State v. McLauren, No. 3483.

CourtCourt of Appeals of South Carolina
Writing for the CourtANDERSON.
Citation563 S.E.2d 346,349 S.C. 488
PartiesThe STATE, Respondent, v. Brent C. McLAUREN, Appellant.
Decision Date29 April 2002
Docket NumberNo. 3483.

349 S.C. 488
563 S.E.2d 346

The STATE, Respondent,
v.
Brent C. McLAUREN, Appellant

No. 3483.

Court of Appeals of South Carolina.

Heard April 10, 2002.

Decided April 29, 2002.


349 S.C. 490
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)

349 S.C. 491
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?
349 S.C. 492
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.
349 S.C. 493
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.

349 S.C. 494
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

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27 practice notes
  • State v. Stanley, No. 4007.
    • United States
    • United States State Supreme Court of South Carolina
    • June 27, 2005
    ...with the existence or nonexistence of evidence, not its weight. State v. Cherry, 361 S.C. 588, 606 S.E.2d 475 (2004); State v. McLauren, 349 S.C. 488, 563 S.E.2d 346 If there is any direct evidence or substantial circumstantial evidence reasonably tending to prove the guilt of the accused, ......
  • Gary v. Cartledge, Case No. 8:14-2551-TMC-JDA
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • July 29, 2015
    ...whatsoever of one or more elements of the charged offense. State v. McCluney, 606 S.E.2d 485, 486 (S.C. 2004); State v. McLauren, 563 S.E.2d 346, 351 (S.C. 2002). The trial court may not weigh the sufficiency of the evidence. McLauren, 563 S.E.2d at 351. In other words, if the prosecution h......
  • State v. Crawford, No. 3933.
    • United States
    • Court of Appeals of South Carolina
    • January 31, 2005
    ...State v. Cherry, 361 S.C. 588, 606 S.E.2d 475 (2004); State v. Wilds, 355 S.C. 269, 584 S.E.2d 138 (Ct.App.2003); State v. McLauren, 349 S.C. 488, 563 S.E.2d 346 (Ct.App.2002). If there is any direct evidence or substantial circumstantial evidence reasonably tending to prove the guilt of th......
  • State v. Pride, 2007-UP-544
    • United States
    • Court of Appeals of South Carolina
    • February 20, 2007
    ...in order to represent himself, the accused must ‘knowingly and intelligently' forgo those relinquished benefits.” State v. McLauren, 349 S.C. 488, 493, 563 S.E.2d 346, 348 (Ct. App. 2002) (quoting Faretta, 422 U.S. at 835). Although a defendant need not himself have the skill experience of ......
  • Request a trial to view additional results
27 cases
  • State v. Stanley, No. 4007.
    • United States
    • United States State Supreme Court of South Carolina
    • June 27, 2005
    ...with the existence or nonexistence of evidence, not its weight. State v. Cherry, 361 S.C. 588, 606 S.E.2d 475 (2004); State v. McLauren, 349 S.C. 488, 563 S.E.2d 346 If there is any direct evidence or substantial circumstantial evidence reasonably tending to prove the guilt of the accused, ......
  • Gary v. Cartledge, Case No. 8:14-2551-TMC-JDA
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • July 29, 2015
    ...whatsoever of one or more elements of the charged offense. State v. McCluney, 606 S.E.2d 485, 486 (S.C. 2004); State v. McLauren, 563 S.E.2d 346, 351 (S.C. 2002). The trial court may not weigh the sufficiency of the evidence. McLauren, 563 S.E.2d at 351. In other words, if the prosecution h......
  • State v. Crawford, No. 3933.
    • United States
    • Court of Appeals of South Carolina
    • January 31, 2005
    ...State v. Cherry, 361 S.C. 588, 606 S.E.2d 475 (2004); State v. Wilds, 355 S.C. 269, 584 S.E.2d 138 (Ct.App.2003); State v. McLauren, 349 S.C. 488, 563 S.E.2d 346 (Ct.App.2002). If there is any direct evidence or substantial circumstantial evidence reasonably tending to prove the guilt of th......
  • State v. Pride, 2007-UP-544
    • United States
    • Court of Appeals of South Carolina
    • February 20, 2007
    ...in order to represent himself, the accused must ‘knowingly and intelligently' forgo those relinquished benefits.” State v. McLauren, 349 S.C. 488, 493, 563 S.E.2d 346, 348 (Ct. App. 2002) (quoting Faretta, 422 U.S. at 835). Although a defendant need not himself have the skill experience of ......
  • Request a trial to view additional results

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