PCR – trafficking cocaine plea overturned

In Kolle v. State, released February 16, the S.C. Supreme Court upheld a grant of post conviction relief, overturning a guilty plea to trafficking cocaine in a North Myrtle Beach case.
Kolle pled guilty on the advice of his attorney and was sentenced to seven years in prison, the minimum sentence for trafficking in cocaine 28 to 100 grams, first offense. His defense lawyer had been practicing for three years, but had never handled a felony case before. The lawyer advised Kolle to turn down a plea offer for five years until after the suppression hearing, telling him that the offer would still be available (it was not).
The lawyer relied on the documents that the solicitor’s office had provided to the public defender who had the case before him, and did not obtain complete discovery before arguing the suppression motion. The officers in the case had responded to a loud music complaint, then entered the apartment without a warrant when no-one answered the door, claiming that there were exigent circumstances:

Because there were lights on in the apartment and no one answered his knocks, Officer Canfora “presumed that there may be something wrong inside the apartment . . . that somebody was in the residence, maybe injured or incapacitated.”

At some point they went and got a search warrant, after they discovered cocaine in the apartment. During the suppression hearing, Kolle’s defense lawyer failed to point out to the trial judge serious discrepancies in the testimony of the officers:

In recounting the suppression hearing, plea counsel conceded that he did not point out the discrepancies between the officers’ testimony and the documentary evidence, which included the incident reports, the search warrant, and the police call logs. Specifically, PCR counsel established that plea counsel failed to question the officers regarding the following time discrepancies: the call/dispatch log indicated the loud music complaint was received at 12:43 a.m.; Officer Canfora arrived at the apartment at 12:48 a.m.; the search warrant appears to indicate it was issued at 12:01 a.m. and executed at 12:43 a.m. Plea counsel admitted that he did not have this documentary evidence in his file. He further acknowledged that he never requested the lab report or the chain of custody report regarding the cocaine that was seized pursuant to the search warrant

If the defense lawyer had investigated and prepared the case for trial, there was a substantial likelihood that the cocaine would have been suppressed. If the defense lawyer had presented all relevant evidence at the suppression hearing and suppression was denied, he still would have had to try the case to preserve the issue and appeal to the Court of Appeals.
Some lessons from this case – if you take over a case from the public defender’s office, do not rely on the discovery in their file. Do not rely on the first discovery that is sent out in any case – there is almost always something that the prosecutor is not providing or that can be obtained from law enforcement’s files.
Don’t assume that a suppression hearing is a foregone conclusion – when you get into the details of a case you might be surprised. Law enforcement often cuts corners, and then tries to fix it later with testimony tailored for court. And, believe it or not, there are circuit court judges in South Carolina who care about the Constitution and who will not automatically rule in favor of the state.

3 Responses to “PCR – trafficking cocaine plea overturned

  • lamar kolle
    9 years ago

    Thank you for speaking on behalf on the need for a more thorough investigation of the facts in criminal cases. The truth of the matter is that justice has been percverted to the point that many law officials believe that any means necessary, even perjury, evidence tampering and evidence concealment isjustified to gain a conviction. This type of action perverts the rudimentary demands ofjusticeand produces an unjust, unconstitutional result.

  • I agree. Thank you.

  • watch out if anyone has to go to court at the moss justic there are a lot of crooked cops and judge and our d.a. it best to get a lawyer out of town.these people up here will cut corner anyway they can not to give you a fair trial.

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