State v. McLauren, 3483.

Decision Date29 April 2002
Docket NumberNo. 3483.,3483.
Citation563 S.E.2d 346,349 S.C. 488
CourtSouth Carolina Court of Appeals
PartiesThe STATE, Respondent, v. Brent C. McLAUREN, Appellant.

Assistant Appellate Defender Robert M. Pachak, of the South Carolina Office of Appellate Defense, of Columbia, for appellant.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, and Assistant Attorney General Melody J. Brown, all of Columbia; and Solicitor Walter M. Bailey, of Summerville, for respondent.

ANDERSON, Judge:

Brent C. McLauren, a self described "jailhouse lawyer," was convicted of the practice of law without being admitted or sworn. He was sentenced to three years, consecutive to time already being served. McLauren appeals, arguing: (1) the trial judge erred in allowing him to represent himself; and (2) S.C.Code Ann. § 40-5-310 should not be construed to prohibit "jailhouse lawyers" from helping, without compensation, inmates draft post-conviction relief ("PCR") applications. We affirm.

FACTS/PROCEDURAL HISTORY

McLauren was an inmate at the Allendale Correctional Institution. McLauren filed a PCR application on behalf of Mark E. Rourk, also an inmate at the Allendale Correctional Institution. The PCR application stated that it had been completed by "Brent C. McLauren, Jr., Esq. ... Of Legal Counsel to Petitioner." The application included a cover letter that stated "Brent C. McLauren, Jr., Esq." The documents submitted included a PCR application, a memorandum of law, motions, an affidavit of service, and a statement of legal counsel. The documents were filed in Dorchester County. McLauren is not and never has been a licensed attorney in South Carolina.

McLauren was indicted for the violation of S.C.Code Ann. § 40-5-310. Section 40-5-310 states:

No person may practice or solicit the cause of another person in a court of this State unless he has been admitted and sworn as an attorney. A person who violates this section is guilty of a felony and, upon conviction, must be fined not more than five thousand dollars or imprisoned not more than five years, or both.

At trial, McLauren represented himself. The judge appointed Marva Hardee—Thomas of the Dorchester County Public Defender's Office to assist McLauren and sit at the table with him during the trial. Following a jury trial, McLauren was found guilty. He was sentenced to three years, consecutive to the time he was already serving. McLauren appeals.

ISSUES

I. Did the trial court err in allowing McLauren to represent himself without determining if the waiver of counsel was valid?
II. Should § 40-5-310 be construed to prohibit "jailhouse lawyers" from helping, without compensation, inmates draft PCR applications?
III. Did the trial judge err by denying McLauren's motion for directed verdict?
LAW/ANALYSIS
I. Pro Se Representation/Waiver of Right to Counsel

McLauren argues the trial court erred in allowing him to represent himself without determining if his waiver of counsel was valid. We disagree.

At McLauren's arraignment, the following colloquy occurred in connection with McLauren's representation:

The Court: Mr. McLauren, do you have an attorney?
McLauren: No, [Y]our Honor. I would, in fact, elect to represent myself in this matter.
The Court: All right. I'll be glad to let you represent yourself. We got some old sayings which I'm sure you're familiar with—
McLauren: Yes, Your Honor, I am.
The Court:—about representing yourself. But you're entitled to an attorney if you can't afford one. I'll be glad to give you one. I've got some good attorneys in the courtroom if you'd like, but if you would like to waive that. . . .
McLauren: I would waive that, Your Honor.
The Court: All right, sir. Go ahead.

After McLauren pleaded not guilty, the trial judge offered to appoint an attorney to assist him. McLauren stated he did not think it would be necessary. The following exchange occurred:

The Court: All right, sir. Well, would you like me to—the site is here in this county, and I've got some good attorneys out there. And you don't have to use them, but would you like me to appoint one to assist you in any way they can?
McLauren: I don't think that would be necessary, Your Honor.
The Court: Let me tell you what I'm going to do.
McLauren: Okay.
The Court: Just to be on the safe side[,] I'm going to appoint a young lady who I watched from starting her practice when she finished law school, as a matter of fact. She tried many cases in here. Turn around and see her, that's Ms. Thomas right there. I'm going to appoint her to represent you. But she'll confer with you. And if you want to at the appropriate time defend yourself, I'll just have her there to give you any advice that you feel like you would like to have.

McLauren represented himself throughout the trial with Hardee-Thomas at the defense table. He was found guilty.

"It is well-established that an accused may waive the right to counsel and proceed pro se." State v. Brewer, 328 S.C. 117, 119, 492 S.E.2d 97, 98 (1997)

(citing, inter alia, Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) and State v. Dixon, 269 S.C. 107, 236 S.E.2d 419 (1977)). "Although a defendant's decision to proceed pro se may be to the defendant's own detriment, it `must be honored out of that respect for the individual which is the lifeblood of the law.'" Id. (quoting Faretta, 422 U.S. at 834,

95 S.Ct. at 2541).

"The trial judge has the responsibility to ensure that the accused is informed of the dangers and disadvantages of self-representation, and makes a knowing and intelligent waiver of the right to counsel." Id. (citing Faretta and Dixon). "The ultimate test of whether a defendant has made a knowing and intelligent waiver of the right to counsel is not the trial judge's advice, but the defendant's understanding." Id. (citing Graves v. State, 309 S.C. 307, 422 S.E.2d 125 (1992)).

"When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must `knowingly and intelligently' forgo those relinquished benefits." Faretta, 422 U.S. at 835,95 S.Ct. at 2541 (citations omitted). To establish a valid waiver of counsel, Faretta requires the accused be: (1) advised of his right to counsel; and (2) adequately warned of the dangers of self-representation. Bridwell v. State, 306 S.C. 518, 413 S.E.2d 30 (1992); Prince v. State, 301 S.C. 422, 392 S.E.2d 462 (1990); see also Wroten v. State, 301 S.C. 293, 294, 391 S.E.2d 575, 576 (1990)

("Faretta requires that a defendant `be made aware of the dangers and disadvantages of self-representation so that the record will establish he knows what he is doing and his choice is made with eyes open.'") (citation omitted). In the absence of a specific inquiry by the trial judge addressing the disadvantages of a pro se defense as required by the second Faretta prong, the appellate court will look to the record to determine whether petitioner had sufficient background or was apprised of his rights by some other source. Bridwell, 306 S.C. at 519,

413 S.E.2d at 31; Prince v. State, 301 S.C. at 424, 392 S.E.2d at 463.

Factors the courts have considered in determining if an accused had sufficient background to understand the disadvantages of self-representation include:

(1) the accused's age, educational background, and physical and mental health;
(2) whether the accused was previously involved in criminal trials;
(3) whether he knew of the nature of the charge and of the possible penalties;
(4) whether he was represented by counsel before trial or whether an attorney indicated to him the difficulty of self-representation in his particular case;
(5) whether he was attempting to delay or manipulate the proceedings;
(6) whether the court appointed stand-by counsel;
(7) whether the accused knew he would be required to comply with the rules of procedure at trial;
(8) whether he knew of legal challenges he could raise in defense to the charges against him;
(9) whether the exchange between the accused and the court consisted merely of pro forma answers to pro forma questions; and
(10) whether the accused's waiver resulted from either coercion or mistreatment.

State v. Cash, 309 S.C. 40, 43, 419 S.E.2d 811, 813 (Ct.App. 1992) (citing Fitzpatrick v. Wainwright, 800 F.2d 1057 (11th Cir.1986) and Strozier v. Newsome, 926 F.2d 1100 (11th Cir. 1991)).

Given McLauren's background and understanding of the legal system and legal rights, in addition to the nature of the charge and the language that he used at trial, we find McLauren made a valid waiver. We consider the Cash factors as follows:

First, McLauren was a mature man with both formal and informal education. There was no evidence in the record of any physical or mental impairment.

Second, McLauren had previously been involved in criminal proceedings. The record indicates he had a criminal record dating back to 1965. At the time of trial, he was serving time in jail for unrelated charges.

In addition to his involvement in criminal proceedings as a defendant, the evidence indicated McLauren was involved in the criminal proceedings of other individuals at Allendale Correctional Institution. Out of the presence of the jury, McLauren told the judge, "And I have no problem with admitting that I'm a jailhouse lawyer...." Kenneth Long, inmate grievance coordinator at Allendale Correctional Institution, testified that he was aware McLauren assisted other prisoners with legal work. Lieutenant Louis Farris, also an employee of Allendale Correctional Institution, stated he had heard that McLauren often gave and rendered assistance to other prisoners. Five prisoners each testified about McLauren's assistance to themselves or others in the jail.

Third, McLauren knew of the nature of the charge. At trial, McLauren...

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