied, 474 U.S. 1094, 106 S.Ct. 869, 88 L.Ed.2d 908 (1986).
As to allegations of ineffective assistance of counsel, the applicant must show
his counsel's performance fell below an objective standard of reasonableness,
and but for counsel's errors, there is a reasonable probability the result at
trial would have been different. Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984); Johnson v. State, 325 S.C. 182, 480 S.E.2d
733 (1997). A reasonable probability is a probability sufficient to undermine
confidence in the outcome of the trial. Johnson v. State, supra. This Court
must affirm the findings of the PCR judge if they are supported by any
evidence in the record. Cherry v. State, 300 S.C. 115, 386 S.E.2d 624 (1989).
Here, Brown failed to offer any evidence at PCR as to the distance
between Belleville School and 2190 Russell Street as measured in a straight
line. As there is no evidence the distance as measured in a straight line
exceeds one-half mile, the PCR court's findings are not supported by any
evidence. Accordingly, the judgment below is
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BROWN v. STATE
REVERSED.2
FINNEY, C.J., TOAL, MOORE and BURNETT, JJ., concur.
2The PCR court also ruled Brown was entitled to a new trial on the
distribution charge as it could not determine the impact of the proximity
charge on the distribution conviction. As Brown is not entitled to a new trial
on the proximity charge, he is not entitled to a new trial on the distribution
charge. The PCR court's ruling on this issue is also reversed.
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