I respectfully dissent. Although I am sympathetic with the majority’s desire to protect Petitioner’s right to jury trial, in my view our precedents compel affirmation of the post-conviction relief (PCR) court.
The question whether a defendant knowingly and voluntarily waived his right to jury trial is determined not only from the trial record but also from the record of the PCR hearing. See Harres v. Leeke, 282 S.C. 131, 133, 318 S.E.2d 360, 361 (1984) (“[T]he voluntariness of a guilty plea is not determined by an examination of the specific inquiry made by the sentencing judge alone, but is determined from both the record made at the time of the entry of the guilty plea and the record of the post-conviction relief hearing.” (citation omitted)); Roddy v. State, 339 S.C. 29, 33, 528 S.E.2d 418, 420-21 (2000) (same). This standard applies to the waiver of fundamental rights, including the right to trial by jury. See Brown v. State, 317 S.C. 270, 272, 453 S.E.2d 251, 252 (1994) (“An on-the-record waiver of a constitutional or statutory right is but one method of determining whether the defendant knowingly and intelligently waived that right.... [Where the record is silent, r]eview of this issue is better left to a post conviction relief proceeding where the facts surrounding the trial can be fully explored.” (internal citations and quotation marks omitted)); Roddy, 339 S.C. at 33, 528 S.E.2d at 421 (addressing voluntariness of guilty plea and noting that guilty plea involves waiver of right to jury trial); Harres, supra (voluntariness of guilty plea); Spoone v. State, 379 S.C. 138, 665 S.E.2d 605 (2008) (waiver of right to appeal).
Thus, the question whether Petitioner’s waiver was knowing and voluntary was one for the PCR court, and its finding must be upheld if any evidence in the record supports it. See Roddy, 339 S.C. at 33-35, 528 S.E.2d at 420-21 (applying any evidence standard and reversing PCR court’s grant of relief based in part on evidence from PCR hearing); Brannon v. State, 345 S.C. 437, 439, 548 S.E.2d 866, 867 (2001) (applying any evidence standard and remanding for PCR court to hold evidentiary hearing on issue whether withdrawal of PCR application was knowing and voluntary); Spoone, 379 S.C. 138, 665 S.E.2d 605 (affirming PCR court’s determination that *651waiver of appellate rights was knowing and voluntary despite lack of specific questioning by plea court on defendant’s understanding of waiver). In this case, the PCR court found that the waiver was knowingly and voluntarily made by Petitioner, and trial counsel’s testimony at the PCR hearing is evidence in the written record that supports that finding. Thus, under our standard of review, we must affirm.
Further, I disagree that there was no colloquy between the court and Petitioner or Petitioner’s counsel. Such a colloquy occurred when the trial court inquired whether Petitioner wished to waive his right to trial by jury and trial counsel specifically assented.
Moreover, even if Petitioner’s waiver of jury trial were invalid, he would not be entitled to relief. Prejudice is not presumed except in certain limited circumstances, and these do not include improper waiver of jury trial. See Strickland v. Washington, 466 U.S. 668, 691-93, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Thus, Petitioner must show prejudice. This he cannot do, as no facts were in dispute at trial. Petitioner admitted the theft, and his version of the facts did not materially differ from the State’s version. His theory at trial was strictly legal: that he did not use force or intimidation to steal the property but only to retain it and escape, and thus the State could not prove the elements of armed robbery.
Therefore, I would affirm the order of the PCR court.
HEARN, J., concurs.