STATE OF SOUTH CAROLINA
IN THE SUPREME COURT
Appeal from Pickens County
Honorable Larry R. Patterson, Judge
STATE OF SOUTH CAROLINA,
BRIEF OF RESPONDENT
LYNN M. PALTROW C. RAUCH WISE
SUSAN J. WEILER American Civil Liberties
Center for Reproductive Union of South Carolina
Law & Policy Foundation, Inc.
120 Wall St., 18th Fl. 408 Main Street
New York, NY 10005 Greenwood, SC 29646 (212) 514-5534 (803) 229-5010
ATTORNEYS FOR RESPONDENT
TABLE OF CONTENTS
TABLE OF AUTHORITIES
STATEMENT OF FACTS
SUMMARY OF ARGUMENT
TABLE OF AUTHORITIES
CASES PAGE NO.
STATUTES AND CONSTITUTIONAL PROVISIONS
SOUTH CAROLINA HOUSE LEGISLATIVE MATERIALS
ARTICLES AND REPORTS
In 1992, Respondent Cornelia Whitner was charged with criminal child neglect because she had a drug addiction problem while she was pregnant. Ms. Whitner was charged under S.C. Code Ann. § 20-7-50 -- "unlawful neglect of child or helpless person by a legal custodian" -- and upon the advice of counsel pled guilty. After serving almost two years in jail, Ms. Whitner was granted post-conviction relief ("PCR") pursuant to S.C. Code Ann. § 17-27-20. The PCR court, held that because § 20-7-50 does not apply to a pregnant woman's conduct in relation to the fetus she carries, Ms. Whitner had been convicted of a non-existent crime. The PCR court's decision was required by the statute's plain meaning, the legislature's clear intent, the directive to construe penal statutes strictly, and the Constitutional guarantees of due process and privacy. In addition, there is ample evidence to support the PCR court's finding that Ms. Whitner received ineffective assistance of counsel.
On April 7, 1992, Cornelia Whitner was indicted for violating S.C. Code § 20-7-50, Indictment number 92-GS-39-670. According to the Affidavit in support of the arrest warrant, Ms. Whitner failed "to provide proper medical care for her unborn child by using crack cocaine while pregnant, thereby endangering the life of her unborn child." Affidavit in support of the Arrest Warrant D-038088 (Feb. 5, 1992).
Ms. Whitner was assigned court appointed counsel, Cheryl Aaron. Ms. Aaron was not appointed as counsel and did not meet with her client until the day of Ms. Whitner's scheduled hearing. Record Appendix at 29, 30, 34-35, 39. (Hereinafter "App. ___"). Ms. Aaron had previously worked as a prosecutor in Pickens County and had prosecuted pregnant addicted women under the Child Neglect Statute. App. 41, 44, 53. As a public defender representing Ms. Whitner, Ms. Aaron did not review the child abuse statute or the pertinent case law. App. 41. As she testified at the PCR hearing, "I don't think I ever pulled the book out." App. 41. Rather, she relied on her "recollection" of what the elements were. App. 41. In fact, Ms. Aaron did not do any independent research on the subject when she was a prosecutor nor after she became a public defender. App. 41, 49, 53. Indeed, even as a prosecutor, she never saw or was shown any research supporting the application of § 20-7-50 to fetuses or prenatal conduct. App. 55. In preparation for Ms. Whitner's case, Ms. Aaron had only reviewed the solicitor's file. App. 43. She did not seek to obtain nor did she review Ms. Whitner's hospital records. App. 43. Ms. Aaron stated: "I don't know that I ever saw a drug report or an analysis". App. 43. When asked about how the evidence was obtained and whether it might have been obtained illegally, Ms. Aaron admitted: "[m]aybe I was prejudiced a little bit by my experience in prosecution . . . ." App. 46.
As a result, Ms. Aaron did not advise Ms. Whitner that she had been indicted under a statute that on its face applied only to children and not fetuses, and that application to Ms. Whitner might violate such constitutional rights as the right to privacy. See App. 40-45. She did not advise Ms. Whitner that no circuit court in the state had applied the Child Neglect Statute to prenatal conduct. App. 79. Nor did Ms. Aaron inform Ms. Whitner that if the case went to trial there were grounds upon which evidence essential to the State's case could be suppressed. See App. 30, 31.
Notwithstanding the substantial basis for challenges to the indictment, Ms. Aaron explained to Ms. Whitner only that she had a right to a jury trial and that "they could prove that the child had crack or cocaine in its system, and she admitted having it in hers." App. 43-44. 1 Ms. Aaron told her client that she "would do everything that [she] could to help [Ms. Whitner] try and get into a treatment facility so that she could at one point be reunited with her children." App. 42, 47. Ms. Aaron, however, knew of no recommendation for treatment from the solicitor, App. 46, and when asked whether she had informed Ms. Whitner that the solicitor was "unwilling to negotiate anything," she said: "I don't know if I went that far. I told her that zero to 10 was her possible sentence." App. 47. Ms. Aaron also admitted that she knew of no drug treatment programs for pregnant women with substance abuse problems. App. 50-51. The only program she knew of for non-pregnant women was a program run by the department of corrections for women who had already been convicted of a crime. App. 50.
Ms. Whitner testified that her attorney asked her if she "wanted to plead guilty to doing drugs while I was pregnant, and I pled guilty." App. 29, 39. The only thing Ms. Whitner understood about the crime she was charged with was that it carried a sentence of up to ten years in prison. App. 29, 30, 47. See also App. 4. 2
On April 20, 1992, based on the advice given her by court-appointed counsel, Ms. Whitner entered a guilty plea before Honorable Frank Eppes, Judge. State v. Whitner, 92-GS-39-670 Transcript of Record (S.C. Ct. Gen. Sess. Pickens County Apr. 20, 1992) (hereinafter "Trans"). App. 31. The Judge explained that Ms. Whitner had a right to trial by jury, that she did not have to testify, and that the State would be required to prove her guilty beyond a reasonable doubt. Trans. at 2, 4. Judge Eppes asked Ms. Whitner if she wanted to give up her constitutional rights and plead guilty. Id. Each time, however, before the judge asked whether she wanted to plead guilty, he indicated that giving birth to babies who test positive for crack is a crime in South Carolina, punishable by 10 years on jail. Id. at 2, 4.
At the hearing, Ms. Whitner said, "I need some help, your honor." Id. at 2. Her attorney, Ms. Aaron, explained that the defendant had "an addiction problem," that she has been receiving drug counseling, that she had been off drugs since February, and that her child was currently in good health. Id. at 4-5. Both Ms. Aaron and Ms. Whitner reiterated that Ms. Whitner needed and wanted in-patient treatment. Id. Judge Eppes responded, "I think I'll just let her go to jail." Id. at 5. Ms. Whitner was sentenced to the State Board of Corrections for a period of eight years. Id.
Following her guilty plea and sentence, Ms. Whitner was not informed by her attorney that she had a right to appeal from a plea of guilty. Ms. Whitner served approximately nineteen months in jail before Ms. Aaron received a letter from the American Civil Liberties Union, and contacted Ms. Whitner to inform her that she may have pleaded guilty to a non-existent crime. App. 31, 42, 49.
On May 13, 1993, Ms. Whitner filed in the court of Common Pleas an Application for Post-Conviction Relief. On November 22, 1993, the Honorable Larry C. Patterson issued an order granting Ms. Whitner's Application for Post-Conviction Relief, and vacating her sentence for unlawful neglect of a child. Whitner v. State, 93-CP-39-347, slip op. (S.C. Ct. C.P. Nov. 22, 1993) (Hereinafter "PCR Order.") On November 22, 1993, the State3 filed a Notice of Intent to Appeal and on March 15, 1994 filed a Petition for Writ of Certiorari. On April 12, 1994, Ms. Whitner filed her return. On June 30, 1994, this Court granted the Petition for Writ of Certiorari.
Respondent Whitner's application for post-conviction relief was properly granted because Ms. Whitner pled guilty to a nonexistent crime. South Carolina Code Ann. § 20-7-50 (hereinafter "§ 20-7-50") was designed to deter the abuse and neglect of children once they are born, not to punish drug-dependent women who become pregnant and carry those pregnancies to term. Neither the plain meaning of § 20-7-50 nor the intent of the statute support its application to fetuses or prenatal conduct. Indeed, both the South Carolina Department of Social Services (hereinafter "DSS"), the agency charged with administering the Children's Code4, and the State Council on Maternal, Infant and Child Health ("MICH Council")5 have concluded that the provisions of the Children's Code were not intended to be applied to fetuses. Since the 1989-1990 legislative session, the South Carolina legislature has repeatedly considered and rejected proposals to expand the scope of § 20-7-50 and other provisions of the South Carolina Code to include fetuses and a pregnant woman's drug use. Neither the Petitioner nor the courts may usurp the legislative function by giving § 20-7-50 an interpretation neither adopted nor intended by the legislature. As the PCR Court correctly noted "[n]o appellate court in our nation has interpreted its child abuse laws to apply to a woman who takes illegal drugs during pregnancy." PCR Order, App. 78. Indeed, every appellate court and numerous trial courts in the country that have ruled on the validity of using existing criminal statutes to punish women who use drugs while pregnant has held that such prosecutions are without legal basis, unconstitutional or both. See Respondent's Supplemental Appendix.6
While the PCR court decided this case on grounds of statutory construction and legislative intent, the state and federal constitutional rights of due process and privacy also required Ms. Whitner's conviction to be overturned. A basic principle of due process is that before a person can be convicted of a crime by plea or trial, a crime must have been committed. Ms. Whitner not only was convicted of a non-existent crime but, based on the statute's past construction, she had no notice that § 20-7-50 would criminalize her pregnancy. In addition, the Petitioner's interpretation of § 20-7-50 violates the constitutionally protected right to procreate because the unprecedented interpretation of § 20-7-50 urged by the Petitioner has the effect of punishing drug-using women for having babies and of coercing abortions. In addition, because Petitioner's interpretation of § 20-7-50 opens the door to prosecutions for any behavior that could endanger the fetus, it violates the more general right to privacy from unjustified state intrusion. The Petitioner's interpretation, moreover, cannot be justified by any state interest. Its interpretation endangers both fetal and maternal health by frightening pregnant women with substance abuse problems out of the health care system.
There is no reason why this Court should reverse the PCR court's decision and give an interpretation to the child neglect law that every appellate court has rejected, and every leading public health group opposes. See, e.g., State v. Luster, supra note 6, 419 S.E.2d at 35 (viewing addiction during pregnancy as a disease and addressing the problem through treatment rather than prosecution is the approach "overwhelmingly in accord with the opinions of local and national medical experts"). See also discussion infra at 40-43.
Finally, the standard of review in Post-Conviction Relief cases is limited to determining only whether there is any evidence to support the PCR judge's findings of fact. The record in the case below established that there was evidence of probative value that Ms. Whitner was convicted of a non-existent crime and received ineffective assistance of counsel.
I THE LOWER COURT PROPERLY GRANTED POST-CONVICTION RELIEF BECAUSE MS. WHITNER PLED GUILTY TO A NON-EXISTENT CRIME.
"If any evidence of probative value exists on the record, this evidence is sufficient to uphold the PCR judge's findings on appeal." Cobbs v. State, 305 S.C. 299, 301, 408 S.E. 2d 223, 225 (1991); Grier v. State, 299 S.C. 321, 384 S.E.2d 722, 724 (1989) ("In reviewing a PCR grant, we are concerned only with whether there is 'any evidence' to support the PCR judge's decision."); Jolley v. State, 298 S.C. 296, 379 S.E.2d 900 (1989). A PCR application may be granted on the grounds that a trial court lacked subject matter jurisdiction to accept a guilty plea where the plea was premised upon an offense that does not exist. Williams v. State, 306 S.C. 89, 410 S.E.2d 563 (1991).7
A The Plain Language And Ordinary Meaning Of § 20-7-50 Support The PCR Court's Decision.
A basic tenet of statutory construction is that words should be given their plain and ordinary meaning. As the PCR court explained:
It is well established that in interpreting a statute, the court's primary function is to ascertain the intention of the Legislature. When the terms of the statute are clear and unambiguous, the court must apply them according to their literal meaning. Furthermore, in construing a statute, words must be given their plain and ordinary meaning without resort to subtle or forced construction to limit or expand the statute's operation.PCR Order, App. 77 (quoting State v. Blackmon, 304 S.C. 270, 273, 403 S.E.2d 660, 662 (1991) (citations omitted)). In addition, a statute that is penal in nature must be construed strictly against the State and in favor of the defendant. Williams v. State, 306 S.C. 89, 410 S.E.2d 563 (1991). See also State v. Cutler, 274 S.C. 376, 264 S.E.2d 420 (1980); Wright v. Georgia, 373 U.S. 284 (1963).
In this case, the Petitioner asks this Court to ignore these basic principles of statutory construction by giving § 20-7-50 a new and unintended meaning, and to apply it retroactively to Ms. Whitner.
Section 20-7-50, provides that:
Any person having the legal custody of a child or helpless person, who shall, without lawful excuse, refuse or neglect to provide the proper care and attention, as defined in Section 20-7-490, for such child or helpless person, so that the life, health or comfort of such child or helpless person is endangered or is likely to be endangered, shall be guilty of a misdemeanor and shall be punished within the discretion of the circuit court.S.C. § 20-7-50 (1985). Under South Carolina's Children's Code a child is defined as "a person under the age of eighteen." S.C. Code Ann. §§ 20-7-30(1); 20-7-490(A). In granting post-conviction relief to Ms. Whitner, the court below correctly held that "[t]he plain meaning of `a person under the age of eighteen' does not include a fetus." PCR Order, App. 78. As discussed below, the PCR Court's decision regarding the plain meaning of the words "child" and "person under the age of eighteen" is also the only one consistent with the use of those words throughout the Children's Code. See infra at 15-17.
Consistent with the plain and ordinary meaning of § 20-7-50, this Court and lower courts have applied the statute only in cases involving physical or emotional abuse of a born child. For example, courts have found § 20-7-50 to proscribe beating a child so severely that she was black and blue and her ears rang for several days, Dept. of Social Serv. v. Father & Mother, 294 S.C. 518, 316 S.E.2d 40 (Ct. App. 1988); or leaving two children, ages eight and five, sleeping alone in a home which subsequently caught fire and burned the children to death, State v. Jenkins, 278 S.C. 219, 294 S.E.2d 44 (1982); but not necessarily a single incident of splashing cool or cold water on a child as a disciplinary measure, Florence County DSS v. Ward, 425 S.E.2d 61 (S.C. Ct. App. 1992).
In at least four other cases, courts in South Carolina have explicitly rejected the application of § 20-7-50 to fetuses and pregnant women. See Rickman v. Evatt, 94-CP-04-138, slip op. (S.C. Anderson, Sept. 9, 1994) (granting habeas corpus relief to reverse conviction under § 20-7-50 because "[a]s the legislature choose [sic] to use the word 'child' in the current statute, this court must interpret the statute to exclude its application to a fetus"), State v. Crawley, 93-GS-04-756, slip op. (S.C., Anderson Nov. 29, 1993) (quashing indictment under § 20-7-50 of woman who allegedly used drugs while pregnant, finding that the plain and ordinary meaning generally given to the word "child" does not include "fetus"); Lester v. State, 93-CP-23-2984 (S.C. Greenville, Nov. 22, 1993) (granting post-conviction relief on same grounds as the instant case); Tolliver v. State, No. 90-CP-23-5178, slip op (S.C. Greenville Aug. 10, 1992) cert. denied (S.C. Mar. 10, 1993) (granting post-conviction relief for a woman who pled guilty to child neglect under § 20-7-50, finding that application of statute to a woman who used drugs while pregnant violated statute's plain meaning and legislative intent.)
Moreover, the "plain and ordinary meaning" of other language in the statute reinforces the conclusion that § 20-7-50 was not designed or intended to reach fetuses on prenatal conduct. The statute applies to those persons having "legal custody" of the child. S.C. Code Ann. § 20-7-50. The concept of "legal custody" "presupposes the existence of a separate individual susceptible to custody." MICH Report Vol. III at 28 (footnotes omitted). 8
When the South Carolina legislature intends a statute to apply to fetuses, it states so explicitly. See, S.C. Code Ann. § 44-43-320 (reference to "infant or fetus"); see also S.C. Code Ann. §§ 1-13-30(l); 44-41-10(f) (pregnancy is defined as "condition of a woman carrying a fetus or embryo within her body as the result of conception"); §§ 44-41-10(a) and (l).
Because the plain and ordinary meaning of § 20-7-50 does not apply to fetuses or prenatal conduct, the PCR's decision to overturn Ms. Whitner's conviction should be affirmed.
B Petitioner's Application Of The Child Abuse Statute To Fetuses And Prenatal Conduct Is Contrary To Clear Legislative Intent.
"The elementary and cardinal rule of statutory construction is that the Court ascertain and effectuate the actual intent of the legislature." Horn v. Davis Electrical Constructors, Inc., 307 S.C. 559, 563, 416 S.E.2d 634, 636 (1992). See also Blackmon, 303 S.C. at 403, S.E.2d at 662; State v. Burton, 301 S.C. 305, 391 S.E.2d 583 (1990); State v. Carter, 298 S.C. 304, 379 S.E.2d 905 (1989); Burns v. State Farm Mutual Auto Ins. Co., 297 S.C. 520, 377 S.E.2d 569 (1989). In addition to looking at the plain language of the statute to determine its meaning, the court may also look at the "entire legislative enactment" of which the specific provision is part, State v. Patterson, 66 S.E.2d 875, 876 (S.C. 1951), as well as the legislative history, including legislative action or inaction on the subject. Blackmon, 303 S.C. at 273-74, 403 S.E.2d at 662 n.2. An examination of § 20-7-50's history and intent make clear that the legislature never intended the statute to apply to fetuses or a pregnant woman's conduct in relation to the fetus.
1 The PCR court's construction of § 20-7-50 is consistent with the statutory scheme established in South Carolina's Children's Code.Section 20-7-50 is part of the South Carolina Children's Code which repeatedly uses the terms "child" or "person under eighteen." The use of these terms throughout the Children's Code contradict the Petitioner's contention that the legislature intended to include fetuses within its purview. 9 For example, S.C. Code § 20-7-20 refers to placement of children "in care away from their homes" and "remov[al] from their homes." S.C. Code § 20-7-20. "Removal" of a child from its parents clearly cannot take place if the "child" is a fetus. Similarly, the adoption and child custody procedures outlined in Articles 9 and 11 make no sense at all with reference to fetuses, since it is unintelligible to speak of "deter[ring] abduction" of a fetus, S.C. Code § 20-7-784 (purpose of child custody statute is to "deter abductions and other unilateral removals of children"), and it is impossible to provide with any certainty a fetus' date or place of birth, S.C. Code § 20-7-1790 (providing for the issuance of amended birth certificates for adopted children).
The phrase "person under eighteen" is also used several times in the Children's Code, all in contexts that plainly do not apply to fetuses or unborn children. S.C. Code Ann. § 20-7-350 makes it unlawful for any person under eighteen to loiter in a billiard room; and S.C. Code Ann. § 20-7-340 makes it unlawful for a "person under eighteen to play a pinball machine." It is simply absurd to assume that in any of these statutes the legislature intended to reach fetuses.
Petitioner, nevertheless, argues in effect that even though the legislature clearly intended "child" to mean a born child in every other provision of South Carolina's Children Code, for purposes of § 20-7-50 alone, "child" means a born child or a fetus. See Pet. Brf. at 7. This argument is contrary to the most basic principles of statutory construction. As lower courts have said, "[w]here the same word is used more than once in a statute it is presumed to have the same meaning throughout unless a different meaning is necessary to avoid an absurd result." Bell Finance Co., Inc. v. Dep't of Consumer of Affairs, 297 S.C. 111, 374 S.E.2d 918 (S.C. Ct. App. 1988); Smalls v. Weed, 293 S.C. 364, 360 S.E. 2d 531 (S.C. Ct. App. 1987); Busby v. State Farm Mut. Auto. Ins. Co., 280 S.C. 330, 312 S.E.2d 716 (Ct. App. 1984). Indeed, this Court has held that "[s]ections which are part of the same general statutory law of the state must be construed together" and has applied this principle specifically to the provisions of the Children's Code. In re Kenneth Lamont G., 304 S.C. 456, 460, 405 S.E.2d 404 (1991). These rules of statutory construction require this Court to affirm the PCR court's decision and reject the State's unprecedented and unsupported interpretation of § 20-7-50.
2 The legislative history of § 20-7-50 and the South Carolina Children's Code make clear that the child neglect statute was not intended to be applied to fetuses or prenatal conduct.
Where the language of a statute is ambiguous, courts may look to the legislative history of the statute to determine its meaning. See Blackmon, 303 S.C. at 273-74, 403 S.E.2d at 662. Although it should be clear that the language of § 20-7-50 does not apply to fetuses, the legislative history of § 20-7-50 makes it unmistakable that the legislature never intended it to apply to a pregnant woman in relationship to the fetus.
Section 20-7-50 was originally enacted in 1874 as "An Act to Punish Persons for Ill-Treating Children, Apprentices, Idiots, Servants and Helpless Persons" and provided that:
any person legally liable to provide for a child necessary food, clothing, or lodging, who refused or neglected to do the same, or who maliciously caused bodily harm, so that the child's life was endangered, or the health or comfort of such child was or was likely to be permanently injured, was guilty of a misdemeanor and could be imprisoned up to two years at the discretion of the court.
Law of March 17, 1874, (15) 704. The law was amended in 1927 to include the failure to provide medical treatment. S.C. Crim. Code 1922 § 21. (amended by Acts No. 62 & 149 of 1927). In 1962, this statute was shortened and recodified as § 16-96 S.C. Code of Laws 1962.10 In 1981, this provision was consolidated with other statutes pertaining to children into the Children's Code and recodified as § 20-7-50 (1981). In none of its incarnations did South Carolina's child neglect statute refer or apply to fetuses.
Under the consolidated Children's Code, § 20-7-50 expressly shares the definitions of child neglect enacted under the South Carolina Child Protection Act of 1977.11 See S.C. Code Ann.
§ 20-7-490. The history of the 1977 Child Protection Act and the Federal statute and model laws it was based on supports the PCR court's conclusion that § 20-7-50 was never intended to apply to fetuses.
The Child Protection Act of 1977 was designed to bring South Carolina into compliance with the Federal Child Abuse Prevention and Treatment Act of 1974 so that South Carolina could qualify for federal assistance.12 See A Bill Dealing With Child Abuse and Neglect, March 1977: Hearings on H. 2069 Before the Subcommittee on Social Services, Courts and Corrections Affairs and the Committee on Medical, Military, Public and Municipal Affairs (statement of George R. Sharwell, representing the South Carolina State Chapter of the National Association of Social Workers) (hereinafter "Hearings on H. 2069"); John D. Elliott, Child Protection Act of 1977 with Commentary, (prepared for the South Carolina Bar Young Lawyers' Section Child Abuse Seminars) (March 1980). The Federal Child Abuse and Prevention Act did not refer to fetuses or address conduct by a pregnant woman toward her fetus.
While this Federal Act provided the broad parameters for South Carolina's Child Protection Act, the details of the statute including its definition were largely drawn from the Model Child Protection Act drafted by the then United States Department of Health Education and Welfare's Children's Bureau in 1976. Elliott, Child Protection Act of 1977 with Commentary at 3. This Model Act did not refer to or define neglect to include prenatal conduct. 13 The Child Protection Act was also influenced by the public pressure to strengthen South Carolina's child neglect laws that followed extensive media coverage of several horrifying incidents of children who were beaten by adults.14 Nowhere in the public hearings that ensued was there any discussion of extending protection to fetuses or addressing conduct of pregnant woman in relation to their future children. See supra Hearings on H. 2069.
Thus, the legislative history of the Child Protection Act supports the PCR court's conclusion that § 20-7-50 does not apply to fetuses.
3 The legislature has considered and explicitly rejected the interpretation of § 20-7-50 urged by the Petitioner in this case.
This Court may take judicial notice of legislative action or inaction on a subject. See Blackmon, 303 S.C. at 273-74, 403 S.E.2d at 662 n.2. See also, Hair v. State, 305 S.C. 77, 406 S.E.2d 332 (1991). At least as early as the 1989-1990 legislative session and consistently in each legislative session since, South Carolina lawmakers have introduced bills specifically addressing the subject of substance abuse and pregnancy. Many bills would have mandated reporting of a woman's drug use during pregnancy to the Department of Social Services and redefined an abused child to include newborns exposed prenatally to drugs.15 One bill, S. 4032 (1993), would have made it a crime for a pregnant woman to ingest a controlled substance and House Bill 4486 (1994) would have amended § 20-7-50 to include "a woman who is pregnant" and "fetus[es]." None of these bills, however, passed.
Given the degree of legislative activity on this subject and the legislature's rejection of exactly the use of § 20-7-50 urged here, the PCR Court was correct to conclude that "it is just the type of question the legislature must decide." PCR Order, App. 79. 16
This Court, as the court below did, must "leave to the legislature the resolution of the matter." Blackmon, 303 S.C. at 273-74, 403 S.E.2d at 662. "The responsibility for the justice or wisdom of legislation rests with the Legislature, and it is the province of the courts to construe, not to make, laws." Laird v. Nationwide Ins. Co., 243 S.C. 388, 395, 134 S.E.2d 206, 209 (1964). See also Belk v. Nationwide Mutual Ins. Co., 271 S.C. 24, 27, 244 S.E.2d 744, 746 (1978).
4 The Petitioner's interpretation would lead to absurd results obviously not intended by the legislature.
Finally, courts must avoid construing a statute so as to lead to an absurd result "not possibly intended by the legislature." Hamm v. South Carolina Public Service Commissioner, 336 S.E.2d 470, 471 (1985)17 If Petitioner's interpretation of § 20-7-50 were correct, every action by a pregnant woman that "endanger[s] or is likely to  endanger" a fetus, whether otherwise legal or illegal, would be unlawful neglect under the statute. As the court in Tolliver, supra n. 6, at 6, concluded:
If the position of the State were to be sustained, then any pregnant woman who drinks alcohol could be charged for harming the fetus she is carrying due to Fetal Alcohol Syndrome. A pregnant woman could be arrested for smoking cigarettes and harming the fetus she is carrying. In fact, warnings on cigarette packages warn of this specific danger. A pregnant woman could be arrested for failing to take proper medication or follow her doctors instruction and thus harm the fetus.Because the PCR court was correct to reject an interpretation not only unsupported by the language of the statute and the legislative history, but one that would also lead to absurd results obviously unintended by the legislature, its decision should be affirmed.
C Petitioner's Application Of The Child Abuse Statute to Fetuses And Prenatal Conduct Is Inconsistent With The Interpretation Given the Statute By the Agency Charged With Its Implementation.
The Department of Social Services ("DSS") has firmly rejected the argument that the term "child" in the Children's Code includes fetuses.18 In a memorandum dated February 7, 1990, the Assistant General Counsel, Office of General Counsel, Department of Social Services, referred to this interpretation as "novel" and refused to accept it. (Reproduced in Respondent's Supplemental Appendix). The memorandum canvassed various provisions of the Children's Code. With respect to protective services provisions, DSS concluded that "[t]he legislature's concern about whether a child remains in the home or is placed elsewhere indicates that the law was not intended to reach the unborn." Id. at 3. The agency declared that portions of the provision for removal of custody "detailing visitation and placement requirements of the placement plan also indicate no legislative intent to apply child abuse and neglect procedures to the unborn." Id. Consequently, DSS concluded that:
The definition of "child" in § 20-7-490 could arguably be amended judicially to include a viable fetus based on judicial interpretations of "person" in other areas. However, this would be contrary to legislative intent expressed throughout [the Children's Code]. This agency should decline to adopt an interpretation which is not clearly intended by the legislature. It should also decline to ask the Family Court to adopt an interpretation which conflicts with legislative intent.Id. at 3-4.
In October of 1990, DSS, consistent with its interpretation of the Children's Code, issued Operational Guidelines For Child Protective Services Involving Drug Exposed Infants ("Operational Guidelines") (reproduced in Respondent's Supplemental Appendix). In these Guidelines DSS concluded again that the South Carolina Children's Code "as it relates to the provision of [Child Protective Services] does not extend to unborn children or to fetal deaths attributed to the mother's prenatal activities." Id., § I Part 2. 19
South Carolina courts accord DSS's construction of the Children Code "the most respectful consideration and [should] not overrule [it] absent compelling reasons." Dunton v. South Carolina Bd. of Examiners in Optometry, 291 S.C. 221, 353 S.E.2d 132, 133 (1987) 20
D The PCR Court Properly Relied On The Decisions of Sister States Courts.
Petitioner suggests that the PCR court relied in error on the holdings of other states' courts in determining that a fetus is not a "child" for purposes of S.C. Code § 20-7-50. Pet. Brf. at 7-8. In fact, in deciding cases of first impression such as the instant case, this Court has often looked to and followed the precedent of its sister states. See, e.g., Upchurch v. New York Times Co., 431 S.E.2d 558 (S.C. 1993) (following North Carolina precedent); State v. Alexander, 303 S.C. 377, 401 S.E.2d 146 (1991) (adopting Missouri and Arizona precedent); Braten Apparel Corp. v. Bankers Trust Co., 273 S.C. 663, 259 S.E.2d 110 (1979) (citing precedents from thirty-three states and the District of Columbia); Hall v. Bates, 247 S.C. 511, 148 S.E.2d 345 (1966) (citing precedents in at least ten states). "[I]n deciding a case of first impression, the decisions of courts of other jurisdictions are persuasive authority in South Carolina." Reid v. Life Ins. Co. of North America, Inc., 718 F.2d 677, 680 (4th Cir. 1983) (citing Shepherd v. United States Fidelity & Guar. Co., 233 S.C. 536, 106 S.E.2d 381, 383 (1958)). Thus, the PCR Court properly considered the holdings of sister state courts which have unanimously rejected the interpretation urged by the Petitioner in this case. PCR Order, App. 78. The Petitioner simply provides no persuasive reason why this Court should ignore these highly relevant and well-reasoned decisions.21
E The Decisions In State v. Horne, Fowler v. Woodward And Hall v. Murphy Do Not Require This Court To Ignore
§ 20-7-50's Plain Meaning And Obvious Intent.
Unable to find support for its interpretation in the statute itself, its legislative history, its statutory context, or in any authoritative interpretation of the statute, the Petitioner resorts to the argument that three of this Court's earlier cases, State v. Horne, 282 S.C. 444, 319 S.E.2d 703 (1984); Hall v. Murphy, 236 S.C. 257, 113 S.E.2d 790 (1960); and Fowler v. Woodward, 244 S.C. 608, 138 S.E.2d 42 (1964) require that the word "child" in § 20-7-50 be expanded to include viable fetuses. Pet. Brf. at 4-7. None of these cases, however, construed § 20-7-50, the statute at issue in this case; none even rested on an interpretation of a criminal statute; and none involved the issue of potential harm or injury to the fetus caused by the pregnant woman herself. Furthermore, none of these carefully drawn decisions in any way suggests, as Petitioner asserts, that this Court has broadly and in all legal contexts "recognized the right of a fetus to life." Pet. Brf. at 4.
In Hall v. Murphy, parents sought to recover under the state's wrongful death statute for the loss of a child who sustained injuries before birth as a result of an automobile accident. This Court held that a cause of action could be maintained on behalf of a child who had suffered prenatal injury through the fault of a person other than the child's mother. In Fowler v. Woodward, this Court extended this principle to sustain a wrongful death action brought on behalf of a never-born fetus whose prenatal death resulted from injuries sustained in an automobile collision caused by a third party. Both of these cases involved the interpretation of civil statutes (that do not require strict statutory construction) and the development of common law tort principles, an area of law in which courts have traditionally been the primary engines of change. Consequently, this Court quite properly followed a national trend to expand the scope of wrongful death actions to include the loss to parents of children they expected to have. See id22.
In State v. Horne, a pregnant woman was stabbed repeatedly in an attack by her husband. While the woman survived the attack, the fetus did not, and the husband was indicted on charges of homicide. This Court was called upon to determine whether the killing of a viable fetus constituted homicide, and decided that it was. Although State v. Horne nominally involved the interpretation of this State's murder statute, § S.C. 16-3-10 (1976), this Court relied on its "right and [its] duty to develop the common law of South Carolina" in concluding that "an action for murder may be maintained in the future when the state can prove beyond a reasonable doubt the fetus . . . was viable . . ." Id. 319 S.E.2d at 704. 23 (Emphasis added) 24 In South Carolina, "[t]here is no distinction between statutory and common-law murder: the statute is merely declaratory of the common law." Hinson v. State, 297 S.C. 456, 377 S.E.2d 338, 339 (1989). This Court's refusal to apply its new, more expansive definition of homicide to the facts of the case before it, Horne, 319 S.E.2d at 704, makes clear that it was not merely articulating a meaning of the word "person" already inherent in the homicide statute, but rather was forging new law under its plenary authority to expound the common law. 25 Moreover, nothing in Horne suggests that its interpretation of "person" was to be applied to anything except the state's homicide law.
These cases are easily distinguishable from the one now before this Court. Fowler and Hall involved the interpretation of civil statutes and the development of common law tort principles and therefore simply do not control the interpretation of § 20-7-50, a criminal statute that must be strictly construed. Similarly, Horne involved this Court's authority as a matter of common law to interpret the State's murder law. This Court, however, does not have the same authority to interpret broadly § 20-7-50 because child neglect was not a crime at common law. 26 Thus, in this case, unlike Horne, Fowler and Hall, this Court is asked to construe a criminal statute, and both due process as well as the rules of statutory interpretation of criminal statutes require a strict construction limited to ascertaining and giving effect to the intention of the legislature. The expansion of the scope of a term in a criminal statute urged by the Petitioner is not within the province of this Court's authority.
Additionally, all three of these decisions involved harm caused to the fetus by someone other than the pregnant woman herself. In State v. Horne, this Court, referring to its earlier decisions in Hall v. Murphy and Fowler v. Woodward, observed that "[i]t would be grossly inconsistent for [the Court] to construe a viable fetus as a `person' for the purpose of imposing civil liability while refusing to give it a similar classification in the criminal context." The inconsistency this Court's opinion referred to, however, was not the treatment of the word "person" in all of South Carolina's code and common law, see Pet. Brf. at 6, but rather, an inconsistency in the criminal and civil law's response to third parties whose intentional or negligent acts cause parents to lose the children they expected to have.
Extending such liability to the pregnant woman herself would constitute a radical and dangerous expansion of the existing law. As the Supreme Court of Illinois in Stallman v. Youngquist, 531 N.E.2d 355, 359, 360 (Ill. 1988) held in refusing to recognize a cause of action for maternal prenatal negligence:
[s]ince anything which a pregnant woman does or does not do may have an impact, either positive or negative, on her developing fetus, any act or omission on her part could render her liable to her subsequently born child . . . Mother and child would be legal adversaries from the moment of conception until birth . . . Holding a third person liable for prenatal injuries furthers the interests of both the mother and the subsequently born child and does not interfere with the defendant's right to control his or her own life. Holding a mother liable for the unintentional infliction of prenatal injuries subjects to State scrutiny all the decisions a woman must make in attempting to carry a pregnancy to term, and infringes on her right to privacy and bodily autonomy . . . Logic does not demand that a pregnant woman be treated in a court of law as a stranger to her developing fetus . . . As opposed to the third-party defendant, it is the mother's every waking and sleeping moment which, for better or worse, shapes the prenatal environment which forms the world for the developing fetus.
Like the court in Stallman, this Court should refuse the invitation to usurp the legislative function and create a legally enforceable duty on the part of pregnant women to guarantee the health of their future children.
II EVEN IF THIS COURT FINDS THAT A FETUS IS A CHILD FOR PURPOSES OF § 20-7-50, APPLICATION OF THE LAW TO MS. WHITNER WOULD VIOLATE HER CONSTITUTIONALLY PROTECTED RIGHTS OF PRIVACY AND DUE PROCESS.
The principle that statutes must be strictly construed ultimately rests on the due process requirement that criminal statutes must give fair notice of the conduct proscribed. State v. Smith, 275 S.C. 164, 268 S.E.2d 276, 277 (1980); State v. Crenshaw, 274 S.C. 475, 266 S.E.2d 61 (1980). "If the statute is so obscure that men of common intelligence must necessarily guess at its meaning and differ as to its applicability, it is unconstitutional." City of Beaufort v. Baker, 432 S.E.2d 470 (S.C. 1993) (citing State v. Albert, 257 S.C. 131, 134, 184 S.E.2d 605, 606 (1971)) (emphasis added).
Based on the plain language of §§ 20-7-50 and 20-7-490, a woman of common intelligence could not have known that that act of ingesting cocaine while pregnant or engaging in behavior that might endanger herself and the pregnancy would be penalized under these laws. As the court in People v. Morabito, supra n. 6, slip op. at 4, concluded
[the endangering the welfare of a child] statute's application to pregnant mothers is not sufficiently definitive and explicit to inform them that their taking drugs will render them subject to penalties. To the extent that a pregnant woman would be required, at peril of her life, liberty or property to speculate concerning the applicability of the statue to her conduct it is clear that due process also proscribes the interpretation advocated by the people.27Significantly, when this Court established the common law crime of feticide in State v. Horne, 282 S.C. 444, 319 S.E.2d 703 (1984), upon which Petitioner places such weight, it held that it could not apply the new crime to the defendant in that case. This Court observed, "[t]he criminal law whether declared by the courts or enacted by the legislature cannot be applied retroactively." Horne, 319 S.E.2d at 704.
Furthermore, if this Court accepted the Petitioner's interpretation of § 20-7-50, it would be forced to find this statute void for vagueness. See Grayned v. City of Rockford, 408 U.S. 104, 108 (1972) ("It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined."). This is so because the language in the statute, as applied to prenatal conduct, is too vague to put women of ordinary intelligence on notice of which of the myriad prenatal acts or omissions that can threaten fetuses and future children would make them subject to criminal prosecution. See discussion infra at 22-23.
Because Ms. Whitner could not have known from the language or previous application of the state's child neglect statute that she would be subject to criminal prosecution for her conduct during pregnancy, the PCR court's decision was required by the constitutional guarantees of due process.
B Petitioner's Interpretation Of § 20-7-50 Would Violate Ms. Whitner's Constitutional Right To Privacy And Would Undermine Both Maternal And Fetal Health.
The constitutional right to privacy required the PCR court's decision that § 20-7-50 did not apply to drug addicted women who became pregnant and gave birth. Under the Petitioner's interpretation of § 20-5-70, new mothers with substance abuse problems become subject to incarceration for up to ten years. 28 Had Ms. Whitner chosen not to carry her pregnancy to term, she would not have been charged with or convicted of child neglect. Because the Petitioner's interpretation of § 20-7-50 prevents chemically-dependent women from making an independent choice free from government coercion about whether or not to carry their pregnancies to term, it violates the right to privacy as guaran-teed by the United States Constitution. 29 See also MICH Report Vol. III at 10; Dorothy E. Roberts, Punishing Drug Addicts Who Have Babies: Women of Color, Equality, and the Right of Privacy, 104 Harv. L. Rev. 1419, 1445 (1991) ("[i]t is the choice of carrying a pregnancy to term that is being penalized") (emphasis in original).
The United States Supreme Court has specifically recognized the right to procreate as a fundamental civil liberty. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also, Paul v. Davis, 424 U.S. 693, 713 (1976); Carey v. Population Servs. Int'l, 431 U.S. 678, 685 (1977); United States v. 12 200-Foot Reels, 413 U.S. 123, 127 n.4 (1973); Eisenstadt v. Baird, 405 U.S. 438, 453 (1972). 30
The constitution not only protects women from being forced to terminate wanted pregnancies, it also protects them from measures penalizing them for carrying such pregnancies to term. In Arnold v. Board of Education of Escambia County Ala., 880 F.2d 305, 311 (11th Cir. 1989), the court held that "[t]here sim-ply can be no question that the individual must be free to decide to carry a child to term." Most recently in Planned Parenthood v. Casey, 112 S. Ct. 2791, 2806 (1992), the U.S. Supreme Court held that:
It is settled now, as it was when the Court heard arguments in Roe v. Wade, that the Constitution places limits on a State's right to interfere with a person's most basic decisions about family and parenthood, as well as bodily integrity(citations omitted). The Court also noted that its decision in Roe v. Wade, 410 U.S. 113 (1973), "had been sensibly relied upon to counter" attempts to interfere with a woman's decision to become pregnant or to carry to term. Id. at 2811.
In Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974), the Court found unconstitutional a rule that required pregnant school teachers to take unpaid maternity leave at an arbitrary time prior to an expected childbirth. Noting that "freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment," the Court struck down the rules because "[b]y acting to penalize the pregnant teacher for decid-ing to bear a child, overly restrictive maternity leave regula-tions can constitute a heavy burden on the exercise of these protected freedoms." Id. at 639-40. Certainly the threat of imprisonment for ten years is an even greater burden on the exercise of pro-tected reproductive freedoms than is an overly restrictive maternity leave policy. 31 See MICH Report Vol. III at 10.
Because of the intrusion into pregnant women's lives that the Petitioner's interpretation of § 20-5-70 requires -- namely to reach and deter behavior during pregnancy -- it also implicates a woman's right to bodily integrity and her "fundamental and wide-ranging `right to be let alone.'" Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting)).32 Because the fetus is physically part of a woman's body, her every action during pregnancy could become a matter of criminal investigation. 33 See Stallman v. Youngquist, 531 N.E.2d 355 (Ill. 1988). See discussion supra at 31.
Because privacy rights are implicated, the burden shifts to the Petitioner to prove that the application of § 20-7-50 to fetuses and pregnant women furthers some state interest. As the MICH report explained: "A program that includes . . . criminal prosecution of the woman has a major impact on a variety of fundamental interests, and hence could be justified only by the strongest state interest." Vol. III at 14. Petitioner, however, cannot establish that its interpretation of § 20-5-70 serves any legitimate state interest because it is both ineffective and counterproductive. As the American Academy of Pediatrics has concluded, "[p]uni-tive measures taken toward pregnant women, such as crim-inal prose-cution and incarceration, have no proven benefits for infant health." 34 American Academy of Pediatrics, Committee on Substance Abuse, Drug-Exposed Infants, 86 Pediatrics 639, 641 (1990). See also U.S. Department of Health and Human Services, Center for Substance Abuse Treatment, Pregnant, Sub-stance-Using Women, Treatment Improvement Protocol, Series No. 2 (1993) ("TIP") ("there is no evidence that punitive approaches work"). The Florida Supreme Court has similarly noted that "[p]unishment is simply not an effective way of curing a de-pendency or preventing future substance abuse." Johnson v. State, 602 So. 2d 1288, 1295 n. 6 (Fla. 1992) (citing American Medical Association Board of Trustees, Legal Interventions During Pregnancy, 264 JAMA 2663, 2667 (1990).
State, federal and private researchers have all concluded that punitive approaches frighten women away from needed treat-ment. For example, two reports from the Federal General Ac-counting Office have concluded that women are deterred from drug treatment and prenatal care by threats of prosecution: "The threat of prose-cution poses yet another barrier to treatment for pregnant women and mothers with young children. These women are reluctant to seek treatment if there is the possibility of punishment, which may include incarceration." United States General Accounting Office Report to the Chairman, Subcommittee on Health and the Environ-ment, Committee on Energy and Commerce, House of Repre-sentatives ADMS Block Grant, Women's Set-Aside Does Not Assure Drug Treatment for Pregnant Women, GAO/HRO-91-80, at 20 (May 1991) [herein-after "GAO II"]. See also United State General Accounting Office Report to the Chairman, Committee on Finance, U.S. Senate, Drug-Exposed Infants, A Generation at Risk, GAO/HRO-90-138 (June 1990) at 39 [hereinafter "GAO I"] ("some women are now delivering their in-fants at home in order to prevent the state from discovering their drug use."). 35 The MICH Report similarly observed that "for pregnant women in particu-lar, the fear of criminal prosecution may prevent them from seeking appropriate treatment and health care services." MICH Report Vol. II at 10.
Fearing the effects of such policies on the public health, virtually every leading public health organization has published a policy or recommendation opposing the prosecution of pregnant women who use drugs, including the American Medical Association,36 the American Academy of Pediatrics,37 the American College of Obstetricians and Gynecologists,38 the American Public Health Association, 39 the Southern Regional Project on Infant Mortality (an initiative of the Southern Governors' Association and the Southern Legislative Conference), 40 the American Society on Addiction Medicine, 41 the March of Dimes42 the National Association for Perinatal Addiction Research and Education, 43 the National Council on Alcoholism and Drug Dependence,44 the Association of Maternal and Child Health Programs,45 Coalition on Alcohol and Drug Dependent Women and Their Children,46 and the staff of the Center for the Future of Children. 47 (Policy statements reproduced in Respondent's Supplemental Appendix.)48 Courts across the country have also recognized that approaches that incorporate prosecution are counterproductive. For example, in its unanimous decision in Johnson v. State, supra, the Supreme Court of Florida observed that:
Rather than face the possibility of prosecution, pregnant women who are substance abusers may simply avoid prenatal or medical care for fear of being detected.602 So. 2d at 1295-96. Similarly, in State v. Gethers, 585 So. 2d 1140, 1143 (Fla. App. 1991), the court pointed out that:
to avoid being reported by medical personnel, who would have a statutory duty to do so, a pregnant addict might refrain from obtaining proper prenatal and postnatal care. She might even deliver without medical assist-ance, thereby risking injury and death to both herself and the child. Finally, fear of prosecution could deter pregnant drug abusers from seeking treatment for drug problems.585 So. 2d at 1143 (quoting with approval, Brian Spitzer, A Response To "Cocaine Babies", 15 Fla. S.U. L. Rev. 865, 881 (1987)). 49 Moreover, fear of being reported to the police and prosecuted will discourage women from communicating honestly about their drug addiction problems to health care professionals who need that information to provide appropriate health care to both the woman and fetus or newborn. 50
Not only does the Petitioner's interpretation of § 20-7-50 threaten both the pregnant woman and future child's health, no state interest is served by imposing criminal sanctions as a means to motivate women to seek non-existent or inappropriate treatment for their drug-related problems.
Women, especially poor pregnant women, find it virtually impossible to get appropriate drug treatment in South Carolina. 51 The MICH Report concluded that "specific resources designed to meet the needs of women of childbearing age, especially pregnant women, are not widely available." Vol. II at 2. In fact, the 1991 Federal General Accounting Office Report found the State of South Carolina, "did not have any specific or unique treatment services for pregnant women and mothers with young children. 52 GAO II at 12, 15. (Emphasis added).53
In light of the lack of treatment and the likelihood that women will be deterred from what treatment exists, prosecution for child neglect clearly does not constitute the least intrusive means for accomplishing a state interest in unborn or future children. As the Johnson court noted: "prosecuting [pregnant] women for using drugs. . . appears to be the least effective response to this crisis." Johnson, 602 So.2d at 1295. The least intrusive means would be to make voluntary, welcoming drug treatment services available to women who want them. See Wendy Chavkin, Mandatory Treatment For Drug Use During Pregnancy, 266 JAMA 1556, 1560 ("At this time, the children of drug-using mothers may be most effectively served by the development of available, efficacious and welcoming services for women.").
Because the Petitioner's interpretation of § 20-7-50 cannot survive the strict scrutiny required under the privacy analysis, the PCR judge's ruling should be affirmed. See Pellegrini, supra n. 6; Bremer, supra n. 6 slip op. at 11-14. (finding that even if criminal statutes were intended to apply to women who use drugs and have babies, that application would violate the constitutional right to privacy).
III THE LOWER COURT PROPERLY GRANTED MS. WHITNER'S APPLICATION FOR POST-CONVICTION RELIEF BECAUSE SHE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.
To establish a claim of ineffective assistance of counsel a defendant must show that counsel's performance was deficient and that counsel's deficient performance prejudiced the defense. See Butler v. State, 286 S.C. 441, 334 S.E.2d 813 (1985); Strickland v. Washington, 466 U.S. 668 (1984). See also, Hill v. Lockhart, 474 U.S. 52 (1985) (applying two prong test set forth in Strickland to ineffective assistance claims in the context of guilty pleas). Where the defendant entered a guilty plea, the defendant must show that there is a reasonable probability that, but for counsel's errors, she would not have pled guilty but would have insisted on a trial. Hinson v. State, 297 S.C. 456, 377 S.E.2d 338 (1989). It is clear that where a defendant's trial counsel fails to advise defendant that his or her acts do not constitute a crime under South Carolina law, counsel's assistance is per se deficient and prejudicial, thereby satisfying the two prong test set out in Strickland and providing sufficient basis for granting post- conviction relief. See Murdock v. State, 426 S.E.2d 740 (S.C. 1992) (counsel's performance held deficient for purposes of granting post-conviction relief where, upon counsel's advice, petitioner pled guilty to possession of a "counterfeit" substance with intent to distribute and petitioner did not commit any offense because he was only in possession of "imitation" drugs and it is not criminal to possess "imitation" drugs with the intent to distribute).54
Petitioner contends that Ms. Whitner's counsel could not be expected to anticipate new developments in the law. Pet. Brf. at 14. But Ms. Whitner's claim of ineffective assistance of counsel rests not only her trial attorney's failure to advise her that she had been charged with a non-existent crime but also her attorney's failure to do even the most minimal research. Ms. Whitner's counsel, by her own admission, did not even bother to look up the crime with which her client was charged, let alone investigate its prior application. App. at 41 ("I don't think I ever pulled the book out."). See also Statement of Facts, supra. Trial counsel's failure to perform even the most basic research or consider the question of the statute's applicability constitutes ineffective assistance of counsel.
In Stone v. State, 294 S.C. 286, 363 S.E.2d 903, 904 (1988), this Court found that where an attorney never deliberated about requesting a particular jury instruction, such failure to consider various options in and of itself constituted ineffective assistance of counsel. The Court found that "[t]he attorney made no decision at all, he stated he never considered requesting the charge." Id. Similarly here, by her own testimony, trial counsel never even considered challenging the novel application of the child abuse statute to prenatal conduct. As this Court in Stone concluded, "[t]he trial attorney's testimony itself precludes a finding that his failure to request the instruction was an informed tactical decision." Id.
Counsel was ineffective not only because she failed to advise Ms. Whitner that even if she lost on a motion to dismiss, there were numerous other motions by which she could have suppressed key evidence at trial in her case.55
Clearly, but for counsel's ineffective assistance, Ms. Whitner would not have pled guilty. Instead, she would have insisted upon making a motion to dismiss the indictment. There can be no doubt that counsel's errors were so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Because the record provides ample support for the PCR court's conclusion regarding Ms. Whitner's counsel, its decision should be affirmed.
For all the foregoing reasons, and because there is ample evidence supporting the lower court's ruling on Ms. Whitner's application for post-conviction relief, we respectfully request that this Court affirm the decision below, vacating Ms. Whitner's sentence.
Lynn M. Paltrow* C. Rauch Wise
Susan J. Weiler** American Civil Liberties
Center for Reproductive Union of South Carolina
Law & Policy Foundation, Inc.
120 Wall Street 408 Main Street
New York, NY 10005 Greenwood, SC 29646
(212) 514-5534 (803) 229-5010
Diane Curtis, on the brief
S. C. Bar No. 006188
*Admitted Pro Hac Vice by
Order of this Court
(April 19, 1994)
**Admitted to the Bar of the State of New York
Dated: September 27, 1994