State v. Roberson

• Decision Date: 30 October 2006
• Docket Number: No. 4172.,4172.
• Citation: 638 S.E.2d 93
• Parties: The STATE, Respondent, v. Clinton ROBERSON, Appellant.
• Court: South Carolina Court of Appeals

638 S.E.2d 93

The STATE, Respondent, v. Clinton ROBERSON, Appellant.

No. 4172.

Court of Appeals of South Carolina.

Submitted October 1, 2006.

Decided October 30, 2006.

Rehearing Denied December 18, 2006.

Acting Chief Attorney Joseph L. Savitz, III, of Columbia; 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 David M. Pascoe, Jr., of Summerville; for Respondent.

BEATTY, J.

Clinton Roberson was tried in absentia and without counsel for the charge of failing to register as a sex offender. After the jury convicted Roberson, the circuit court judge sentenced Roberson to ninety days imprisonment. Roberson appeals the judge's denial of his motion for a new trial. We reverse and remand for a new trial.¹

FACTS

On October 6, 1999, Roberson was arrested for failing to register as a sex offender pursuant to sections 23-3-460 and 23-3-470 of the South Carolina Code.² According to the affidavit attached to the arrest warrant, Roberson had been previously convicted of committing a lewd act on a minor and failed to re-register as a sex offender after he moved from Dorchester County to Charleston County. Roberson was released on bond the day after his arrest. The terms of the bond required Roberson to appear for roll call at the term of general sessions court in Dorchester County beginning on November 29, 1999. By signing the bond, Roberson acknowledged that he would be tried in his absence if he failed to appear in court. The Dorchester County Solicitor's office mailed to Roberson's last known address two notices of appearance for the terms of court scheduled for November 29, 1999, and January 10, 2000.

On February 16, 2000, Roberson was tried in his absence and without counsel before a Dorchester County jury. After the jury convicted Roberson of failing to register as a sex offender, the circuit court judge issued a sealed sentence of ninety days imprisonment.

On April 24, 2003, Roberson, who was represented by counsel, appeared before the circuit court to be sentenced. During this hearing, Roberson inquired whether he was represented by counsel at trial. Based on this inquiry, Roberson's counsel moved for a new trial on the grounds Roberson did not knowingly and voluntarily fail to appear for his trial and he was denied his right to be represented by counsel at the trial. Because it was not clear whether Roberson had been represented at trial, the judge continued the motion until a trial transcript could be located.

During the hearing on the motion, Roberson's counsel contended Roberson was not aware of the trial date³ and he was not represented by counsel at trial. Based on these grounds, counsel requested that the circuit court vacate Roberson's conviction and grant him a new trial. In response, the solicitor asserted Roberson waived his right to counsel by failing to appear. Additionally, the solicitor claimed Roberson was apprised of his right to counsel at the bond hearing. At the conclusion of the hearing, the circuit court judge denied Roberson's motion. The judge found that Roberson had waived his right to counsel because the terms of his bond indicated that he would be tried in absence if he failed to appear and he had been informed of his right to counsel at the bond hearing. Roberson appeals.

DISCUSSION

Roberson argues the circuit court judge erred in denying his motion for a new trial because he was denied the right to counsel at trial. We agree.

"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).

Initially, we note neither the first nor the third above-outlined condition has been met to constitute a waiver of Roberson's right to counsel. In terms of the first condition, there is no evidence in the record establishing that a trial judge advised Roberson of his right to counsel and warned him of the dangers of self-representation. See Prince v. State, 301 S.C. 422, 423-24, 392 S.E.2d 462, 463 (1990) (discussing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), and noting that Faretta allows a defendant to waive his right to counsel if the following conditions are satisfied: (1) the accused is advised of his right to counsel and (2) adequately warned of the dangers of self-representation). Furthermore, we reject the State's contention that Roberson implicitly waived his right to counsel by signing his bond form. Although the form stated that Roberson would be tried in his absence if he failed to appear for his trial, we do not believe that Roberson's acknowledgment of this statement can be construed as an affirmative waiver of his right to counsel.

Regarding the third condition, this court has stated that "[s]ituations where a defendant's own conduct forfeits his right to counsel are unusual, typically involving a manipulative or disruptive defendant." Thompson, 355 S.C. at 267, 584 S.E.2d at 137. The record is devoid of any egregious misconduct on the part of Roberson to warrant the drastic sanction of forfeiture of the right to counsel. Significantly, the only apparent misconduct is Roberson's failure to appear at his trial.

Accordingly, we confine our analysis, as do the parties, to the question of whether Roberson waived his right by his conduct, i.e., by failing to appear for trial. In answering this question, we are guided by this court's decision in State v. Thompson, 355 S.C. 255, 584 S.E.2d 131 (Ct.App.2003). 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 Thompson, despite his request, had been turned down for a public defender because he did not meet the financial requirements to qualify. In terms of Thompson's failure to appear at trial, his counsel informed the court that Thompson was not given adequate notice of the trial date. Id. at 260, 584 S.E.2d at 133. The court denied Thompson's motion for a new trial. Id. at 260, 584 S.E.2d at 134. On appeal, this court reversed the decision of the circuit court. We held that Thompson's failure to appear at trial did not rise to the level of waiver. Id. at 266, 584 S.E.2d at 136. Our decision was based on the following...