State v. Frazier

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.

Terrence O'Neil Frazier, Appellant.

Appellate Case No. 2015-002464

Appeal From Greenwood County
Eugene C. Griffith, Jr., Circuit Court Judge

Unpublished Opinion No. 2019-UP-371
Heard October 14, 2019 – Filed November 27, 2019

REMANDED

Appellate Defender Laura Ruth Baer, and Appellate
Defender Joanna Katherine Delany, both of Columbia,
both for Appellant.

Attorney General Alan McCrory Wilson and Senior
Assistant Attorney General David A. Spencer, both of
Columbia, and Solicitor David Matthew Stumbo, of
Greenwood, all for Respondent.

PER CURIAM: Terrence Frazier argues he is entitled to a new trial because he did
not knowingly and intelligently waive his right to counsel. Frazier maintains that
the record does not demonstrate that his decision to represent himself was made with
an understanding of the risks of self-representation. We remand to the circuit court
for an evidentiary hearing on the issue.

FACTS
Law enforcement initially charged Frazier with trafficking methamphetamine,
grand larceny, auto breaking, and leaving the scene of an accident based on a myriad
of events that took place on July 9, 2015. At his preliminary hearing held on
September 1, 2015, Frazier appeared pro se and had the following exchange with
the municipal court:

Q: "Mr. Frazier, you understand that I have cautioned you
that you should not go forward without an attorney, is that
correct, sir?"

A: "I understand that."

Q: "And . . . you waive your rights to an attorney at this
critical stage of a preliminary hearing and you want to go
forward today, is that correct?"

A: "I'm representing myself, I don't waive my rights."

Frazier was subsequently indicted on November 13, 2015, for breaking into a motor
vehicle, grand larceny, trafficking in methamphetamine, leaving the scene of an
accident, and carjacking.

On the first day of trial proceedings, November 16, 2015, Frazier again
appeared pro se. After noting that Frazier refused the State's plea offer, the court
asked, "Now, have you had an opportunity to speak with a lawyer of your choosing
to see if you wanted help and assistance in defending yourself in this matter? Are
you prepared to go to trial?" Frazier responded that he was prepared to proceed to
trial. After the conclusion of pretrial matters, the State asked the court to give Frazier
a Faretta1 warning, expressing concern that the warning given at the preliminary
hearing "probably took five minutes" and was likely not comprehensive enough.
The circuit court engaged in the following colloquy with Frazier:

1
Faretta v. California, 422 U.S. 806 (1975).
Q: Mr. Frazier, tell me how far you went [in] school. You
told the jury that you were 25.

A: 9th grade, Your Honor.

Q: What kind of work have you been doing?

....

A: Like cutting grass, remodeling houses, stuff like that.

....

Q: Do you understand I could appoint you a public defender?

A: I understand that, Your Honor.

Q: Do you want one? I mean you are doing fairly well this
afternoon pointing out these motions and pretrial matters.
You are doing a very nice job of being organized.

A: If I get appointed a public defender, it won't start my case
all the way over and take more time, would it?

Q: You don't hear that very often. It could, but—now, would
you like me to see if I can get a lawyer to sit with you to
help advise you on procedural matters, like the [c]ourt
[r]ules?

A: Yeah, that will work.

Q: But you handle your case and you handle the witnesses,
since you are familiar with the facts.

A: Yes, sir, that will work. Well, look, . . . if I filled out for a
public defender and I put in for a bond reduction hearing,
. . . if they extended the time for the trial, could I go up for
a bond reduction?

Q: Technically you could, but you probably wouldn't get it.

A: Yeah. Well, I really want to get this over with.

Q: You feel comfortable representing yourself?
....

A: Yeah, I feel . . . comfortable with the facts of the evidence.

Q: Okay.

A: But I would like you to allow them to sit with me and —

Q: I'm going to see if I can get a public defender to sit with
you to advise you procedurally. Did you ever have a
public defender? Who was your lawyer before that was—

A: No, I didn't have a lawyer. I never got one.

Q: You never had one?

A: No.

Q: Have you ever had [a] public defender appointed [to] you
for any matter?

A: Yes, sir, I have.

The court then appointed Frazier standby counsel. Frazier was found guilty
on all charges save for carjacking, for which the jury found him guilty of the lesser
offense of use of a vehicle without permission. He was sentenced to incarceration
for twelve months for leaving the scene of an accident, thirty-six months for use of
vehicle without permission, sixty months for both grand larceny and breaking into a
motor vehicle, and twenty years for trafficking methamphetamine second offense.
This appeal follows.

ISSUE

Is Frazier entitled to a new trial because he did not knowingly and intelligently
waive his right to counsel?

STANDARD OF REVIEW
"Whether a defendant has knowingly, intelligently, and voluntarily waived his
right to counsel is a mixed question of law and fact which appellate courts review
de novo." State v. Samuel, 422 S.C. 596, 602, 813 S.E.2d 487, 490 (2018).
Specifically, we review a circuit court's findings of historical fact for clear error; but
we review the sufficiency of a waiver of counsel based on those findings of fact de
novo. See id. (citing United States v. Bush, 404 F.3d 263, 270 (4th Cir. 2005)). "In
doing so, [an appellate c]ourt must consider the defendant's testimony, history, and
the circumstances of his decision, as presented to the circuit [court] at the time the
defendant made his request." Id.

LEGAL ANALYSIS

Frazier argues he did not knowingly and intelligently waive his right to
counsel at any point in the proceedings because he was not warned of the dangers of
self-representation. We agree that the record fails to show that Frazier was either
adequately warned of the dangers of proceeding pro se or had sufficient background
to understand the risks of self-representation. We disagree, however, that a new trial
is the proper remedy.

Under both the federal and state constitutions,2 a criminal defendant in South
Carolina must be afforded the right to the assistance of counsel. Faretta, 422 U.S.
at 807. A defendant may waive this right and represent himself, so long as his waiver
is knowing and intelligent. State v. Barnes, 407 S.C. 27, 35–36, 753 S.E.2d 545,
550 (2014). To effectuate a valid waiver of the right to counsel under Faretta, the
accused must be (1) advised of his right to counsel and (2) adequately warned of the
dangers of self-representation. Watts v. State, 347 S.C. 399, 402, 556 S.E.2d 368,
370 (2001). "It is the [circuit court]'s responsibility to determine whether there is a
competent, intelligent waiver by the defendant." Id. The type of warnings and
procedures that should be required before allowing a waiver of the right to counsel
depends on the particular stage of the proceedings in question. Iowa v. Tovar, 541
U.S. 77, 89–90 (2004). "Warnings of the pitfalls of proceeding to trial without
counsel . . . must be 'rigorous[ly]' conveyed[,] . . . [h]owever, . . . at earlier stages . .
. a less searching or formal colloquy may suffice." Id. at 89 (quoting Patterson v.
Illinois, 487 U.S. 285, 298 (1988)).

"While a specific inquiry by the [circuit court] expressly addressing the
disadvantages of a pro se defense is preferred, the ultimate test is not the [circuit
court]'s advice but rather the defendant's understanding." Watts, 347 S.C. at 402,
556 S.E.2d at 370 (quoting Wroten v. State, 301 S.C. 293, 294, 391 S.E.2d 575, 576
(1990)). In the absence of this specific inquiry by the circuit court, the appellate
court will look to the record to determine whether the defendant had a sufficient
background or if he was apprised of his rights by some other source. See id.;
Gardner v. State, 351 S.C. 407, 412, 570 S.E.2d 184, 186 (2002); see also State v.
Cash, 309 S.C. 40, 43, 419 S.E.2d 811, 813 (Ct. App. 1992) (listing factors courts

2
U.S. Const. amend. VI; S.C. Const. art. I, § 14.
consider when determining the sufficiency of a defendant's background). "If the
record demonstrates the defendant's decision to represent himself was made with an
understanding of the risks of self-representation, the requirements of a voluntary
waiver will be satisfied." Wroten, 301 S.C. at 294, 392 S.E.2d at 576.

Here, the record reflects that no adequate Faretta warning was given by the
courts at any stage of the proceedings. At the preliminary hearing, the municipal
court indicated it had merely "cautioned" Frazier that he should not go forward
without an attorney. Such general warnings are inadequate. See State v. Bryant, 383
S.C. 410, 416, 680 S.E.2d 11, 14 (Ct. App. 2009). The record does not include any
mention by the municipal court of the specific dangers of proceeding pro se.
Likewise, the Faretta colloquy between Frazier and the circuit court was inadequate.
While the court properly advised Frazier of his (1) right to representation, it failed
to mention (2) any dangers of proceeding without counsel. Further, the record does
not reflect that Frazier had sufficient background to understand the dangers of self-
representation. He was twenty-five years old with a ninth grade education, was
unrepresented by counsel throughout the entire matter, self-described his charges as
"frivolous," and the record does not reflect that he had been through a criminal trial
prior to the instant matter. See Gardner, 351 S.C. at 413, 570 S.E.2d at 187 (finding
the fact that the defendant had a twelfth grade education, had been represented by
counsel on a previous charge to which he pled guilty, and had an attorney when he
was first charged in the present matter insufficient to demonstrate that he was aware
of the dangers of self-representation); Osbey v. State, 425 S.C. 615, 620–21, 825
S.E.2d 48, 51 (2019) (finding the background of a defendant who had two prior drug
convictions insufficient to plead guilty to a third drug offense without warnings of
the dangers of self-representation).

"The record in this case fails to show that there was a valid waiver of the right
to counsel. Therefore, the [next] issue is what remedy is appropriate." State v. Cash,
304 S.C. 223, 224, 403 S.E.2d 632, 633 (1991).

"The typical remedy for failing to show a knowing and intelligent waiver of
counsel is to remand to the [circuit] court for an evidentiary hearing to determine
whether the waiver was, in fact, knowingly and intelligently made." In re
Christopher H., 359 S.C. 161, 169, 596 S.E.2d 500, 505 (Ct. App. 2004). "The
justice of [such a] case does not require a new trial, but the appellant is entitled to a
factual determination by the lower court on the 'intelligent waiver' issue." State v.
Dixon, 269 S.C. 107, 109, 236 S.E.2d 419, 420 (1977). "However, this court can
grant an appellant a new trial without an evidentiary hearing if it is clear that a
hearing on remand would serve no useful purpose." In re Christopher H., 359 S.C.
at 169, 596 S.E.2d at 505; see also Cash, 304 S.C. at 225, 403 S.E.2d at 634
("[E]xcept in extraordinary cases where it is clear that a hearing on remand would
serve no useful purpose, the remedy when the record fails to show a knowing and
intelligent waiver of the right to counsel will be a remand for a Dixon hearing.").

Here, a full hearing on the issue has not been held, and this case does not rise
to the level of "extraordinary" as was the case in In re Christopher—when the courts
failed to both (1) adequately advise the accused of his right to counsel and (2)
adequately warn him of the dangers of self-representation pursuant to Faretta. See
In re Christopher H., 359 S.C. at 169–70, 596 S.E.2d at 505. Further, the accused
in that case was only sixteen years old with a ninth grade education, had a full scale
IQ of seventy-four, and had been to family court only once before. Id. In the instant
matter, it is unclear from the record if Frazier had previously been through a trial,
knew the nature of his charges or the possible penalties, the extent to which his prior
counsel informed him of his rights, the level of "caution" provided by the municipal
court before the preliminary hearing formally began, whether he had the opportunity
to speak to a lawyer of his choosing before trial (and whether this lawyer warned
him about the dangers of self-representation), or whether he received warnings about
the dangers of proceeding pro se from any other source. Therefore, the proper
remedy is to remand for an evidentiary hearing, where both Frazier and the State can
present evidence on the issue. See Cash, 304 S.C. at 225, 403 S.E.2d at 634 ("Both
the prosecution and the defense will be permitted to present evidence on this issue.");
cf. State v. Moore, 343 S.C. 282, 288 n.5, 540 S.E.2d 445, 448 n.5 (2000) ("Given
that a full hearing has been conducted and a full record exists, a remand for a
hearing . . . is unnecessary.").

CONCLUSION
Based on the foregoing, we remand for an evidentiary hearing to determine
whether Frazier's waiver was knowingly and intelligently made.

REMANDED.

SHORT, THOMAS, and GEATHERS, JJ., concur.