Osbey v. State

• Citation: 825 S.E.2d 48
• Decision Date: 06 March 2019
• Docket Number: Appellate Case No. 2017-001038,Opinion No. 27866
• Parties: Robert OSBEY, Petitioner, v. STATE of South Carolina, Respondent.
• Court: United States State Supreme Court of South Carolina

825 S.E.2d 48

Robert OSBEY, Petitioner,

v.STATE of South Carolina, Respondent.

Appellate Case No. 2017-001038

Opinion No. 27866

Supreme Court of South Carolina.

Submitted November 15, 2018

Filed March 6, 2019

Appellate Defender LaNelle Cantey DuRant, of Columbia, for Petitioner.

Attorney General Alan McCrory Wilson, and Assistant Attorney General Jordan Adraine Cox, both of Columbia, for Respondent.

JUSTICE FEW :

Robert Osbey pled guilty to criminal charges without counsel. He later applied for post-conviction relief (PCR) on the ground he did not waive his right to counsel. We reverse the denial of his PCR claim because the record does not reflect a valid waiver of Osbey's right to counsel. In particular, the plea court did not ensure Osbey was aware of the dangers of self-representation. We remand to the court of general sessions for a new trial.

I. Facts and Procedural History

The State charged Osbey with two counts of trafficking in cocaine base and one count of possession with intent to distribute cocaine base. The charges stem from two incidents in which Osbey allegedly sold crack cocaine to a confidential informant. Osbey pled guilty almost a year after his arrest, without counsel. The plea court informed him of his right to counsel, and noted Osbey had previously been informed by a court official on three separate occasions that if he wanted to have a public defender appointed he would have to contact the public defender's office and submit an application. The plea court then asked, "Did you knowingly and intelligently make the decision not to have a lawyer assist you?" Osbey responded, "No, sir. I was trying to get one." Osbey explained he went to the public defender's office the week before but was told it was too late.

The plea court ruled,

I find ... that you have knowingly waived your right to counsel by your conduct, having known and been advised that you could have an appointed lawyer but you needed to contact the public defender's office so that they could accept your application. And in a year's time ... you failed to do that. So, you have waived your right to counsel.

Osbey pled guilty to his charges, and the plea court sentenced him to eight years in prison, followed by three years of probation. Osbey did not appeal.

Osbey filed a PCR application on the ground he "did not knowingly and voluntarily waive his right to counsel." At the PCR hearing, Osbey's PCR counsel stated, "This was a pro se plea ..., but there was nothing on the record that Mr. Osbey was warned about the dangers of self-representation .... There is no evidence he had sufficient understanding for his actions to amount to a knowing and voluntary waiver of counsel." The PCR court found "the plea judge was correct in finding [Osbey] knowingly and voluntarily waived his right to counsel." We granted Osbey's petition for a writ of certiorari.

II. Analysis

A defendant in a criminal case "has the right to the assistance of counsel." State v. Justus , 392 S.C. 416, 419, 709 S.E.2d 668, 670 (2011) (citing U.S. CONST . amend. VI ; Gideon v. Wainwright , 372 U.S. 335, 340-41, 83 S.Ct. 792, 794, 9 L.Ed.2d 799, 802-03 (1963) ). The defendant may waive his right to counsel, but he must do so knowingly and intelligently. Faretta v. California , 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562, 581 (1975). For a knowing and intelligent waiver to occur, the defendant must be "(1) advised of his right to counsel; and (2) adequately warned of the dangers of self-representation." Prince v. State , 301 S.C. 422, 423-24, 392 S.E.2d 462, 463 (1990) (citing Faretta , 422 U.S. at 835, 95 S.Ct. at 2541, 45 L.Ed.2d at 581-82 ). A defendant may waive counsel "by an affirmative, verbal request," or a defendant's actions may constitute a "waiver by conduct." State v. Roberson , 382 S.C. 185, 187, 675 S.E.2d 732, 733 (2009).

The plea court found Osbey waived his right to counsel "by [his] conduct" because Osbey did not seek counsel after being told three separate times he needed to contact the public defender's office.¹ By definition, "A waiver is a voluntary and intentional abandonment or relinquishment of a known right." Sanford v. S.C. State Ethics Comm'n , 385 S.C. 483, 496, 685 S.E.2d 600, 607 (citing Eason v. Eason, 384 S.C. 473, 480, 682 S.E.2d 804, 807 (2009) ), opinion clarified on other grounds , 386 S.C. 274, 688 S.E.2d 120 (2009). "Waiver requires a party to have known of a right and known that right was being abandoned." 385 S.C. at 496-97, 685 S.E.2d at 607. Any waiver, therefore, including a waiver of counsel "by conduct," must be knowing and intelligent. For a waiver to be "knowing and intelligent," the defendant "should be made aware of the dangers and disadvantages of self-representation." Faretta , 422 U.S. at 835, 95 S.Ct. at 2541, 45 L.Ed.2d at 581-82 ; Prince , 301 S.C. at 423-24, 392 S.E.2d at 463. The Faretta and Prince requirement applies to any waiver, whether the waiver is alleged to be by "affirmative, verbal request" or "by conduct." See Goldberg , 67 F.3d at 1100, 1101 (requiring Faretta warnings for a valid waiver by conduct); State v. Jones , 772 N.W.2d 496, 505 (Minn. 2009) ("The same colloquy required for affirmative waivers must also be given before a defendant can be said to have waived his right to counsel by conduct." (citing Goldberg , 67 F.3d at 1100 )).

In Gardner v. State , 351 S.C. 407, 570 S.E.2d 184 (2002), this Court held the Faretta and Prince requirement of warning the defendant of the dangers of self-representation applies to waiver by conduct. The PCR court found the petitioner's conduct amounted to a waiver of his right to counsel. 351 S.C. at 410, 570 S.E.2d at 185. We explained the petitioner knew he might lose his right to counsel if he failed to obtain counsel prior to his guilty plea. 351 S.C. at 410-11, 570 S.E.2d at 185-86. We reversed, however, finding, "Petitioner was not adequately apprised of the dangers of self-representation." 351 S.C. at 412, 570 S.E.2d at 186.

In this case, the plea court did not mention to Osbey the dangers of self-representation. When this happens, we look to the record to determine if it shows the factual basis for the waiver. See, e.g. , Gardner , 351 S.C. at 412, 570 S.E.2d at 186 ("In a PCR action, if the record fails to demonstrate the petitioner made an informed choice to proceed pro se, with ‘eyes open,’ then the petitioner did not make a knowing and voluntary waiver of counsel, and the case should be remanded for a new trial."); Prince , 301 S.C. at 424, 392 S.E.2d at 463 (finding no valid waiver because the record "[did] not demonstrate petitioner was sufficiently aware of the dangers of self-representation"). Osbey has two prior convictions for possession with intent to distribute cocaine base. He also violated his probation in 2004 and violated parole in 2007. There is nothing else in the record to indicate Osbey was aware of the dangers of representing himself. We find this is an insufficient basis on which to find Osbey actually understood the dangers of self-representation.

The State argues, relying on Roberson , a defendant need not be warned of the dangers of self-representation in a waiver by conduct case, only when the defendant expressly asserts his right to self-representation. In Roberson , this Court held the defendant waived his right to counsel by his conduct even though he was not warned of the dangers of self-representation. 382 S.C. at 188, 675 S.E.2d at 734. We found "both Prince and Faretta inapplicable" because those cases "addressed defendants who elected self-representation." 382 S.C. at 188, 675 S.E.2d at 733. Today, we cannot reconcile our statement in Roberson that Faretta and Prince are inapplicable to a waiver by conduct case with the clear and unmistakable authority discussed above—including Gardner —that they are applicable. Perhaps the result of Roberson can be justified on the basis of forfeiture.² However, to the extent Roberson is in conflict with the requirement that the defendant's knowledge and understanding of the dangers of self-representation is a necessary predicate to any waiver of counsel, we overrule it.

III. Conclusion

Osbey did not waive his right to counsel by conduct because Osbey was not warned of the dangers of self-representation. The decision of the PCR court is REVERSED and the case is remanded to the court of general sessions for a new trial.

BEATTY, C.J., KITTREDGE and HEARN, JJ., concur. JAMES, J., concurring in a separate opinion in which KITTREDGE, J., concurs.

JUSTICE JAMES :

I concur with the reasoning of the majority, but I write separately to point out practical issues facing the circuit court when the unrepresented defendant appears for plea or trial.

The deeper problem facing the circuit court in any given case is that there is typically no clear way to verify whether Faretta warnings have ever been given to the unrepresented defendant. Perhaps the ideal time for giving Faretta warnings to the unrepresented defendant would be during either the defendant's first appearance or second appearance. However, first appearances are typically conducted with neither a judge nor a court reporter being present; therefore, even if the warnings were then given, there would be no record they were then given or by whom they were given. Second appearances are usually conducted in the presence of a circuit judge, but more often than not, a court reporter is not present. Therefore, there is typically no record of the warnings being given during a second appearance. Even if a court reporter was present during a first appearance, a second appearance, or during some other transcribed proceeding, there would be no occasion for a transcript to be requested or typed until the time for appeal or the commencement of a PCR application. That is of no help to the circuit judge before whom the defendant appears for an imminent trial or plea. If, immediately prior to trial or plea, the unrepresented defendant claims he was not given Faretta ...