THE STATE OF SOUTH CAROLINA
In The Supreme Court
State of South Carolina, Respondent.
ON WRIT OF CERTIORARI
Appeal From Anderson County
H. Dean Hall, Judge
Opinion No. 25008
Submitted October 20, 1999 - Filed November 1, 1999
Assistant Appellate Defender Robert M. Pachak, of
Columbia, for petitioner.
Attorney General Charles M. Condon, Chief Deputy
Attorney General John W. McIntosh, Assistant
Deputy Attorney General Teresa A. Knox, and
Assistant Attorney General Howard L. Steinberg, all
of Columbia, for respondent.
MOORE, A.J.: Petitioner pled guilty to thirteen counts of
forgery then filed this application for post-conviction relief (PCR) which was
denied. We granted a writ of certiorari to review the denial of relief and now
Petitioner was not represented by counsel during her guilty plea
proceeding. The plea judge told petitioner:
You have a right to a lawyer. You have a right to a
trial by jury. You do not have to testify. The State is
required to prove you guilty beyond a reasonable
doubt. If you do not testify, I'd charge the jury they
could not hold that against you. And you still want
to plead guilty?
Petitioner indicated that she wished to plead guilty, and the
proceeding continued until petitioner said she would fail a drug test if one
were given to her. At that point, the plea judge accepted her plea, ordered a
drug test, and stated he would sentence her the next morning.
The next morning, the plea judge again told petitioner she had a
right to a lawyer and asked if she had a lawyer. Petitioner responded that
she did not. The plea judge said, "You have a right to a lawyer. You want to
give up that right and plead guilty?" Petitioner indicated that she did, and
the guilty plea proceeding continued.
Before sentencing, the plea judge was informed that petitioner
was on probation for simple possession of crack cocaine. The plea judge
sentenced petitioner on the forgery counts and ordered that petitioner's
probation be terminated, revoked, or allowed to run with the forgery
sentence, stating "this is a flat sentence."
Did the PCR court err in concluding that petitioner knowingly
and intelligently waived her right to counsel?
The Sixth Amendment guarantees a right to counsel to criminal
defendants. U.S. CONST. amend. VI; State v. Stuckey, 333 S.C. 56, 508
S.E.2d 564 (1998). The right to counsel also attaches to probation revocation
proceedings. Salley v. State, 306 S.C. 213, 215, 410 S.E.2d 921, 922 (1991).
To establish a valid waiver of counsel, the accused must be
advised of the right to counsel and adequately warned of the dangers of self
representation. Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541,
45 L.Ed.2d 562, 581-82 (1975). In the absence of a specific inquiry by the
lower court addressing the dangers and disadvantages of proceeding pro se,
we look to the record to determine whether petitioner had sufficient
background or was apprised of her rights by some other source. Bridwell v.
State, 306 S.C. 518, 520, 413 S.E.2d 30, 31 (1992).
In this case, the plea judge clearly advised petitioner that she
had a right to counsel before she pled guilty. However, no one specifically
informed petitioner of the dangers and disadvantages of proceeding pro se.
Further, the record indicates petitioner lacked a sufficient background to
understand the ramifications of proceeding pro se. Petitioner does not have
a high school education and appeared in court only one time prior to these
proceedings. Moreover, petitioner's testimony during the PCR hearing
indicates that she did not understand the workings of the criminal justice
system. For example, petitioner stated that she believed a solicitor was
different from a prosecutor and that the solicitor looked out for her best
interest. See Prince v. State, 301 S.C. 422, 392 S.E.2d 462 (1990)
(determining Prince was not aware of the dangers and disadvantages of
proceeding pro se when, among other things, Prince exhibited little
understanding of criminal proceedings and testified he relied upon the
solicitor's advice at the plea proceeding).
In addition, the plea judge failed to inform petitioner that she
had a right to counsel during her probation revocation hearing and did not
explain to petitioner the dangers and disadvantages of proceeding pro se
during her probation revocation hearing.
We find the record does not demonstrate petitioner was
sufficiently aware of the dangers of self representation to make an informed
decision to proceed pro se during the plea proceeding and probation
revocation hearing. We hold the PCR judge erred in finding a valid waiver
of counsel. See Satterwhite v. State, 325 S.C. 254~ 481 S.E.2d 709 (1997)
(PCR judge's findings will be reversed if unsupported by any probative
evidence). Accordingly, the order of the PCR judge is
FINNEY, C.J., TOAL, WALLER, and BURNETT, JJ., concur.