                       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, Plea Court Judge
                    Edward W. Miller, Post-Conviction Relief Judge


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


                                    REVERSED


             Appellate Defender LaNelle Cantey DuRant, of
             Columbia, for Petitioner.

             Attorney General Alan McCrory Wilson, and Assistant
             Attorney General Jordan Adraine 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 because the record does
not reflect a valid waiver of Osbey's right to counsel. In particular, the plea court
did not ensure Osbey was aware of the dangers of self-representation. We remand
to the court of general sessions for a new trial.

      I.     Facts and Procedural History

The State charged Osbey with two counts of trafficking in cocaine base and one
count of possession with intent to distribute cocaine base. The charges stem from
two incidents in which Osbey allegedly sold crack cocaine to a confidential
informant. Osbey pled guilty almost a year after his arrest, without counsel. The
plea court informed him of his right to counsel, and noted Osbey had previously
been informed by a court official on three separate occasions that if he wanted to
have a public defender appointed he would have to contact the public defender's
office and submit an application. The plea court then asked, "Did you knowingly
and intelligently make the decision not to have a lawyer assist you?" Osbey
responded, "No, sir. I was trying to get one." Osbey explained he went to the public
defender's office the week before 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, having 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 appeal.

Osbey filed a PCR application on the ground he "did not knowingly and voluntarily
waive his right to counsel." At the PCR hearing, Osbey's PCR counsel stated, "This
was a pro se plea . . . , but there was nothing on the record that Mr. Osbey was warned
about the dangers of self-representation . . . . There is no evidence he had sufficient
understanding for his actions to amount to a knowing and voluntary waiver of
counsel." The PCR court found "the plea judge was correct in finding [Osbey]
knowingly and voluntarily waived his right to counsel." We granted 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. CONST. 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 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). 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 times 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 dilatory conduct in failing
to obtain counsel. In numerous cases, we have recognized a defendant may be found
to have waived his right to counsel when it is clear to the court 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" retain counsel, but the defendant refused. 271 S.C. at
127, 245 S.E.2d at 607. After examining the defendant's actions, 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 lose his right to
counsel—and we found he chose to forego counsel. 271 S.C. at 128, 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 retain counsel by a certain
reasonable time . . . the court may treat his failure to provide 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 "waiver by conduct," and stating, "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 proceed pro se and,
thus, as a waiver of the right to counsel."); Com. v. Means, 907 N.E.2d 646, 658
abandonment 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 known 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 conduct," must be knowing
and intelligent. For a waiver to be "knowing and intelligent," the defendant "should
be made aware of the dangers and disadvantages of self-representation." 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 request" 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 defendant 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 defendant of the dangers of self-
representation applies to waiver by conduct. The PCR court found 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 right 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, finding, "Petitioner was not adequately apprised of
the dangers of self-representation." 351 S.C. at 412, 570 S.E.2d at 186.

In this case, the plea court did not mention to Osbey the dangers of self-
representation. When this happens, we look to the record to determine 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 petitioner made an
informed choice to proceed pro se, with 'eyes open,' then the petitioner 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 demonstrate petitioner was sufficiently aware of the
dangers of self-representation"). Osbey has two prior convictions for possession
with intent to distribute cocaine base. He also violated his probation in 2004 and

(Mass. 2009) ("The key to waiver by conduct is misconduct occurring 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 to 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, only 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 though he was not warned
of the dangers of self-representation. 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-representation." 382 S.C. at 188, 675 S.E.2d at 733. Today, we
cannot reconcile our statement in Roberson that Faretta and Prince are inapplicable
to a waiver by conduct case with the clear and unmistakable authority 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 requirement that the defendant's knowledge and
understanding of the dangers of self-representation is a necessary predicate to any
waiver of counsel, we overrule it.

      III.   Conclusion

Osbey did not waive his right to counsel by conduct because Osbey was not warned
of the dangers of self-representation. 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 HEARN, JJ., concur. JAMES, J.,
concurring in a separate opinion in which KITTREDGE, J., concurs.


2
  See State v. Thompson, 355 S.C. 255, 267, 584 S.E.2d 131, 137 (Ct. App. 2003)
("A defendant can forfeit his right to counsel irrespective of his knowledge of . . .
the dangers of self-representation." (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 circumstances"); State v.
Roberson, 371 S.C. 334, 338, 638 S.E.2d 93, 95 (Ct. App. 2006) ("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."), 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 practical issues facing the circuit court when the
unrepresented defendant appears for plea or trial.

The deeper problem facing the circuit court in any given case is that there is
typically no clear way to verify whether Faretta warnings have ever been given to
the unrepresented defendant. Perhaps the ideal time for giving Faretta warnings to
the unrepresented defendant would be during either the defendant's first
appearance or second appearance. However, first appearances are typically
conducted with neither a judge nor a court reporter being present; therefore, even if
the warnings were then given, there would be no record they were then given or by
whom they were given. Second appearances are usually conducted in the presence
of a circuit judge, but more often than not, a court reporter is not
present. Therefore, there is typically no record of the warnings being given during
a second appearance. Even if a court reporter was present during a first
appearance, a second appearance, or during some other transcribed 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 of no help to the
circuit judge before whom the defendant appears for an imminent trial or plea. If,
immediately prior to trial or plea, the unrepresented defendant claims he was not
given Faretta warnings or does not recall if he was given the warnings, it would
likely not be appropriate for the trial or plea judge to receive testimony of the
solicitor on the point.

In Wroten v. State, we observed, "While a specific inquiry by the trial judge
expressly addressing the disadvantages of a pro se defense is preferred, the
ultimate test is not the trial judge's advice but rather the defendant's
understanding. . . . If the record demonstrates the defendant's decision to represent
himself was made with an understanding of the risks of self-representation, the
requirements of a voluntary waiver 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 judge) has the ultimate
responsibility of warning the unrepresented defendant of the dangers of self-
representation immediately before the trial or plea is to begin. That paves the way
for the dilatory defendant to manipulate the process for further delay, because the
trial judge or the plea judge does not become involved until the tail end of the
prosecution. Perhaps the most efficient way for this problem to be avoided is for
the solicitor, when it becomes apparent a plea or trial is imminent, to bring the
unrepresented defendant before the circuit court for the stated purpose of curing
any Faretta ills. Even that approach would invite further dilatory conduct by the
defendant.

There are obvious practical barriers to ascertaining whether an unrepresented
defendant has been warned of the dangers of self-representation. However, the law
requires the defendant to be so warned, and the majority correctly concludes there
is no proof Osbey was so warned. The majority also correctly concludes there is
no proof of waiver by conduct. Here, we have no choice but to reward Osbey with
post-conviction relief, even though he, an experienced criminal defendant, was
advised he could apply for a public defender several times, beginning almost one
year before he pled guilty. I reluctantly concur.

KITTREDGE, J., concurs.
