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Osbey v. State

Supreme Court of South Carolina

March 6, 2019

Robert Osbey, Petitioner,
v.
State of South Carolina, Respondent.

          Submitted November 15, 2018

          Appeal from Spartanburg County J. Derham Cole, Plea Court Judge Edward W. Miller, Post-Conviction Relief Judge

         ON WRIT OF CERTIORARI

          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.

          FEW, JUSTICE

         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. ...


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