OPINIONS

Continued From Page 25 district court exceeded its discretion by imposing it.

Finally, the district court’s imposition of lifetime supervision was recommended by the Federal Sentencing Guidelines upon defendant’s initial conviction for distribution of child pornography. Having concluded defendant breached the court’s trust—and, in doing so, squandered the sentencing court’s initial leniency on this point—the district court did not act unreasonably in imposing the duration of supervision the Guidelines had recommended in the first place.

Affirmed in part; vacated and remanded in part.

United States v. Cohen (Lawyers Weekly No. 001-037-23, 12 pp.) (Toby Heytens, J.) No. 21-4612. Appealed from USDC at Charleston, S.C. (Bruce Hendricks, J.) Jeremy Thompson for appellant; Elliott Bishop Daniels, Corey Ellis and Andrew de Holl for appellee. 4th Cir.

Criminal Practice

PCR – Ineffective Assistance – Prison Attire with Shackles

Petitioner’s trial counsel provided ineffective assistance when counsel failed to object when petitioner appeared at trial in prison attire and had his shackles removed in the presence of the jury. Overwhelming evidence is only one factor to consider when determining whether a petitioner has been prejudiced.

We reverse the post-conviction relief court’s denial of the petition and remand for a new trial.

At his trial for operating a motor vehicle in violation of the Habitual Traffic Offender Act, petitioner wore, not only prison attire with the name of the prison stamped on the back, but also handcuffs and shackles. Petitioner’s leg irons were removed in front of the jury. Petitioner’s trial counsel did not object.

The PCR judge found no prejudice because there was overwhelming evidence against petitioner.

However, the existence of overwhelming evidence does not automatically preclude a finding of prejudice. Rather, in a PCR court’s analysis of prejudice, the strength of the state’s case is one significant factor the PCR court must consider—along with the specific impact of counsel’s error and other relevant considerations—in determining whether the petitioner has met his burden of proving prejudice. For the evidence to be overwhelming such that it categorically precludes a finding of prejudice, the evidence must include something conclusive, such as a confession, DNA evidence demonstrating guilt, or a combination of physical and corroborating evidence so strong that the Strickland standard – a reasonable probability the factfinder would have had a reasonable doubt – cannot possibly be met.

Here, there was no attempt by the PCR court to balance the impact of petitioner’s forced appearance at his trial in prison clothing against the strength of the state’s evidence against him.

Nevertheless, the Constitution forbids the use of visible shackles during the penalty phase, as it forbids their use during the guilt phase, unless that use is justified by an essential state interest—such as interest in courtroom security— specific to the defendant on trial.

We find petitioner’s objection to his “attire” encompasses his handcuffs and shackles. Balancing the impact of petitioner’s forced appearance at his trial in prison clothing visible to the jury against the strength of the state’s evidence against him, there is a reasonable probability that, but for trial counsel’s failure to object to his appearance at this trial in prison clothing, the result of the proceeding would have been different. Thus, we find trial counsel was ineffective for not objecting to petitioner proceeding to trial dressed in prison attire and for not requesting a continuance to provide proper clothing for petitioner.

Reversed and remanded.

Ryals v. State (Lawyers Weekly No. 011016-23, 6 pp.) (Paula Thomas, J.) Appealed from Berkeley County Circuit Court (Michael Nettles, J.) David Alexander for petitioner; William Blitch and Danielle Dixon for respondent. S.C. App.

Insurance

Auto – UIM – Stacking – ‘Involved’ –Remote Unlocking

Plaintiff was struck by an underinsured vehicle while he was walking to his own vehicle; however, at the time of the accident, plaintiff had not yet reached his vehicle or physically engaged with it besides unlocking it remotely from across the parking lot. Consequently, plaintiff’s vehicle was not “involved in” the accident within the meaning of S.C. Code Ann. § 38-77-160 as that term was defined in Merck v. Nationwide Mut. Ins. Co., 455 S.E.2d 697 (S.C. 1995): “To relate to or have an effect on . . . to draw in as a participant . . . [to] implicate, include, affect.”

We affirm the district court’s grant of summary judgment for the defendant-insurer on plaintiff’s declaratory judgment claim, in which he sought a declaration that he could stack his underinsured motorist coverage.

Since plaintiff was not “in, on, getting into or out of” his vehicle at the time of the accident, he was also not entitled to relief under the occupancy provision of his policy.

Mims v. USAA Casualty Insurance Co. (Lawyers Weekly No. 003-008-23, 5 pp.) (Per Curiam) No. 21-1654. Appealed from USDC at Florence, S.C. (Joseph Dawson, J.) Thomas Rode for appellants; John Robert Murphy for appellee. 4th Cir. Unpub.

Municipal

Civil Rights – Takings – Real Property – Civil Practice – Statute of Limitations

The three-year statute of limitations applicable to the plaintiff-developer’s takings claim under 42 U.S.C. § 1983 began to run when, in 2015, the developer began purchasing land pursuant to the defendant-town’s special use permit, which required the developer to either set aside a portion of its development for low-income housing or pay a fee in lieu of the set-aside. The developer’s 2019 complaint was not timely filed.

We affirm the district court’s grant of the town’s motion to dismiss.

Section 1983 injuries arising from alleged takings accrue when the plaintiff becomes aware of the governmental conduct constituting the taking.

The fact that the special use permit did not require and simply permitted the developer to develop the land for the use described in the application (subject to the condition at issue) is hardly noteworthy— permitting a particular use is an essential feature of any permit. Thus, when the developer learned of the special use permit condition on its recently acquired land, its takings claim became actionable.

In North Carolina, the “continuing wrong doctrine” extends the limitations period until the violative act ceases. In other words, the applicable limitations period starts anew in the event that an allegedly unlawful act is repeated.

In arguing for the application of this doctrine, the developer conflates the nature of its state and federal law claims. While the essence of the developer’s state return-offees claim is arguably the unlawful fee payments exacted, its § 1983 injury was inflicted by the special use permit condition requiring the developer to set aside part of its property or pay the fee-in-lieu. Hence, any violation of the developer’s constitutional rights by the town would have occurred prior to when the developer actually paid the fee installments. As the district court put it, “The payments were exactly what the continuing wrong doctrine is not: the continual ill effects from an original violation laid out in the [special use permit].”

Affirmed.

Concurrence

(Rushing, J.) The developer’s federal claims allege the town imposed an unconstitutional condition on its permit—a single act. The developer’s payments pursuant to that permit were not repeated constitutional violations but rather continual ill effects of the original violation alleged.

Epcon Homestead LLC v. Town of Chapel Hill (Lawyers Weekly No. 001-038-23, 15 pp.) (Roger Gregory, C.J.) (Allison Jones Rushing, J., concurring in the judgment) No. 21-1713. Appealed from USDC at Greensboro, N.C. (Carlson Tilley, S.J.) Jeffrey Lawrence Roether and William Brian for appellant; Dan Hartzog and Katherine Barber-Jones for appellee. 4th Cir.

Schools & School Boards

IDEA – Least Restrictive Environment – Remedy – ALJ’s Findings –Regularly Made

Plaintiff’s autistic daughter, A.C., was moved from a regular high school to a high school for children with cognitive disabilities. An administrative law judge determined that the defendant-school board should have set out benchmarks or “measurable criteria that [A.C.] must meet in order for the IEP [(individualized education plan)] team to consider . . . a change to a lesser restrictive environment than [a] separate school.” The ALJ did not delegate her authority when she ordered the school board to add such criteria to A.C.’s IEP.

We affirm the district court’s decision, which upheld the ALJ’s ruling.

Even the most diligent of reviewing courts is likely to be less familiar with a child’s case and the substance and the details of educational programs than the school officials and parents who deal with such matters regularly. We thus discern no abuse of remedial discretion on the part of the district court in allowing the school board to fashion “benchmark(s) and criteria” in A.C.’s IEP indicating when she may move on from Metro School. We cannot run the school system from this distance. Lacking the background to know precisely which benchmarks and criteria would be suitable in A.C.’s case, the district court and ALJ reasonably looked to the school district to proceed in good faith to meet its statutory responsibilities.

Furthermore, the ALJ’s findings were regularly made. Plaintiff takes no issue with the process afforded her by the ALJ prior to the written decision. The ALJ took her time in this case and made findings that shed light on her reasoning.

The ALJ made nuanced factual findings, ruling in plaintiff’s favor on two issues and in the school board’s favor on others. Moreover, the ALJ spotted that one of the school board’s assertions was “contradict[ed]” by evidence. The context of the ALJ’s balanced decision lends additional support to the school district’s contention that she “g[a]ve careful consideration” to plaintiff’s witnesses and evidence.

Based on the extensive process plaintiff received in the handling of her case, as well as the detail provided in the ALJ’s written decision, we affirm the district court’s determination that the ALJ’s findings were regularly made.

Affirmed.

Bouabid v. Charlotte-Mecklenburg Schools Board of Education (Lawyers Weekly No. 001-035-23, 19 pp.) (Harvie Wilkinson, J.) No. 22-1048. Appealed from USDC at Charlotte, N.C. (Robert Conrad, J.) Kelli Lorraine Espaillat, Keith Howard and Carla Fassbender for appellant; Ashley Frances Leonard and Christopher Campbell for appellee; Ellen Saideman, Selene AlmazanAltobelli, Deborah Stagner and Stephen Rawson for amici curiae. 4th Cir.

Taxation

Sales Tax Exemptions – Machine & Pollution Control Machine – Produce Processing Facility

Although the respondent-taxpayer uses various items in its produce processing facility, those items do not meet the regulatory definitions that would allow the taxpayer a sales tax exemption as “machines” or “pollution control machines.”

We reverse the Administrative Law Court’s decision to allow respondent to take the exemptions.

The South Carolina Department of Revenue (SCDOR) argues the ALC erred in granting the “machine exemption” and

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