State v. Ford

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State,       
Respondent,

v.

Derrick Ford,       
Appellant.

Appeal From Sumter County

Howard P. King, Circuit Court Judge

Unpublished Opinion No. 2003-UP-578

Submitted July 15, 2003 – Filed October
2, 2003   

AFFIRMED

Assistant Appellate Defender Eleanor Duffy Cleary, of Columbia, for Appellant

Deputy Director for Legal Services Teresa A. Knox, Legal Counsel
Tommy Evans, Jr. and Legal Counsel J. Benjamin Aplin, all of Columbia,  for
Respondent.

PER CURIAM:  Derrick Ford appeals the revocation
of his probation.  Appearing pro se at the hearing, Ford waived
his right to counsel on the record and signed a written waiver.  The trial judge
revoked ten years, the balance of Ford’s remaining sentence, and terminated
his probation.  Ford argues the revocation should be vacated because
he was not apprised of and did not understand the dangers of self-representation. 
We affirm.

FACTS

On August 26, 1996, a Sumter County
grand jury indicted Ford for armed robbery, possession of a weapon during the
commission of a violent crime, and criminal conspiracy.  On July 24, 1997, a
jury convicted Ford of strong arm robbery and conspiracy.  The jury acquitted
Ford of the weapon charge.  The trial judge sentenced Ford to fifteen years
imprisonment suspended upon the service of five years and five years probation
for the robbery charge.  On the conspiracy charge, the judge sentenced Ford
to five years imprisonment.   The sentences were to be served concurrently.

On November 1, 2001, Ford’s probation agent
served him with a warrant and an affidavit that alleged Ford violated several
conditions of his probation.  The affidavit stated Ford:  (1) failed to refrain
from possessing a firearm while on probation; (2) failed to refrain from violating
the law by participating in an armed robbery; (3) failed to pay court-ordered
fees; and (4) failed to pay a court-ordered fine.  At the time the agent served
the warrant and affidavit, the agent verbally advised Ford that he had the right
to an attorney to represent him at the hearing.  He was also informed
that if he could not afford an attorney the State would appoint one to represent
him.

On December 7, 2001, Ford was provided
written notification of his hearing date scheduled for January 18, 2002. 
The notification informed Ford that he had a right to have an attorney represent
him at the hearing.  Ford acknowledged that he received this notification.

On January 18, 2002, Ford appeared pro
se at the revocation hearing.  During the hearing, the judge advised
Ford that he had a right to have an attorney represent him.  The judge told
Ford that if he could not afford an attorney the court would appoint one.
Ford responded that he wanted to waive this right.  Ford then signed a written
waiver of his right to have appointed counsel.  The judge found Ford
had freely and voluntarily waived his right to counsel.

The probation agent presented a factual
basis for the alleged probation violations. The agent also gave the judge
a list of Ford’s prior convictions.  In reply, Ford acknowledged he possessed
a weapon while on probation, but claimed it was for his protection.  He
also disputed some of the facts.

After hearing arguments, the judge again
found that Ford waived his right to counsel.  The judge then revoked Ford’s
probation finding Ford willfully violated the conditions of his probation. 
He sentenced Ford to ten years imprisonment, the balance of Ford’s remaining
sentence, and terminated his probation.  Ford appeals.  

DISCUSSION

Ford argues the revocation of his suspended sentence
should be vacated.  He contends the judge erred in failing to inform him of
the dangers of self-representation.  He asserts this instruction was essential
because he did not have the sufficient background to understand the dangers
of self-representation. 

“The right to counsel attaches in probation
revocation hearings.”  Salley v. State, 306 S.C. 213, 215, 410 S.E.2d
921, 922 (1991).  “The requirements for waiving right to counsel in a probation
revocation hearing are the same requirements as apply when a defendant desires
to waive right to counsel in a trial.”  Id.

In Faretta v. California, 422
U.S. 806 (1975), the United States Supreme Court held that in order to waive
the right to counsel, the accused must:  (1) be advised of his right to counsel;
and (2) adequately warned of the dangers of self-representation.  Gardner
v. State, 351 S.C. 407, 411, 570 S.E.2d 184, 186 (2002) (citing Faretta
v. California, 422 U.S. 806 (1975)).  “It is the trial judge’s responsibility
to determine whether there is a competent, intelligent waiver by the defendant.” 
Watts v. State, 347 S.C. 399, 402, 556 S.E.2d 368, 370 (2001).  “In the
absence of a specific inquiry by the trial judge addressing the disadvantages
of a pro se defense as required by the second Faretta prong, this
Court will look to the record to determine whether petitioner had sufficient
background or was apprised of his rights by some other source.”  Prince v.
State, 301 S.C. 422, 424, 392 S.E.2d 462, 463 (1990).  “The ultimate test
of whether a defendant has made a knowing and intelligent waiver of the right
to counsel is not the trial judge’s advice, but the defendant’s understanding.” 
State v. Brewer, 328 S.C. 117, 119, 492 S.E.2d 97, 98 (1997).      

In order to determine whether an accused had
a sufficient background to understand the dangers of self-representation, appellate
courts consider the following factors:

(1) the accused’s age, educational background, and physical
and mental health; (2) whether the accused was previously involved in criminal
trials; (3) whether he knew of the nature of the charge and of the possible
penalties; (4) whether he was represented by counsel before trial or whether
an attorney indicated to him the difficulty of self-representation in his particular
case; (5) whether he was attempting to delay or manipulate the proceedings;
(6) whether the court appointed stand-by counsel; (7) whether the accused knew
he would be required to comply with the rules of procedure at trial; (8) whether
he knew of legal challenges he could raise in defense to the charges against
him; (9) whether the exchange between the accused and the court consisted merely
of pro forma answers to pro forma questions; and (10) whether
the accused’s waiver resulted from either coercion or mistreatment.  

State v. Cash, 309 S.C. 40, 43, 419 S.E.2d
811, 813 (Ct. App. 1992) (citations omitted).

Here, Ford was apprised several times
of his right to counsel.  On two separate occasions, Ford’s probation agent
informed him that he had a right to have an attorney represent him at the revocation
hearing.  At the hearing, the judge also asked Ford whether he wanted to waive
his right to counsel.  Ford waived his right to counsel both orally and in writing. 

The judge, however, did not inquire
whether Ford was aware of and understood the dangers of self-representation. 
As such, we must look at the record to determine whether Ford had sufficient
background to intelligently waive his right to counsel.  Based on our review
of the record and application of the requisite Cash factors, we find
Ford made a valid waiver of his right to counsel.

At the time of the hearing, Ford was
twenty-five years old.  He has an extensive criminal record dating from August
1993.  The record included convictions for assault and battery with intent to
kill, three counts of failure to stop for a blue light, as well as strong arm
robbery and conspiracy, the charges that were the basis for his probation.  When
questioned by the judge, Ford acknowledged he understood the alleged probation
violations, his right to present evidence, and his right to appeal within ten
days of the decision.  In light of the original sentencing order and
the time that Ford served, it would also appear that he was aware of the time
remaining on the unserved portion of his sentence. Although Ford was represented
by counsel at his trial for the strong arm robbery and conspiracy, there is
no indication in the record that counsel made Ford aware of the dangers of self-representation. 
There is no evidence that Ford was attempting to delay or manipulate the proceedings
given he appeared on the scheduled date and made no motion for a continuance. 
The judge did not appoint a stand-by attorney.  Even though there was no direct
discussion during the hearing concerning Ford’s compliance with procedural rules,
Ford indicated that he understood he could present evidence and was required
to appeal the decision within ten days.  Ford also appeared to be aware of legal
challenges to his alleged probation violations because he disputed a portion
of the factual basis for the allegations.  Given the discussion between Ford
and the judge regarding the violations and his understanding of the proceeding,
we would not characterize it as an exchange consisting of pro forma
answers to pro forma questions.  Finally, there is no evidence
that Ford’s decision to waive his right to counsel was the result of either
coercion or mistreatment.

Accordingly, the circuit court’s decision revoking Ford’s probation
is

AFFIRMED.

HEARN, C.J., CONNOR and ANDERSON, JJ., concur.