State v. Pride, 2007-UP-544

CourtCourt of Appeals of South Carolina
Writing for the CourtBEATTY, J.
PartiesThe State, Respondent, v. Christopher Lee Pride, Appellant.
Docket Number2007-UP-544
Decision Date20 February 2007

The State, Respondent,
v.

Christopher Lee Pride, Appellant.

No. 2007-UP-544

Court of Appeals of South Carolina

February 20, 2007


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.

Heard August 24, 2007

Submitted January 1, 2007

Withdrawn, Substituted, and Refiled December 5, 2007

Appeal From Union County John C. Hayes, III, Circuit Court Judge

Appellate Defender Robert M. Dudek, of Columbia, Fletcher N. Smith, Jr., of Greenville, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Harold M. Coombs, Jr., all of Columbia; and Solicitor Thomas E. Pope, of Rock Hill, for Respondent.

BEATTY, J.

Christopher Lee Pride was tried in absentia and without counsel for the charges of possession of crack cocaine with intent to distribute and possession of crack cocaine with intent to distribute within the proximity of a school. After the jury convicted Pride of both offenses, the circuit court judge issued a sealed sentence. Pride appeals, arguing the circuit court judge erred in finding he waived his right to counsel. We affirm.

The panel of this Court affirmed Pride's convictions in a published opinion. State v. Pride, 372 S.C. 443, 641 S.E.2d 921 (Ct. App. 2007). Subsequently, the panel granted Pride's petition for rehearing and request for oral argument. We now withdraw our previous opinion and substitute the attached opinion.

FACTS

As a result of an on-going narcotics investigation, detectives with the Union Police Department identified Pride as a crack cocaine dealer. On the morning of April 2, 2003, detectives went to Pride's residence and served him with a search warrant. Upon entering the residence, Detective Brian Bailey read Pride his Miranda [1] rights. Bailey then questioned Pride as to whether there were any illegal drugs in the house. According to Bailey, Pride admitted there were illegal drugs in the house and there was a bag of crack cocaine in his blue jeans which were located in his bedroom. While conducting a search of the area identified by Pride, the detectives found $1, 875 in cash and a bag containing 3.62 grams of crack cocaine. Detectives then placed Pride under arrest and transported him to the police station. Pride gave a written statement in which he confessed to dealing crack cocaine and acknowledged the result of the detectives' search of his residence. Subsequently, a Union County grand jury indicted Pride for possession of crack cocaine with intent to distribute (PWID) and PWID within proximity of a school.

On October 13, 2004, Pride's case was called for trial. Although Pride was not present, William All, the public defender assigned to his case, appeared in court. When the circuit court judge inquired about Pride's absence All outlined the history of his representation of Pride. All was initially appointed to represent Pride on two other drug charges. After Pride was arrested on a bench warrant, he retained Fletcher Smith, a private attorney. All explained that he was again appointed to represent Pride on September 13, 2004, the first day of the term of court for which Pride was originally scheduled to go to trial. On that day, Pride was still represented by Smith. The circuit court judge, however, granted Smith's motion to be relieved and informed Pride that he needed to retain an attorney. Because Pride qualified for the public defender's office, All was again appointed to his case.

Pride failed to appear for two scheduled appointments with All. Each time, Pride informed All that he could not attend the appointments because of his work schedule. After the two missed appointments, All sent Pride a letter on October 1, 2004, indicating that his trial was scheduled for the week of October 11, 2004, and that he could not adequately represent him without speaking with him. Additionally, All asked Pride to advise him if he had retained private counsel. In response, Pride scheduled another appointment for October 7th. Pride again failed to appear for this appointment and offered no explanation.

On October 11th, Pride went to the Union County courthouse to report for roll call and was arrested for a driving under suspension charge. When officers searched Pride's person, they discovered $5, 000 in his pocket. While in custody, law enforcement transported Pride to the courthouse so that he could speak with All. At that time, Pride told All that Smith was again representing him and that he had sent some money to Smith. Pride also claimed that he had intended to give Smith the $5, 000 after he reported for roll call. Later that evening, Pride was released from custody. The next morning at the courthouse, All told Pride that Smith needed to come to the courthouse to review the pre-trial motions that the solicitor intended to use during his case. According to All, Pride indicated that Smith would come to the courthouse. All then contacted Smith's office in the afternoon and discussed the matter with Smith's administrative assistant. The administrative assistant informed All that Pride had attempted to pay $250 for Smith's representation. In response, All stated that Pride had indicated to him that he had $5, 000 for Smith. Although Smith's administrative assistant stated that she would contact Pride about payment and then call All back, she did not contact All and there is no evidence in the record of an agreement by Smith to represent Pride. On the morning of trial, the solicitor contacted All and told him that Smith's office had informed him that Smith did not represent Pride.

Upon hearing this factual recitation, the solicitor moved to have Pride tried in his absence. The circuit court judge then inquired whether All wished to make a motion to be relieved as counsel. Although All was hesitant to make the motion out of an ethical obligation to his client, he made the motion which was granted by the judge. In so ruling, the judge found that Pride waived his right to counsel by his conduct. In explaining his ruling, the judge believed that Pride was sort of playing the attorney game so to speak and saying somebody represents him and they say they don't.” Pride was then tried and convicted for the drug offenses. After the jury returned a verdict, the judge issued a sealed sentence.

On January 18, 2005, Pride appeared in court to be sentenced. Pride admitted that he did not have an attorney for the sentencing hearing. All appeared at the hearing and again explained his history of representing Pride. He indicated that he could perfect an appeal for [Pride] if he wants to raise the issue of whether or not he shouldn't have been tried in his absence.” All indicated that he would move for appellate defense to represent Pride in his appeal. The judge then asked All to stand with Pride as he imposed the sentence. The judge sentenced Pride to twenty-five years imprisonment and a $50, 000 fine for PWID and fifteen years imprisonment and a $10, 000 fine for PWID within proximity of a school. The sentences were to be served concurrently. This appeal followed.

DISCUSSION

Pride argues the circuit court judge erred in relieving All as his counsel and proceeding with the trial in his absence. He contends his conduct was not sufficient to establish that he waived his right to counsel. [2]

As a threshold matter, we initially question whether Pride adequately preserved this issue for our review. Although Pride's lack of trial representation was discussed at his sentencing hearing, Pride never moved for a new trial on the ground that he did not knowingly waive his right to counsel. See State v. Williams, 303 S.C. 410, 411, 401 S.E.2d 168, 169 (1991)(holding defendant, who was tried and convicted in his absence without counsel, failed to preserve issue of whether he waived his right to trial counsel where neither he nor his sentencing attorney raised this issue to the circuit court); cf. State v. White, 305 S.C. 455, 456, 409 S.E.2d 397, 397 (1991) (finding defendant, who was tried and convicted in his absence without counsel and appeared pro se at the sentencing hearing, could raise the issue of whether he waived his right to trial counsel because defendant's first opportunity to raise the issue was on appeal).

Assuming the general discussion during the sentencing hearing was sufficient to preserve this issue, we find the circuit court judge correctly found Pride waived his right to counsel by his conduct.

The Sixth Amendment guarantees criminal defendants a right to counsel. This right may be waived.” State v. Gill, 355 S.C. 234, 243, 584 S.E.2d 432, 437 (Ct. App. 2003)(citations omitted). This court has explained that [a] defendant may surrender his right to counsel through (1) waiver by affirmative, verbal request; (2) waiver by conduct; and (3) forfeiture.” State v. Thompson, 355 S.C. 255, 262, 584 S.E.2d 131, 134 (Ct. App. 2003).

In support of his argument, Pride appropriately relies on our decision in State v. Thompson, 355 S.C. 255, 584 S.E.2d 131 (Ct. App. 2003). However, as will be more fully discussed, neither Thompson nor our more recent case of State v. Roberson, 371 S.C. 334, 638 S.E.2d 93 (Ct. App. 2006), cert. granted (Oct. 19, 2007), require reversal of Pride's convictions and sentences.

In Thompson, the defendant was tried in absentia and without counsel for the offenses of discharging a firearm into a dwelling and malicious injury to personal property over $1, 000 but less than $5, 000. After the jury convicted Thompson, the judge issued a sealed sentence. At sentencing, Thompson's counsel moved for a new trial because he was denied the right to counsel. Counsel claimed that Thompson had appeared at four or five roll calls after his arrest. Additionally, counsel alleged that...

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