The South Carolina Supreme Court has granted a post-conviction relief evidentiary hearing to Anthony Sanders five years after he was found guilty of murdering three people.
On June 17, the Supreme Court unanimously reversed a decision by the state’s Post-Conviction Relief Court in Dorchester County to dismiss his petition for a hearing to determine whether he received ineffective assistance of counsel.
In March 2010, Sanders was convicted in the 2007 killing of Diane Grant; her 20-year-old son, Jatavius Devore; and her 15-year-old daughter, Deanna Devore.
He signed an agreement to waive his right to challenge the counsel he received but, according to court documents, is now arguing he did so unknowingly and involuntarily “because his lawyers did not adequately apprise him of the rights he was waiving.”
Sanders’ appellate defender Susan Hackett said the Attorney General’s Office has until July 2 to file a petition for rehearing before the Supreme Court’s decision becomes final and an evidentiary hearing in PCR court is scheduled. Due to this case still being pending, J. Mark Powell, spokesperson for the Attorney General’s Office, declined to comment.
According to court documents, before Sanders’ trial began in Dorchester County Circuit Court, Sanders and his public defender, Mark Leiendecker, entered into an agreement with the Solicitor’s Office. The agreement stated that in exchange for the prosecution not seeking the death penalty, Sanders agreed to a bench trial and waived his right to challenge the actions of his attorney. Circuit Judge R. Markley Dennis found Sanders guilty of murder and imposed a sentence of life in prison without parole.
In January 2011, Sanders filed for post-conviction relief alleging he received ineffective assistance of counsel. In the PCR court hearing, Sanders argued that his attorney “misadvised him with misleading statements” that would then make his signing of the agreement involuntary.
Attorney General David Spencer and then-Assistant Attorney General Rob Corney argued in February 2012 that the PCR court need only review the conversation between Judge Dennis and Sanders to “determine whether [Sanders] had voluntarily waived his right to an effective assistance of counsel claim,” according to the Supreme Court opinion. The PCR court dismissed Sanders’ application in May 2012 “after reviewing the record and the Agreement.”
“Essentially, the PCR judge agreed with the state’s position that as long as the waiver was entered into voluntarily, then Mr. Sanders could not file a PCR application,” Hackett said. “The PCR judge looked at the colloquy between Mr. Sanders and the trial judge and determined that the waiver was entered into voluntarily.”
On appeal the State of South Carolina argued that the Supreme Court was bound by a 2008 decision in Spoone v. State, which addresses whether a guilty plea agreement is enforceable when the defendant waived his right to a direct appeal.
Hackett said her argument to the Supreme Court essentially split the attorney agreement up into two different issues.
“Our issue is a very narrow issue and basically, what we said is that whether the waiver was entered into knowingly and voluntarily is a separate consideration of whether he gets to challenge whether he received effective assistance of counsel in the making of the agreement itself,” said Hackett.
The Supreme Court agreed with Hackett that it’s an issue the PCR court should hear.
Writing for the court, Justice Kaye Hearn acknowledges the court’s concern over the ethical implications of the agreement in this case. Hearn wrote that “a number of jurisdictions have acknowledged the conflict of interest that arises when an attorney counsels his client to waive the right to challenge his representation.” Hearn cited a 2011 advisory opinion by the Ohio Board of Commissioners on Grievances and Discipline which says, “[T]he Board advises that it is unethical under the Ohio Code of Professional Responsibility for a prosecutor to negotiate and a criminal defense attorney to advise a defendant to enter a plea agreement that waives the defendant’s appellate or postconviction claims of ineffective assistance of trial counsel or prosecutorial misconduct.”
“What we are challenging is whether he received effective assistance of counsel under his Sixth Amendment rights in signing the agreement itself,” Hackett said.
Phone calls and messages to Leiendecker by Lawyers Weekly were not immediately returned.
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