                    THE STATE OF SOUTH CAROLINA
                         In The Supreme Court

            The State, Respondent,

            v.

            John Henry Dial Jr., Petitioner.

            Appellate Case No. 2017-002205


       ON WRIT OF CERTIORARI TO THE COURT OF APPEALS


                         Appeal from Richland County
                    G. Thomas Cooper Jr., Circuit Court Judge


                             Opinion No. 27939
             Submitted September 16, 2019 – Filed January 29, 2020


                                  REMANDED


            John Henry Dial Jr., of Columbia, pro se Petitioner.

            Attorney General Alan McCrory Wilson, Senior Assistant
            Deputy Attorney General William M. Blitch Jr., and
            Interim Solicitor Heather S. Weiss, all of Columbia, for
            Respondent.


JUSTICE FEW: The record in this criminal appeal does not reflect whether the
magistrates court obtained a valid waiver of the right to counsel before proceeding
to the trial of this unrepresented defendant. We remand to the circuit court for an
evidentiary hearing to determine whether the defendant knowingly and intelligently
waived his right to counsel.
      I.     Facts and Procedural History

John Henry Dial Jr. was charged in magistrates court with three counts of assault
and battery in the third degree arising from an incident in which two adults and one
minor were sprayed with pepper spray. Dial appeared in court several times before
trial, each time without counsel. He pled not guilty and requested a jury trial.

The record on appeal does not include transcripts of Dial's pre-trial appearances.
The magistrate states in the return, however, he advised Dial on three separate
occasions before trial of his right to be represented by an attorney. Each time, Dial
requested to represent himself. The return is silent as to whether the magistrate
advised Dial of the dangers of representing himself.

Dial testified in his defense and denied spraying any of the victims with pepper
spray. The jury returned a verdict of guilty on two counts of assault and battery in
the third degree but found Dial not guilty on the count for spraying the minor. The
magistrates court sentenced Dial to sixty days in jail.

Dial retained counsel to appeal his conviction to the circuit court. He argued, among
other things, "[Dial] was not represented by counsel and did not waive his right to
counsel." At the hearing in the circuit court, Dial's counsel stated, "There is no
evidence in the return or in the transcript that the trial judge properly warned [Dial]
under Faretta v. California of the dangers of proceeding pro se." The circuit court
affirmed Dial's conviction.

Dial appealed to the court of appeals. The court of appeals affirmed Dial's
conviction in an unpublished opinion pursuant to Rule 220(b), SCACR. State v.
Dial, Op. No. 2017-UP-339 (S.C. Ct. App. filed Aug. 9, 2017). The opinion
included a string cite listing two cases with parenthetical quotes stating a circuit
court may not consider issues that were not presented to the magistrate. Though the
opinion contained no narrative explanation, it is clear the court of appeals found
Dial's argument that he did not waive his right to counsel was not preserved for
appellate review.

      II.    Issue Preservation

It is firmly established law that, ordinarily, an issue must be presented to the trial
court or it is not preserved for appellate review. See State v. Dunbar, 356 S.C. 138,
142, 587 S.E.2d 691, 693-94 (2003) ("Issues not raised and ruled upon in the trial
court will not be considered on appeal."); State v. Watts, 321 S.C. 158, 167, 467
S.E.2d 272, 278 (Ct. App. 1996) ("To be preserved for appellate review, an issue
must be both presented to and passed upon by the trial court."). As the court of
appeals recognized, this established rule applies in appeals from magistrates court to
circuit court. See State v. Henderson, 347 S.C. 455, 457, 556 S.E.2d 691, 692 (Ct.
App. 2001) ("In criminal appeals from magistrate . . . court, the circuit court . . .
reviews for preserved error raised to it by appropriate [objec]tion." (citing City of
Columbia v. Felder, 274 S.C. 12, 13, 260 S.E.2d 453, 454 (1979))).

As the court of appeals apparently did not recognize, however, this rule does not
apply in all situations. Dial requested to proceed without an attorney. It would be
counterintuitive to expect a defendant who requests to go forward unrepresented to
challenge the trial court's authority to permit him to do so. Rather, "It is the
responsibility of the trial judge to conduct a hearing to determine whether an
accused's request to proceed pro se is accompanied by a knowing and intelligent
waiver of the right to counsel." State v. Cash, 304 S.C. 223, 224, 403 S.E.2d 632,
633 (1991).

Nevertheless, in State v. White, 305 S.C. 455, 409 S.E.2d 397 (1991), the State
argued an unrepresented defendant failed to preserve the voluntariness of his waiver
of counsel to the trial court, and "this issue cannot be raised for the first time on
appeal." 305 S.C. at 455, 409 S.E.2d at 397. We disagreed, explaining "the first
opportunity [the defendant] has had to raise this issue is on appeal." 305 S.C. at 456,
409 S.E.2d at 397. We later stated, "A notable exception to this general rule
requiring a contemporaneous objection is found when the record does not reveal a
knowing and intelligent waiver of the right to counsel. The pro se defendant cannot
be expected to raise this issue without the aid of counsel." State v. Rocheville, 310
S.C. 20, 25 n.4, 425 S.E.2d 32, 35 n.4 (1993) (citing Cash, 304 S.C. at 224, 403
S.E.2d at 633); see Ex parte Jackson, 381 S.C. 253, 261 n.3, 672 S.E.2d 585, 589
n.3 (Ct. App. 2009) (quoting Rocheville and finding defendant was not required to
preserve issue of whether she knowingly and intelligently waived her right to
counsel); see also Brown v. State, 317 S.C. 270, 273, 453 S.E.2d 251, 253 (1994)
(Finney, J., concurring) (stating, "while this Court will not ordinarily consider the
issue whether a defendant has knowingly and voluntarily waived a constitutional
right for the first time on appeal, we will continue to entertain the claim when it
relates to the issue of waiver of the right to counsel").

Dial was not required to raise to the magistrates court—without the aid of counsel—
the validity of his waiver of counsel. The court of appeals erred in misunderstanding
that he was.
      III.   Waiver of Right to Counsel

The Sixth Amendment to the United States Constitution guarantees an accused's
right to the assistance of counsel. U.S. CONST. amend. VI; Gideon v. Wainwright,
372 U.S. 335, 339, 83 S. Ct. 792, 794, 9 L. Ed. 2d 799, 802 (1963). A defendant
may waive his right to counsel, 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 intelligent waiver to occur, the defendant must be
"(1) advised of his right to counsel; 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). The
burden is on the State to demonstrate the validity of a defendant's waiver of his right
to counsel. Brewer v. Williams, 430 U.S. 387, 404, 97 S. Ct. 1232, 1242, 51 L. Ed.
2d 424, 439-40 (1977); see United States v. Cash, 47 F.3d 1083, 1088 (11th Cir.
1995) ("On direct appeal, the government bears the burden of proving the validity
of the waiver.").

The record in this case does not contain transcripts of Dial's pre-trial appearances.
The only information available in the record regarding what occurred in these pre-
trial appearances is the magistrate's return, which is silent as to whether the
magistrate advised Dial of the dangers of proceeding without counsel.1 Thus, the
record contains no evidence the magistrate explained to Dial the dangers of self-
representation.

The State argues it was Dial's burden to provide the Court with an adequate record
to review the issue on appeal. We disagree. Dial contends the record does not reflect
a valid waiver. If Dial is correct, it would be impossible for Dial to put in the record
a transcript of what did not occur. If Dial is incorrect, the State should have put the
necessary information in the record to demonstrate what did occur. We are not
persuaded Dial failed to preserve his issue by not putting events in the record that
Dial contends did not occur.


1
  When a magistrates court prepares a return in a case in which the court conducted
a hearing to determine whether a defendant knowingly and voluntarily waived the
right to counsel, the court must explain in the return the steps it took to comply with
the requirements of Faretta and Prince, including the court's explanation to the
defendant of the dangers of self-representation and the court's findings as to whether
the defendant understood those dangers.
The State also argues the record indicates Dial had the requisite understanding to
properly represent himself. The State makes two points. First, it contends that other
facts in the record demonstrate Dial's waiver was knowing and voluntary. See Watts,
347 S.C. at 402, 556 S.E.2d at 370 ("If the trial judge fails to address the
disadvantages of appearing pro se, as required by the second prong of Faretta . . . ,
'this Court will look to the record to determine whether petitioner had sufficient
background or was apprised of his rights by some other source.'" (quoting Prince,
301 S.C. at 424, 392 S.E.2d at 463)). The State argues he was almost thirty-four
years old at the time of trial; there was no indication he had any physical or mental
impairment; he was on probation from a prior conviction, indicating he had some
exposure to the legal system; and he indicated on several forms that the charges
against him were three counts of third degree assault, demonstrating an awareness
of the charges against him. We find this evidence insufficient to demonstrate Dial
made a knowing and voluntary waiver.

Second, the State argues Dial demonstrated the ability to "fully participate in his
trial" by conducting an opening statement, directing and cross-examining witnesses,
and objecting to the admission of certain evidence. The State contends this indicates
Dial "knew of the significance of the trial and the ability to present a defense." This
is not a valid argument. See State v. Samuel, 422 S.C. 596, 603, 813 S.E.2d 487,
491 (2018) (stating "whether a defendant is capable of effectively representing
himself has no bearing upon his ability to elect self-representation" (citing Godinez
v. Moran, 509 U.S. 389, 400, 113 S. Ct. 2680, 2687, 125 L. Ed. 2d 321, 332-33
(1993))); see also United States v. Williams, 629 F. App'x 547, 552 (4th Cir. 2015)
(stating "a criminal defendant's ability to represent himself has no bearing upon his
competence to choose self-representation." (citing Godinez, 509 U.S. at 400, 113 S.
Ct. at 2687, 125 L. Ed. 2d at 332-33)); 21A AM. JUR. 2d Criminal Law § 1126 (2016)
("The competency required of a defendant seeking to waive the right to counsel is
the competence to waive the right, not the competence to represent oneself. Thus,
the trial court may not measure the defendant's competence to waive his or her right
to counsel by evaluating the defendant's technical legal knowledge or his or her
ability to represent him- or herself." (footnotes omitted)).

In State v. Dixon, 269 S.C. 107, 236 S.E.2d 419 (1977), we held, in the absence of
evidence of a knowing and intelligent waiver of the right to counsel, a defendant is
entitled to a remand to the trial court for a factual determination as to whether the
waiver was knowingly and intelligently made. 269 S.C. at 109, 236 S.E.2d at 420-
21. Similarly, we remand Dial's case to the circuit court for the court to conduct an
evidentiary hearing pursuant to Dixon to determine whether Dial knowingly and
intelligently waived his right to counsel. At this hearing, both the prosecution and
the defense are permitted to present evidence on the issue, and if the trial court finds
the waiver was not knowing and intelligent, it shall grant the defendant a new trial.
269 S.C. at 109, 236 S.E.2d at 421. Alternatively, if the trial court determines "the
waiver was intelligently made, an order dismissing the appeal shall be made by this
Court." Id.

REMANDED.

BEATTY, C.J., KITTREDGE, HEARN and JAMES, JJ., concur.
