THE STATE OF SOUTH CAROLINA

In The Supreme Court

Herbert Wayne Odom, Petitioner,

v.

State of South Carolina, Respondent.

ON WRIT OF CERTIORARI

Appeal From Sumter County

David F. McInnis, Trial Judge

M. Duane Shuler, Post-Conviction Judge

Opinion No. 25015

Submitted September 22, 1999 - Filed November 15, 1999

REVERSED AND REMANDED

Assistant Appellate Defender M. Anne Pearce, of South

Carolina Office of Appellate Defense, of Columbia, for

petitioner.

Attorney General Charles M. Condon, Chief Deputy

Attorney General John W. McIntosh, Assistant Deputy

Attorney General Teresa A. Knox, and Assistant

Attorney General Howard L. Steinberg, all of Columbia,

for respondent.

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TOAL, A. J.: Herbert Wayne Odom ("Odom") appeals the post-conviction

relief court's order of dismissal. We reverse and remand.

FACTUAL/PROCEDURAL BACKGROUND

On August 31, 1993, Odom was arrested for distributing marijuana to an

undercover officer within a half mile from the Busy Bee Day Care Center in

Sumter County. A jury convicted Odom of one count of distribution on December

19 1993. The presiding judge imposed a five year sentence and a fine of $5,000.

On December 3, 1993, Odom pled guilty to a second count of distribution and the

presiding judge imposed a ten year, concurrent sentence for a third offense.

Legal counsel represented Odom at both the trial and guilty plea. Odom did not

directly appeal either conviction.

On December 18, 1995, Odom filed a pro se post-conviction relief ("PCR")

application alleging ineffective assistance of counsel. The PCR judge summarily

dismissed Odom's application for failing to file within the one-year statute of

limitations 1.

Odom's first application for PCR was dismissed prior to the filing of this

Court's opinion in Peloquin on April 15, 1996. In Peloquin this Court held that

PCR applicants convicted before July 1, 1995, the effective date of S.C. Code Ann.

§ 17-27-45 (A), should be allowed to file an application for PCR within one year

after the effective date of the statute. Peloquin, 321 S.C. at 469, 469 S.E.2d at

606. If Odom had appealed the first PCR order dismissing his application, this

Court would have reversed and remanded for an evidentiary hearing pursuant to

Peloquin because Odom was convicted before July 1, 1995, and he filed his first

PCR application before July 1, 1996.

On June 18, 1997, Odom filed a secondpro se PCR application alleging, (1)

ineffective assistance of counsel; and (2) that his first PCR application was

"must be filed within one year after the entry of a judgment of conviction or

within one year after the sending of the remittitur to the lower court from an

appeal or the filing of the final decision upon an appeal, whichever is later."

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erroneously dismissed.2 Odom argued he should be permitted to appeal the

dismissal of his first PCR application pursuant to Austin v. State, 305 S.C. 453,

409 S.E.2d 395 (1991). Under Austin, a defendant can appeal a denial of a PCR

application after the statute of limitations has expired if the defendant either

requested and was denied an opportunity to seek appellate review, or did not

knowingly and intelligently waive the right to appeal. Id; see also King v. State,

308 S.C. 348, 417 S.E.2d 868 (1992).

The PCR judge summarily dismissed Odom's second PCR application for

failure to comply with the one-year statute of limitations as mandated by S.C.

Code Ann. § 17-27-45(A) (Supp. 1998) and Peloquin v. State, 321 S.C. 468, 469

S.E.2d 606 (1996). A chronology of significant events in this case is as follows:

(A) December 1, 1993 and December 3, 1993, Odom was

convicted of the drug offenses and did not appeal;

(B) December 18, 1995, Odom filed his first PCR application;

(C) February 9, 1996, the PCR judge summarily dismissed Odom's

first PCR application;

(D) June 18, 1997, Odom filed his second application for PCR;

(E) August 25, 1997, the PCR judge summarily dismissed Odom's

second PCR application;

(F) September 12, 1997, Odom appealed the second summary

dismissal.

Petitioner's application was filed within a year of the

effective date of the statue [sic] and the PCR judge

therefore erred in dismissing petitioneres [sic]

application. Accordingly, the order of the PCR judge

should be reversed and this matter remanded for

further proceedings.

This issue, however, is not properly preserved for appeal. Only final

judgments or decisions may be reviewed by this Court in PCR actions. S.C. Code

Ann. § 17-27-100 (1985); Rule 71.1 (f), SCRCP. The PCR judge did not address

this issue in his order and Odom did not Me a Rule 59, SCRCP motion to obtain a

ruling on this issue.

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ISSUES

(1) Does Austin v. State, 305 S.C. 453, 409 S.E.2d 395 (1991)

apply when a post-conviction relief applicant was never

appointed counsel?

(2) Does the statute of limitations for post-conviction relief

applications, S.C. Code Ann. § 17-27-45(A) (Supp. 1998), apply

to applications filed pursuant to Austin v. State?

LAW/ANALYSIS

1. AUSTIN v. STATE

Odom argues the PCR judge erred by summarily dismissing his second

PCR application which asserted a valid claim to an evidentiary hearing on his

right to appellate review under Austin v. State. We agree.

All applicants are entitled to a full and fair opportunity to present claims in

one PCR application. Successive PCR applications and appeals are generally

disfavored because they allow an applicant to receive more than "one bite at the

apple as it were." Matthews v. Evatt, 105 F.3d 907, 916 (1997) (quoting Gamble

v. State, 298 S.C. 176, 379 S.E.2d 118, 119 (t989)). A successive PCR application

is one that raises grounds not raised in a prior application, raises grounds

previously heard and determined, or raises grounds waived in prior proceedings.

Carter v. State, 293 S.C. 528, 362 S.E.2d 20 (1987); see S.C. Code Ann. § 17-27-90

(1976 & Supp. 1997). In order to be entitled to a successive PCR application, the

applicant must establish that the grounds raised in the subsequent application

could not have been raised in the previous application. Tilley v. State, 334 S.C.

24, 511 S.E.2d 689 (1999). Additionally, successive PCR applications are

permitted in rare procedural circumstances. See, e.g., Case v. State, 277 S.C.

4741289 S.E.2d 413 (1982) (allowing a successive PCR application where the

applicant's first PCR application was dismissed without assistance of legal

counsel and without a hearing); Carter v. State, 293 S.C. 528, 362 S.E.2d 20

(1987) (permitting a successive application where the applicant did not have PCR

counsel that differed from his trial counsel).

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This Court has allowed successive PCR applications where the applicant

has been denied complete access to the appellate process. Austin v. State, 305

S.C. 453, 409 S.E.2d 395 (1991). Under the PCR rules, an applicant is entitled to

a full adjudication on the merits of the original petition, or "one bite at the

apple." Aice v. State, 305 S.C. 448, 452, 409 S.E.2d 392, 395 (1991). This "bite

includes an applicant's right to appeal the denial of a PCR application, and the

right to assistance of counsel in that appeal. See Aice , 305 S.C. at 448, 409

S.E.2d at 392.

An Austin appeal is used when an applicant is prevented from seeking

appellate review of a denial of his or her PCR application, such as when an

attorney fails to seek timely review. See Aice, 305 S.C. at 448, 409 S.E.2d at 392;

Hope v. State, 328 S.C. 78, 492 S.E.2d 76 n. 1 (1997) (permitting an Austin

appeal where original PCR counsel failed to appeal from the first denial of PCR).

In Austin, the defendant never received a full procedural "bite at the apple"

because he was prevented from seeking any review of the denial of his PCR

application. Aice, 305 S.C. at 452, 409 S.E.2d at 395. As a method of effectuating

the purpose of Rule 7 1. 1 (g) SCRCP 3 and enforcing Austin's entitlement to a PCR

proceeding, this Court held Austin could attack his PCR counsel as ineffective by

a petition for a writ of certiorari. Id.

A PCR applicant is entitled to an Austin appeal if the PCR judge

affirmatively finds either: (1) the applicant requested and was denied an

opportunity to seek appellate review; or (2) the right to appellate review of a

previous PCR order was not knowingly and intelligently waived. See King, 308

S.C. at 348, 417 S.E.2d at 868. If the PCR court finds an applicant was denied his

right to appeal, the applicant can petition for certiorari and this Court will review

whether the petitioner was prejudiced by the failure to obtain appellate review.

Id; see King, 308 S.C. at 349, 417 S.E.2d at 868 (outlining the procedure used to

If an applicant desires to appeal the trial court's

decision and contends he is indigent, the trial court, if

satisfied that he is indigent, shall appoint counsel for

the appeal. Such counsel may be the same counsel who

represented the applicant in the trial court on his

application. If, for good cause shown, appointed

counsel is permitted to withdraw, the trial court shall

appoint new counsel.

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seek review pursuant to Austin v. State); Wicker v. State, 310 S.C. 8,425

S.E.2d 25 (1992).

In this case, Odom never received a complete "bite at the apple" because

both of his PCR applications were summarily dismissed before he was appointed

legal counsel. An applicant has a right to an appellate counsel's assistance in

seeking review of the denial of PCR. See Austin, 305 S.C. at 454, 409 S.E.2d at

396; Rule 71.1(g), SCRCP. Under the PCR rules, a court will appoint an attorney

to a PCR applicant if: (1) an evidentiary hearing is required; or (2) the applicant

is indigent and wants to file an appeal. See Whitehead v. State, 310 S.C. 532,

426 S.E.2d 315 (1992); Rule 71.1 (d),(g), SCRCP. Since Odom filed both his PCR

applications pro se, he never received the benefit of an attorney's advice. The

record does not indicate whether Odom was advised of his right to appeal or of

the statute of limitation for an appeal. In order to effectuate an applicant's right

to appeal a PCR dismissal, this Court will require PCR judges to advise pro se

applicants of both their right to appeal, and also their right to appellate counsel

when their PCR applications are summarily dismissed.

Because Odom was entitled to the assistance of appellate counsel during

PCR, we reverse the PCR judge's order of dismissal and remand for an

evidentiary hearing on the issue of whether Odom knowingly and intelligently

waived his right to appellate counsel. Austin, 305 S.C. at 454, 409 S.E.2d at 396.

Odom will be entitled to an Austin appeal if it is determined that he did not

knowingly and intelligently waive his right to appellate counsel. Id. Odom can

then petition for certiorari and this Court will review whether he was prejudiced

by his failure to obtain review of a meritorious issue. Id.

H. STATUTE OF LIMITATIONS

The one-year statute of limitations for PCR applications is not applicable to

appeals filed pursuant to Austin v. State. Under S.C. Code Ann. § 17-2 7-45 (A)

(Supp. 1998) an application for relief must be filed "within one year after the

entry of a judgment or conviction or within one year after the sending of the

remittitur to the lower court from an appeal or the Ming of the final decision upon

an appeal, whichever is later." Austin appeals are considered "belated

appeals" and are used to rectify unjust procedural defects, such as when an

attorney does not Me a timely appeal. See, e.g., Hope v. State, 328 S.C. 78, 492

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S.E.2d 76 n. 1 (1997) (permitting a belated appeal pursuant to Austin in 1992

from a denial of a PCR application in 1989).

Odom's Austin appeal is attacking the PCR procedure used in his case,

not the merits of his sentence so the one-year statute of limitations, S.C. Code

Ann. § 17-27-45(A), is not applicable. In this case, Odom claims that he was

denied his right to appeal which was a procedural error preventing his fair "bite"

at the apple. Austin's policy would be frustrated if the one-year statute of

limitation applied to procedural errors made by the PCR courts. Austin is

intended to act as an applicant's final safeguard against unjust procedural

errors, even errors in the application of the statute of limitations. In the instant

case, if we applied the statute of limitations to Odom's Austin appeal, this Court

would be holding a pro se Austin applicant to a one-year statute of limitations

even though the only reason he is filing an Austin appeal is because he was

unaware and uninformed of the statue of limitations that applied to his original

PCR application.

CONCLUSION

We REVERSE the PCR judge's order and REMAND for a new PCR

hearing. We also recommend that counsel be appointed to Odom for the new

PCR hearing.

Finney, C.J., Moore, Waller and Burnett, J.J.., concur.

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