THE STATE OF SOUTH CAROLINA In The Supreme Court

Robert Osbey, Petitioner,

v.

State of South Carolina, Respondent.

Appellate Case No. 2017-001038

ON WRIT OF CERTIORARI

Appeal from Spartanburg County J. Derham Cole, P lea Court Judge Edward W. Miller, Post-Conviction Relief Judge

Opinion No. 27866 Submitted November 15, 2018 – Filed March 6, 2019

REVERSED

Appellate Defender LaNe lle Cantey DuRant, of Columbia, for Petitioner.

Attorney General Alan McC rory Wilson, and Assistant Attorney General Jordan Adrain e 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 becau se the record does not reflect a valid waiver of Osbey's right to counsel. In par ticular, the plea courtdid not ensure Osbey was aware of the dangers of self-represent ation. We remand to the court of general se ssions for a new trial.

I. Facts and Procedural History

The State charged Osbey with two counts of trafficking in cocai ne base and one count of possession with intent to distribute cocaine base. Th e charges stem from two incidents in which Osbey alle gedly sold crack cocaine to a confidential informant. Osbey pled guilty almost a year after his arrest, w ithout counsel. The plea court informed him of his right to counsel, and noted Osbe y had previously been informed by a court official on three separate occasions t hat if he wanted to have a public defender appointed he would have to contact the p ublic defender's office and submit an application. The plea court then asked, " Did you knowingly and intelligently make the deci sion not to have a lawyer assist you?" Osbey responded, "No, sir. I was trying to get one." Osbey explaine d he went to the public

defender's office the week befor e 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, hav ing 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 ap peal.

Osbey filed a PCR application on the ground he "did not knowing ly and voluntarily waive his right to counsel." At the PCR hearing, Osbey's PCR c ounsel stated, "This was a pro se plea . . . , but there was nothing on the record t hat Mr. Osbey was warned about the dangers of self-repr esentation . . . . There is no e vidence he had sufficient understanding for his actions to amount to a knowing and volunt ary waiver of counsel." The PCR court found "the plea judge was correct in f inding [Osbey] knowingly and voluntarily waived his right to counsel." We gra nted 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. C ONST . 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 coun sel, 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 in telligent waiver to occur, the defendant must be "(1 ) advised of his right to couns el; 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 time s he needed to contact the public defender's office. 1 By definition, "A waiver is a voluntary and intentional

1 We understand the plea court's frustration with Osbey's dilato ry conduct in failing to obtain counsel. In numerous cases, we have recognized a def endant may be found to have waived his right to coun sel when it is clear to the cou rt the defendant knew his unreasonable delays could result in a waiver. In State v. Jacobs , 271 S.C. 126, 245 S.E.2d 606 (1978), for example, we stated the trial court " had done all it could do to urge [the defendant] to" re tain counsel, but the defendan t refused. 271 S.C. at 127, 245 S.E.2d at 607. After examining the defendant's action s, we "conclude[d] that, by his conduct, appellant waived his right to counsel." 271 S.C. at 127-28, 245 S.E.2d at 607-08 (citing United States v. Arlen , 252 F.2d 491, 494 (2d Cir. 1958)). Relying on Arlen , we found the defendant knew the consequences of his actions— that if he did not obtain counsel in a timely manner he would l ose his right to

counsel—and we found he chose to f orego counsel. 271 S.C. at 1 28, 245 S.E.2d at 608 (for clarification of our finding, see Arlen , 252 F.2d at 494 (holding "where a

defendant . . . has been advised by the court that he must reta in counsel by a certain

reasonable time . . . the court may treat his failure to provid e for his own defense as a waiver of his right to counsel")); see also United States v. Goldberg , 67 F.3d 1092, 1100 (3d Cir. 1995) (discussing "wa iver by conduct," and statin g, "Once a defendant

has been warned that he will lose his attorney if he engages in dilatory tactics, any misconduct thereafter may be treated as an implied request to p roceed pro se and, thus, as a waiver of the right to counsel."); Com. v. Means , 907 N.E.2d 646, 658abandonment 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 k nown 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 conduc t," must be knowing and intelligent. For a waiver to be "knowing and intelligent," the defendant "should be made aware of the dangers a nd disadvantages of self-represen tation." 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 req uest" 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 de fendant 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 de fendant of the dangers of selfrepresentation applies to waiver by conduct. The PCR court fou nd 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 rig ht 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, fi nding, "Petitioner was not ade quately apprised of the dangers of self-representa tion." 351 S.C. at 412, 570 S.E. 2d at 186.

In this case, the plea court did not mention to Osbey the dange rs of selfrepresentation. When this happens, we look to the record to de termine 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 p etitioner made an informed choice to proceed pro se, with 'eyes open,' then the p etitioner 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 d emonstrate petitioner was suffic iently aware of the dangers of self-representation"). Osbey has two prior convicti ons for possession

with intent to distribute cocain e base. He also violated his p robation in 2004 and

(Mass. 2009) ("The key to waiver by conduct is misconduct occur ring after an express warning has been given to the defendant about the defendant's behavior and the consequences of proceeding without counsel.").violated parole in 2007. There is nothing else in the record t o 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, onl y 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 thoug h he was not warned of the dangers of self-repres entation. 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-representati on." 382 S.C. at 188, 675 S.E.2d at 733. Today, we

cannot reconcile our statement in Roberson that Faretta andPrince are inapplicable to a waiver by conduct case with the clear and unmistakable aut hority 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 require ment that the defendant's knowl edge and understanding of the dangers of self-representation is a necess ary predicate to any waiver of counsel, we overrule it.

III. Conclusion

Osbey did not waive his right to counsel by conduct because Osb ey was not warned of the dangers of self-represen tation. 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 HE ARN, JJ., concur. JAMES, J., concurring in a separate opinion in which KITTREDGE, J., concur s.

2 See State v. Thompson , 355 S.C. 255, 267, 584 S.E. 2d 131, 137 (Ct. App. 2003) ("A defendant can forfeit his ri ght to counsel irrespective of his knowledge of . . . the dangers of self-re presentation." (citing Goldberg , 67 F.3d at 1100)); but see

United States v. Ductan , 800 F.3d 642, 651 (4th Cir. 2015) ("a defendant may forfeit his right to counsel . . . only in truly egregious circ umstances"); State v.

Roberson , 371 S.C. 334, 338, 638 S.E.2d 93 , 95 (Ct. App. 2006) ("The re cord is devoid of any egregious misconduc t on the part of Roberson to w arrant the drastic

sanction of forfeiture of the right to counsel."), rev'd , 382 S.C. 185, 675 S.E.2d

732.JUSTICE JAMES: I concur with the reasoning of the majority, but I write separately to point out practi cal issues facing the circuit cou rt when the unrepresented defendant appears for plea or trial.

The deeper problem facing the ci rcuit court in any given case i s that there is typically no clear way to verify whether Faretta warnings have ever been given to the unrepresented defendant. Per haps the ideal time for giving Faretta warnings to the unrepresented defendant would be during either the defendan t's first appearance or second appearance. However, first appearances ar e typically conducted with neither a judge nor a court reporter being prese nt; therefore, even if the warnings were then given, the re would be no record they wer e then given or by whom they were given. Second app earances are usually conducted in the presence of a circuit judge, but more ofte n than not, a court reporter i s not present. Therefore, there is t ypically no record of the warnin gs being given during a second appearance. Even if a court reporter was present duri ng a first appearance, a second appearance, or during some other transcrib ed 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 o f no help to the circuit judge before whom the def endant appears for an imminent trial or plea. If, immediately prior to trial or pl ea, the unrepresented defendant claims he was not given Faretta warnings or does not recall if h e was given the warnings, it w ould likely not be appropriate for the trial or plea judge to receiv e testimony of the solicitor on the point.

In Wroten v. State , we observed, "While a specifi c inquiry by the trial judge expressly addressing t he disadvantages of a pro se defense is preferred, the ultimate test is not the trial judge's advice but rather the de fendant's understanding. . . . If the record demonstrates the defendant' s decision to represent

himself was made with an underst anding of the risks of self-rep resentation, the requirements of a voluntary waiv er will be satisfied." 301 S.C . 293, 294, 391 S.E.2d 575, 576 (1990) (citing Fitzpatrick v. Wainwright , 800 F.2d 1057, 1065 (11th Cir. 1986)). Consequently, the trial judge (or plea judg e) has the ultimate responsibility of warning the un represented defendant of the da ngers of selfrepresentation immediately before the trial or plea is to begin . That paves the way for the dilatory defendant to ma nipulate the process for furthe r delay, because the trial judge or the plea judge does not become involved until th e tail end of the prosecution. Perhaps the most e fficient way for this problem t o be avoided is for the solicitor, when it becomes a pparent a plea or trial is immi nent, to bring the unrepresented defendant before th e circuit court for the stated purpose of curingany Faretta ills. Even that approach would invite further dilatory conduc t by the

defendant.

There are obvious practical barri ers to ascertaining whether an unrepresented

defendant has been warned of the dangers of self-representation . However, the law requires the defendant t o be so warned, and the majority correc tly concludes there is no proof Osbey was so warned . The majority also correctly c oncludes there is no proof of waiver by conduct. H ere, we have no choice but to reward Osbey with post-conviction relief, even tho ugh he, an experienced criminal defendant, was advised he could appl y for a public defe nder several times, beg inning almost one year before he pled guilty . I reluctantly concur.

KITTREDGE, J., concurs.