THIS OPINION HAS NO PRECEDENTIAL VALUE.� IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Mario Benson, Respondent

v.

State of South Carolina, Petitioner

Appeal From Spartanburg County
J. Mark Hayes, II, Circuit Court Judge

Unpublished Opinion No. 2007-UP-523
Submitted October 1, 2007 � Filed November 13, 2007

REVERSED

Assistant Attorney General Lance S. Boozer and Assistant Deputy Attorney General Salley W. Elliott, both of Columbia, for Petitioner.

Assistant Appellate Defender Robert Pachak, of Columbia, for Respondent.

PER CURIAM:� Mario Benson filed a petition for post-conviction relief (PCR). �Granting Benson�s petition, the trial court ordered a new trial.� The State petitioned this court for certiorari.� The parties briefed the issues and after review, we reverse.[1]

FACTS

Benson pled guilty to two counts of trafficking crack cocaine and one count of possession with intent to distribute crack cocaine. �After a plea hearing, the trial judge sentenced Benson to concurrent imprisonment terms of fifteen years on each trafficking charge and ten years on the possession charge. �Benson did not appeal.�

Benson later filed this PCR action alleging, among other claims, that his counsel was ineffective in:� 1) failing to properly investigate a search and seizure issue; and 2) failing to advise Benson of his right to challenge the search and seizure at a trial.�

At the plea hearing, Benson admitted telling his counsel one version of the underlying facts.� The judge questioned Benson about whether counsel explained potential defenses.� Plea counsel confirmed, stating:� �[W]e discussed the exclusion of evidence and the possibilities there and discussed perhaps the legal searches and seizures.�� Benson agreed, stating: ��I recall we talked about search and seizure.� �Benson then admitted he did not have a defense and knew of no reason why he should not be found guilty.� The judge explained Benson�s rights to him and the solicitor recited the facts.

The recital indicated that following a traffic stop on February 3, 1999, Benson consented to a vehicle search resulting in the discovery of crack cocaine.� The solicitor also stated that on June 9, 2000, the police stopped Benson after receiving information from a confidential informant that Benson was transporting drugs. �Benson gave the officers permission to search his vehicle and person. �When nothing was located, Benson allowed the officers to search his residence and �basically told [the officers] where the drugs were located.�� Benson agreed with the facts as presented and pled guilty.

At the PCR hearing, Benson argued plea counsel failed to investigate. �Additionally, Benson provided a different version of the underlying facts.� Under this version, Benson�s first stop occurred as a result of his speeding.

The officer found Benson had an outstanding arrest warrant and placed him in the back of the patrol car.� Benson then consented to a search of the car. �The search turned up a film canister containing drugs.�

As to the second search, Benson testified he was stopped as a result of a confidential informant�s tip. �Benson allowed the officers to search his car and when they found nothing they searched Benson�s person and found a key. �Using the key, the officers attempted to open four different apartments.� The key fit the door to Benson�s girlfriend�s apartment.� Benson stated the officers found the drugs in her apartment only after interrogating Benson and threatening to arrest his girlfriend and take his child. �Benson admitted to ownership of the drugs.�

Benson alleged he told his plea counsel this version of the facts and argued counsel was ineffective for failing to investigate and failing to move for suppression of the drugs and Benson�s confession.� Benson averred his counsel never told him of his right to have a suppression hearing and if he had known he would not have pled guilty. �When questioned regarding his admittance of the facts as presented at the plea hearing he stated:� �Well, I didn�t know I was violated � my Constitutional rights were violated.� I was ignorant of the law and I didn�t know and I was thinking I was going to do five years of a fifteen year sentence.��

Plea counsel testified at the PCR hearing stating the facts as recited at the plea hearing were as described to him by Benson and consistent with the incident reports.� Also, counsel testified that if Benson had wanted to go to trial, counsel would have filed a motion to suppress.���

The PCR court found trial counsel ineffective for failure to investigate and properly advise Benson that a motion to exclude would have been successful based on: �1) an unlawful detention by the officers after a routine traffic stop; and 2) an illegal warrantless search.� The court also found the State offered no evidence on the legality of the search other than the testimony of the plea counsel. �The court thus granted PCR and ordered a new trial.

STANDARD OF REVIEW

The appellate court gives great deference to the post-conviction relief court�s findings of fact and conclusions of law.� Dempsey v. State, 363 S.C. 365, 368, 610 S.E.2d 812, 814 (2005). �On review, a PCR judge�s findings will be upheld if there is any evidence of probative value sufficient to support them. �Cherry v. State, 300 S.C. 115, 119, 386 S.E.2d 624, 626 (1989).� The Court will not uphold the findings when there is no probative evidence to support them.� Holland v. State, 322 S.C. 111, 113, 470 S.E.2d 378, 379 (1996).�

LAW/ANALYSIS

The State contends the PCR court erred in finding there was probative evidence to support Benson�s claims that plea counsel was ineffective and that Benson should receive a new trial.� We agree.�

When alleging ineffective assistance of counsel after a guilty plea, an applicant in a PCR action must show:� 1) counsel�s representation fell below an objective standard of reasonableness; and 2) but for counsel�s unprofessional errors, there is a reasonable probability the applicant would not have pled guilty but would have insisted upon going to trial.� Jordan v. State, 297 S.C. 52, 54, 374 S.E.2d 683, 684 (1988).� The burden is on the applicant in a post-conviction proceeding to prove the allegations in his application.� Butler v. State, 286 S.C. 441, 442, 334 S.E.2d 813, 814 (1985).�

The PCR court essentially found plea counsel ineffective for failure to investigate and failure to request a suppression hearing based on the applicant�s testimony at the PCR hearing.[2]� We conclude the focus must be on whether the plea counsel was ineffective based on the knowledge he had at the time of the plea.� See Harres v. Leeke, 282 S.C. 131, 133, 318 S.E.2d 360, 361 (1984) (review of a PCR action arising from a guilty plea requires an examination of the records of both the plea proceeding and the PCR hearing).

The record does not contain probative evidence to support the finding that plea counsel was ineffective in failing to investigate and file a motion to suppress based on the facts evident at the time of the plea hearing.� Benson admitted to the State�s version of the facts at the plea hearing.� These facts were consistent with the incident reports and plea counsel�s PCR testimony recollecting his knowledge at the time of the plea hearing. �The routine nature of a plea hearing is not an invitation to answer queries untruthfully.� Wolfe v. State, 326 S.C. 158, 164-65, 485 S.E.2d 367, 370-71 (1997).� Furthermore, counsel error is generally cured by an applicant�s acknowledgements at a plea hearing.� See id. (finding any possible error by trial counsel cured by applicant�s acknowledgements at the plea hearing).� Here, because Benson acknowledged at the plea hearing that the facts were as recited by the solicitor, there was no need for counsel to investigate or move to suppress the evidence.� Ergo, we find no ineffective representation of counsel.��

Moreover, we find that plea counsel�s negotiations on Benson�s behalf proved advantageous.� The plea court accepted the negotiated plea of fifteen years imprisonment for the trafficking offenses and ten years on the possession with intent to distribute offense, all to run concurrently.� These offenses carry maximum terms that could have resulted in sentences requiring Benson to serve a much longer prison term.� See Bright v. State, 365 S.C. 355, 359-60, 618 S.E.2d 296, 298 (2005) (considering trial counsel�s plea negotiation efforts and results in PCR action alleging ineffective assistance of counsel).

Accordingly, the order granting PCR and a new trial is

REVERSED.

HEARN, C.J., STILWELL, J., and GOOLSBY, A.J., concur.

[1] We decide this case without oral argument pursuant to Rule 215, SCACR.

[2]�We note the ultimate issues regarding the legality of the stops, searches, and admissibility of the evidence were not proper for consideration on post-conviction relief.� See Simmons v. State, 264 S.C. 417, 422-23, 215 S.E.2d 883, 885 (1975) (finding post-conviction relief action not proper forum to determine sufficiency of evidence issue).�