Can You File a PCR if You Represented Yourself at Trial?

In Lewis v. State, the SC Supreme Court answers the question, “Can you file a PCR if you represented yourself at trial?”

As with most legal questions, the answer is, “Maybe, it depends…”

One thing is certain, however. No one should ever represent themselves in a criminal trial, even if you don’t get along with your attorney, and even when you believe that your attorney is incompetent.

Below, we will look at Lewis v. State and what it means for pro-se criminal defendants in SC, including:

• When you can file a PCR action if you are a pro-se defendant,
• What Lewis will be allowed to argue in his PCR,
• What Lewis will be prohibited from arguing because he was a pro-se defendant, and
• Why no one should ever represent themselves in a criminal trial in South Carolina.

Can You File a PCR Action if You Represented Yourself at Trial?

Lewis fired his attorney on the morning of his trial in Florence, SC, telling the court that his attorney was not prepared for trial and did not communicate with him.

He then proceeded to trial without an attorney, represented himself, did not request a continuance (it likely would not have been granted anyway), stipulated to the admissibility of the “buy video” and the drugs, did not object to the admission of the chemist’s report identifying the substance as heroin, was convicted of distribution of heroin, and was sentenced to 12 years in prison.

Lewis did not file a notice of appeal, and, when he filed a PCR action claiming ineffective assistance of counsel, the PCR court summarily dismissed his claims without giving him a hearing…

What Lewis Can Argue in His PCR

The PCR court found that Lewis was not entitled to post-conviction relief because he represented himself at trial and, therefore, “assumed responsibility for correcting any pretrial

errors…”

The SC Supreme Court disagreed, finding that there is no “bright-line rule forbidding pro se defendants from alleging ineffective assistance of pretrial counsel.” Although a pro-se defendant might assume responsibility for correcting pretrial errors, see, Cook v. Ryan, a defendant cannot be expected to correct pretrial errors when the defendant takes over the case on the morning of the trial…

The Supreme Court remanded Lewis’ case to the PCR court for an evidentiary hearing, finding that there is a “genuine issue of material fact as to whether Lewis had an opportunity to correct pretrial counsel’s alleged errors” as to some of his PCR claims, including pretrial counsel’s alleged:

• Failure to adequately investigate the criminal charges,
• Failure to communicate with material witnesses whose testimony would have been favorable to the defense, and
• Failure to advise as to the right to appeal and to file a notice of appeal on his behalf.

At the PCR hearing, Lewis’ PCR attorney will need to prove that 1) pretrial counsel was ineffective and 2) Lewis’ case was prejudiced by the ineffective assistance of counsel.

For example, if pretrial counsel failed to communicate with key witnesses, PCR counsel will need to communicate with those witnesses, present their testimony at the hearing, and show that there is a reasonable probability that the outcome would have been different if pretrial counsel has subpoenaed those witnesses to the trial.

What Lewis Cannot Argue in His PCR

There are some issues that Lewis cannot argue in his PCR case that have been waived because he represented himself at trial or because they are meritless.

For example:

• Lewis cannot claim that pretrial counsel failed to request a preliminary hearing when the record shows that Lewis himself requested the preliminary hearing within the time limit, and
• Lewis cannot claim it was ineffective assistance of counsel to stipulate to the admission of the drugs or the “buy video” because Lewis himself stipulated to the admission of the drugs and video.

Why No One Should Ever Represent Themselves in a Criminal Case

If Lewis’ attorney had stipulated to the admission of the drugs, the chemist’s report, and the video, Lewis would have grounds for PCR if he could also show that the admission prejudiced his case.

No matter how incompetent the lawyer is, there will always be an avenue for relief either on direct appeal or in the PCR – unless you represent yourself at trial.

You don’t know the rules of evidence. You don’t know what SC’s appellate courts have said about chain of custody evidence. You don’t know why even the least experienced trial lawyer who has just graduated law school should never stipulate to the admission of drugs, a chemist’ report, a damaging video, or, really, anything in a criminal trial.

You don’t know courtroom procedure, how to pick a jury, how to talk to a jury, how to give an effective opening statement or closing argument, how to conduct an effective cross-examination, when to object to inadmissible evidence, when and how to offer evidence, when to sit down and shut up, or how to draft and propose jury instructions that fit the law and facts of your case.

If you think that your trial lawyer is incompetent, the harsh reality is that 1) you are probably more incompetent than your trial lawyer and 2) you will waive most of your PCR claims by attempting to represent yourself.

What Happens if Lewis Wins His PCR?

If Lewis wins his PCR claims, he may be granted a new trial where a new trial attorney can investigate his charges, prepare his case for trial, and, hopefully, try his case to a jury competently.

Got Axelrod?

If you have been charged with a crime in SC, if you have been convicted of a crime and need help filing your appeal or PCR action, or if you won an appeal or PCR and need help retrying your case, call now at 843-353-3449 or email us online to speak with a Myrtle Beach criminal defense lawyer on the Axelrod team today.