State v. Ford

• Court: Court of Appeals of South Carolina
• Decided: October 2, 2003
• Docket: 2003-UP-578
• Status: Unpublished

Opinion

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

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The State,        Respondent,

v.

Derrick Ford,        Appellant.

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Appeal From Sumter County
Howard P. King, Circuit Court Judge

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Unpublished Opinion No. 2003-UP-578
Submitted July 15, 2003 – Filed October 2, 2003   

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AFFIRMED

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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.