State v. Morton

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Dana L. Morton, Appellant.

Appellate Case No. 2018-001909

Appeal From Spartanburg County
Roger L. Couch, Circuit Court Judge

Unpublished Opinion No. 2021-UP-277
Submitted June 1, 2021 – Filed July 21, 2021

REMANDED

E. Charles Grose, Jr., of Grose Law Firm, of Greenwood,
for Appellant.

Attorney General Alan McCrory Wilson and Senior
Assistant Deputy Attorney General William M. Blitch,
Jr., both of Columbia, and Solicitor Barry Joe Barnette,
of Spartanburg, all for Respondent.

PER CURIAM: Dana Morton appeals his convictions for possession with intent
to distribute (PWID) marijuana and trafficking cocaine, arguing, inter alia, the trial
court erred in failing to appoint a public defender and requiring him to represent
himself at trial. We remand.

Morton argues the trial court erred in requiring him to represent himself, in failing
to appoint a public defender when he did not affirmatively waive his right to
counsel, and in not adequately informing him of the dangers of self-representation.
The State acknowledges that the transcript fails to provide a colloquy between the
court and Morton regarding the dangers of self-representation. The State further
concedes this court should remand the case to determine whether Morton's decision
to represent himself was knowingly and voluntarily made.

Our supreme court has repeatedly found the appropriate remedy in such a case is
not a new trial but a remand to the trial court for a determination of whether the
waiver was intelligently made. See State v. Dixon, 269 S.C. 107, 109, 236 S.E.2d
419, 420-21 (1977) (remanding "to the lower court for a determination of whether
the waiver was intelligently made"); State v. Cash, 304 S.C. 223, 225, 403 S.E.2d
632, 634 (1991) (stating "except in extraordinary cases where it is clear that a
hearing on remand would serve no useful purpose, the remedy when a record fails
to show a knowing and intelligent waiver of the right to counsel will be a remand
for a Dixon hearing"); State v. Dial, 429 S.C. 128, 135, 838 S.E.2d 501, 505 (2020)
(remanding the case to the circuit court to conduct an evidentiary hearing pursuant
to Dixon to determine whether Dial knowingly and intelligently waived his right to
counsel).

Based on the State's concession and our review of the record, we remand to the
circuit court to conduct a Dixon hearing.1

1
We affirm Morton's remaining issues pursuant to Rule 220(b)(2), SCACR. See
Dixon, 269 S.C. at 110, 236 S.E.2d at 421 (summarily disposing of Dixon's
remaining issues and remanding for a hearing on the issue of a knowing and
voluntary waiver of the right to counsel). As to the testimony describing a
confidential informant (CI) as reliable, we find any error in its admission was
harmless because similar evidence was admitted without objection when Morton
recalled the witness. See State v. Blackburn, 271 S.C. 324, 329, 247 S.E.2d 334,
337 (1978) (finding the admission of improper evidence was harmless because it
was cumulative to other evidence). As to the limitation of the cross-examination
of the CI, we find no reversible error. See State v. Santiago, 370 S.C. 153, 163,
634 S.E.2d 23, 29 (Ct. App. 2006) (finding the failure to make a proffer of
excluded evidence precludes review on appeal).
REMANDED.2

WILLIAMS, THOMAS, and HILL, JJ., concur.

2
We decide this case without oral argument pursuant to Rule 215, SCACR.