No Faretta Warning? PCR Granted…

In Osbey v. State, the SC Supreme Court granted post-conviction relief (PCR) to Osbey, reversing his convictions for trafficking in cocaine base and possession with intent to distribute cocaine base because he pled guilty to the charges with no attorney and there was no valid waiver of his right to counsel.

When is it okay for a court to go forward with a guilty plea or a trial when there is no defense attorney?

Ordinarily, the Court will give what is called Faretta warnings – is that necessary if the defendant has waived their right to counsel by their conduct (delaying, disrupting, or repeatedly asking for counsel to be relieved)?

What about in the lower courts – can you file a PCR action if you did not receive Faretta warnings in the magistrate or municipal court?

Can a Defendant Waive His or Her Right to Counsel?

Every person who is charged with a criminal offense has the right to effective assistance of counsel.

First, you have the right to an attorney. Also, you have the right to a competent lawyer – if your attorney 1) was ineffective and 2) their ineffectiveness prejudiced your case, then you have grounds for PCR.

You can waive your right to counsel, although that is almost always a bad idea. If you choose to waive your right to counsel, it must be a knowing and intelligent waiver of your right to counsel, and the Court must confirm that you are knowingly and intelligently waiving your right to counsel by giving you Faretta warnings on the record.

What is a Faretta Warning?

The US Supreme Court in Faretta v. California and the SC Supreme Court in Prince v. State have held that, to confirm there was a knowing and intelligent waiver of a defendant’s right to counsel, the defendant must be:

  • Advised that he has a right to counsel; and
  • Adequately warned of the dangers of self-representation.

For this to have any meaning, the advisement must be given by the Court on the record – otherwise, how will the appellate courts know?

Which means, when the Faretta warnings are not given on the record, the defendant may be able to get his conviction reversed in post-conviction relief proceedings.

This obviously applies when a defendant says to the Court, “I want to represent myself, I don’t need an attorney.” But, what about when the defendant says, “I want an attorney,” but then they engage in delay tactics by not getting an attorney or by repeatedly asking the Court to give them a new attorney?

What is Waiver by Conduct?

According to the plea court, Osbey was told three times that he needed to apply for a public defender, but failed to do so – therefore, the Court found that Osbey had waived his right to counsel by his conduct…

At the plea hearing, however, Osbey told the Court that he wanted an attorney, he “was trying to get one,” and that he had gone to the public defender’s office a week before, but they told him it was too late.

I don’t think this qualified as “waiver by conduct” – it seems this was the first time that the issue had been addressed on the record, and the Court could have easily appointed the public defender’s office and rescheduled the plea hearing for the next term of court.

When the prosecutor sees that a defendant does not have a defense attorney, it makes sense for them to schedule a hearing where the Court can order them to retain counsel, appoint the public defender, or give the Defendant the Faretta advisement on the record. That wasn’t done in this case.

Regardless, the SC Supreme Court found that, even if it was a case of waiver by conduct, the plea court must still give the Faretta warnings to the defendant, ensuring, on the record, that the defendant is aware of his right to counsel and the dangers of not getting counsel:

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.

Because the plea court simply pronounced that Osbey had waived his right to counsel by his conduct, without an advisement pursuant to Faretta and Prince, the SC Supreme Court granted PCR and remanded the case for a new trial.

Do the Magistrate and Municipal Courts Also Have to Give Faretta Warnings?

You have the same right to counsel whether you are charged with misdemeanor assault or murder (excepting minor offenses for which you do not go to jail).

Which means that the Court must give the advisement if they are going to allow a case to go forward without a defense attorney. It does not matter if it is magistrate court, municipal court, or general sessions court.

You can also file a PCR action following a conviction in the magistrate or municipal courts when there was ineffective assistance of counsel – or a denial of counsel without the required warnings.

Osbey Won his PCR – Does that Mean His Case is Dismissed?

Osbey was sentenced to eight years at his plea hearing – does his grant of PCR mean he goes home now?

No – with few exceptions, the only thing that you can win through post-conviction relief proceedings is a new trial.

Although there may be tactical and practical benefits to post-conviction relief (new evidence has been discovered, the state is unlikely to retry the case, witnesses or evidence are not likely to be available on retrial, or there is a possibility of pleading to time served), Osbey will go back to the county jail, where he will await trial on his original charges and could be facing substantially more time than he was sentenced to…

Post-Conviction Relief PCR Lawyer in Myrtle Beach, SC

Daniel A. Selwa is a criminal defense and PCR attorney located in Myrtle Beach, SC.

If you have been convicted of a crime in SC and believe you may have grounds for post-conviction relief, call now at (843) 492-5449 or send an email to speak with a SC PCR lawyer in Myrtle Beach today.

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