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2007-UP-287 - State v. Ellerbe

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.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Lee Edward Ellerbe, Appellant.


Appeal From Marlboro County
 James C. Williams, Jr., Circuit Court Judge


Unpublished Opinion No.  2007-UP-287
Submitted June 1, 2007 – Filed June 7, 2007


APPEAL DISMISSED


Appellate Defender Aileen P. Clare, South Carolina Commission on Indigent Defense, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Office of the Attorney General, all of Columbia; and Solicitor I. McDuffie Stone, of Hampton, for Respondent.

PER CURIAM:  Lee Edward Ellerbe appeals his conviction and sentence for first degree burglary.  Ellerbe argues he did not knowingly and voluntarily waive his right to counsel.  We disagree.  “The Sixth Amendment guarantees criminal defendants a right to counsel.”  State v. Gill, 355 S.C. 234, 243, 584 S.E.2d 432, 437 (Ct. App. 2003).  This right, however, can be waived.  Dearybury v. State, 367 S.C. 34, 39-40, 625 S.E.2d 212, 215 (2006).  “The right to proceed pro se must be clearly asserted by the defendant prior to trial.”  Id.  “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. 

On multiple occasions, Ellerbe clearly asserted his right to proceed pro se.  Not one, but two judges clearly informed Ellerbe of the dangers and disadvantages of self-representation.  On September 2, 2003, Judge Macaulay expressly told Ellerbe that he was entitled to an attorney and that it would be dangerous for Ellerbe to proceed without one; on October 6, 2003, Judge Williams expressly told Ellerbe that he was entitled to an attorney and that it would be dangerous for Ellerbe to proceed without one.  Nevertheless, Ellerbe proceeded pro se.  He did so knowingly and voluntarily.  Accordingly, after a thorough review of the record, counsel’s brief, and Ellerbe’s pro se brief, pursuant to Anders v. California, 386 U.S. 738 (1967), and State v. Williams, 305 S.C. 116, 406 S.E.2d 357 (1991), we dismiss this appeal and grant counsel’s motion to be relieved. 

APPEAL DISMISSED.

HEARN, C.J., KITTREDGE, J., and CURETON, A.J., concur.