Summary
The South Carolina Supreme Court held that the petitioner did not waive his right to appeal by failing to appear for trial. Because there was no knowing and intelligent waiver, the court granted a belated appeal and affirmed the conviction under Rule 220(b)(1), SCACR. The matter was remanded to the post-conviction relief court to determine whether the petitioner’s absence resulted from communication with counsel and, if so, whether a new trial was warranted.
Topics
Practice areas
Questions Presented
- Whether a defendant who fails to appear for trial waives the right to appeal the resulting conviction.
- Whether petitioner knowingly and intelligently waived his right to a direct appeal when counsel ceased handling the appeal without ensuring substitute or appointed representation.
- Whether petitioner's allegation that his absence from trial resulted from a communication from counsel must be resolved in the PCR proceeding.
Holdings
- A defendant's failure to appear at trial does not, by itself, waive the defendant's right to appeal the resulting conviction, particularly where the defendant is in South Carolina custody when the appeal is pursued.
- Petitioner did not knowingly and intelligently waive his right to appeal, and he was entitled to a belated appeal.
- The allegation that petitioner's absence at trial resulted from a communication from counsel is a matter for PCR rather than direct appeal.
Key quotations
“While petitioner did not appear at his trial, this does not act to waive his right to appeal from his conviction.” (580)
“Since petitioner did not knowingly and intelligently waive his right to appeal, he is entitled to a belated appeal.” (580)
“Petitioner’s allegation his absence at trial was due to a communication from counsel is an issue for PCR rather than direct appeal.” (581)
Factual background
Petitioner was released on bond after being arrested for first-degree criminal sexual conduct with a minor but failed to appear for trial and was tried in absentia. After apprehension, he appeared for the opening of his sealed sentence, which was reduced from thirty years to twenty-three years. Petitioner and his counsel filed notices of appeal, but the appeal was dismissed after the initial brief and designation were not filed. At the PCR hearing, petitioner testified that he believed counsel was pursuing the appeal, while counsel testified that he had not secured payment or arranged representation through the Office of Appellate Defense.
Procedural history
Petitioner was convicted in absentia of first-degree criminal sexual conduct with a minor after failing to appear for trial. His sentence was opened and reduced from thirty years to twenty-three years after he was apprehended. His direct appeal was dismissed when he failed to file the required initial brief and designation of matter. The PCR court denied relief, finding that petitioner had destroyed his right to appeal by remaining a fugitive. The Supreme Court granted certiorari, held that petitioner had not waived his right to a direct appeal, affirmed the conviction on the reviewed direct-appeal issues, and remanded the PCR matter for findings concerning petitioner's allegation that counsel's communication caused his absence at trial.
Remand instructions
The PCR court must make findings and rule on petitioner's allegation that his absence from trial was caused by a communication from counsel. If the PCR court finds the allegation meritorious, petitioner is entitled to a new trial. The conviction was affirmed under Rule 220(b)(1), SCACR, on the direct-appeal issues reviewed by the Supreme Court.