State v. Ellerbe

THIS OPINION HAS NO
PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY
PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State, Respondent,

v.

Lee Edward Ellerbe, Appellant.

Appeal From Marlboro County

 James C. Williams, Jr., Circuit Court
Judge

Unpublished Opinion No.  2007-UP-287

Submitted June 1, 2007 – Filed June 7,
2007

APPEAL DISMISSED

Appellate Defender Aileen P. Clare, South Carolina Commission on
Indigent Defense, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott,
Office of the Attorney General, all of Columbia; and Solicitor I. McDuffie
Stone, of Hampton, for Respondent.

PER CURIAM:  Lee Edward Ellerbe appeals his conviction
and sentence for first degree burglary.  Ellerbe argues he did not knowingly
and voluntarily waive his right to counsel.  We disagree.  “The Sixth Amendment
guarantees criminal defendants a right to counsel.”  State v. Gill, 355
S.C. 234, 243, 584 S.E.2d 432, 437 (Ct. App. 2003).  This right, however, can
be waived.  Dearybury v. State, 367 S.C. 34, 39-40, 625 S.E.2d 212, 215
(2006).  “The right to proceed pro se must be clearly asserted by the defendant
prior to trial.”  Id.  “The trial judge has the responsibility to ensure
that the accused is informed of the dangers and disadvantages of
self-representation, and makes a knowing and intelligent waiver of the right to
counsel.”  Id. 

On
multiple occasions, Ellerbe clearly asserted his right to proceed pro se.  Not
one, but two judges clearly informed Ellerbe of the dangers and disadvantages
of self-representation.  On September 2, 2003, Judge Macaulay expressly told
Ellerbe that he was entitled to an attorney and that it would be dangerous for
Ellerbe to proceed without one; on October 6, 2003, Judge Williams expressly
told Ellerbe that he was entitled to an attorney and that it would be dangerous
for Ellerbe to proceed without one.  Nevertheless, Ellerbe proceeded pro se. 
He did so knowingly and voluntarily.  Accordingly, after a thorough review of
the record, counsel’s brief, and Ellerbe’s pro se brief, pursuant
to Anders v. California, 386 U.S. 738 (1967), and State v. Williams,
305 S.C. 116, 406 S.E.2d 357 (1991), we dismiss this appeal and grant counsel’s
motion to be relieved. 

APPEAL
DISMISSED.

HEARN, C.J.,
KITTREDGE, J., and CURETON, A.J., concur.