Submitted November 15, 2018
from Spartanburg County J. Derham Cole, Plea Court Judge
Edward W. Miller, Post-Conviction Relief Judge
Appellate Defender LaNelle Cantey DuRant, of Columbia, for
Attorney General Alan McCrory Wilson, and Assistant Attorney
General Jordan Adraine Cox, both of Columbia, for Respondent.
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.
Facts and Procedural History
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
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.
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.
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.