                    THE STATE OF SOUTH CAROLINA
                         In The Supreme Court

            Kenneth Hilton, Petitioner,

            v.

            The State, Respondent.

            Appellate Case No. 2015-002140

                         ON WRIT OF CERTIORARI

                         Appeal from Cherokee County
                       J. Derham Cole, Plea Court Judge
                  Roger L. Couch, Post-Conviction Relief Judge

                              Opinion No. 27772
             Submitted February 15, 2018 – Filed February 28, 2018

                                  AFFIRMED

            Appellate Defender Robert M. Pachak, of Columbia, for
            Petitioner.

            Attorney General Alan McCrory Wilson and Assistant
            Attorney General Valerie Garcia Giovanoli, both of
            Columbia, for Respondent.

JUSTICE FEW: Kenneth Lee Hilton appeals the denial of post-conviction relief
(PCR) claiming the PCR court did not obtain a knowing and intelligent waiver of
his right to counsel before allowing him to represent himself at his PCR trial. We
find the PCR court obtained a valid waiver of counsel, and affirm.

      I.    Facts and Procedural History
Hilton lured a woman into his vehicle in Gastonia, North Carolina, on the pretense
that he would drive her to a store so she could cash a check. When the victim realized
Hilton was not driving to the store as he told her, she called 911 from her cell phone.
Though she apparently did not speak to the 911 operator, she left the line open while
Hilton drove her to a remote cemetery near Blacksburg, in Cherokee County, South
Carolina. The 911 operator recorded the entire forty-five minute call. The recording
contains the victim's statement, "Please pull over and let me out. I want to go home."
Hilton responded, "If you don't calm down, I'm going to beat you so badly that the
police won't recognize you." Hilton also told the victim he intended to sexually
assault her. The victim stated Hilton repeatedly hit her in the face and throat as he
drove. At the cemetery, Hilton forced the victim to remove her shorts and to perform
oral sex on him. After he attempted to penetrate her with his penis, she was able to
get away. Wearing only a shirt, the victim ran into the woods and hid until officers
found her.

Hilton's DNA was matched through a national database. After he was arrested, he
admitted he gave the victim a ride that day, though he initially denied he sexually
assaulted her. He later pled guilty to kidnapping and assault with intent to commit
criminal sexual conduct in the second degree. When asked at the PCR trial about
the quality of the State's evidence, plea counsel explained, "We had the actual
recording of what went on, and when you listen to it, there is no defense to these
charges." The plea court sentenced him to forty-five years in prison. He did not
appeal.

Hilton filed a PCR application alleging ineffective assistance of counsel. The State
filed a return requesting a hearing, and the court appointed counsel to represent him.
Hilton filed a written motion to "dismiss" his appointed attorney. A few weeks later,
after learning his motion was set for a hearing, Hilton filed another motion, again
seeking "dismissal of PCR Court Appointed Attorney." At the hearing on Hilton's
motion, the PCR court informed him of his right to counsel but did not warn him of
the dangers of proceeding without an attorney. After the hearing, the PCR court
entered an order granting the motion to relieve counsel.

Almost a year later, Hilton appeared without an attorney before a second PCR court
(Judge Couch) for his PCR trial. The PCR court began by inquiring into Hilton's
waiver of his right to counsel. After the inquiry, discussed more fully below, the
PCR court allowed Hilton to proceed without counsel. Both sides presented
testimony. As a part of its presentation, the State informed the PCR court of Hilton's
seven prior convictions for criminal sexual conduct. The PCR court took the case
under advisement, and later issued a written order denying relief.
Hilton filed a petition for a writ of certiorari, arguing only that the PCR court erred
in allowing him to represent himself without a valid wavier of his right to PCR
counsel. We granted the petition.

      II.    Analysis

In Whitehead v. State, 310 S.C. 532, 426 S.E.2d 315 (1992), we recognized that Rule
71.1(d) of the South Carolina Rules of Civil Procedure "mandates the appointment
of counsel for indigent PCR applicants whenever a PCR hearing is held to determine
questions of law or fact." 310 S.C. at 535, 426 S.E.2d at 316. Rule 71.1(d) provides:

             If, after the State has filed its return, the application
             presents questions of law or fact which will require a
             hearing, the court shall promptly appoint counsel to assist
             the applicant if he is indigent. . . . Counsel shall insure that
             all available grounds for relief are included in the
             application and shall amend the application if necessary.

Rule 71.1(d), SCRCP. See also S.C. Code Ann. § 17-27-60 (2014) ("If the applicant
is unable to pay court costs and expenses of representation . . . these costs and
expenses shall be made available to the applicant . . . .").

We went on to hold in Whitehead that "when a PCR application is not dismissed
before a hearing is held, the PCR judge must appoint counsel or obtain a knowing
and intelligent waiver of that right by the applicant." 310 S.C. at 535, 426 S.E.2d at
316. As to what constitutes a valid waiver, we stated "the PCR applicant must be
made aware of the right to counsel and the dangers of self-representation." 310 S.C.
at 535, 426 S.E.2d at 316-17 (citing Prince v. State, 301 S.C. 422, 423-24, 392
S.E.2d 462, 463 (1990)).

Prince involved the petitioner's claim he did not make a valid waiver of his right to
counsel at his guilty plea, not at a PCR trial. 301 S.C. at 423, 392 S.E.2d at 463. As
we indicated in Whitehead, however, the Prince structure also applies in a PCR
proceeding. 310 S.C. at 535, 426 S.E.2d at 316-17. Thus, there are two requirements
the PCR court must meet before allowing a PCR applicant to proceed without an
attorney. First, the court should make sure the applicant is aware of his right to
counsel; second, the court should ensure the applicant understands the dangers and
disadvantages of self-representation. See Richardson v. State, 377 S.C. 103, 105-
06, 659 S.E.2d 493, 494-95 (2008) (discussing the two requirements for a valid
waiver of counsel in a PCR proceeding); Whitehead, 310 S.C. at 535, 426 S.E.2d at
316-17 (same); Prince, 301 S.C. at 423-24, 392 S.E.2d at 463 (same in a criminal
proceeding).

As to the first requirement—the PCR court must advise the applicant of his right to
counsel—Hilton specifically mentioned Rule 71.1(d) in his motion to "dismiss"
counsel. He wrote in the motion that Rule 71.1(d) "provides . . . appointment of
counsel . . . if there is a material issue requiring a hearing." In addition, the first PCR
court informed Hilton at the initial hearing he had the right to counsel, explaining
that "under the law you have a right to have court-appointed counsel to assist you in
a post-conviction relief action." Hilton responded that he understood. Finally,
before allowing Hilton to proceed without an attorney at the PCR trial, the second
PCR court again informed Hilton he had the right to counsel,

             Court:        Mr. Hilton . . . it appears that you are
                           representing yourself in this matter. Is that
                           true?

              Hilton:      Yes.

              ....

              Court:       And are you aware or have you been made
                           aware that, should you wish to have an
                           attorney, an attorney could be appointed for
                           you . . . ?

              Hilton:       I do not need an attorney, sir. . . . I chose to
                            be pro se.

The PCR court satisfied the first requirement.

As to the second requirement—the PCR court must ensure the applicant understands
the dangers and disadvantages of self-representation—Hilton addressed in his filings
with the PCR court some of the things with which counsel could assist him. For
example, in his first motion he wrote he was aware he bore the burden of proving
his PCR claims, stating "after all, it is I who has the burden of establishing my
entitlement to the relief I seek." He also wrote he was aware of his right to amend
his PCR application, a right specifically mentioned in Rule 71.1(d). In his second
motion, he asked for time in which "to file his own pro se Amendment to his
Application." Hilton's filings also indicate he was aware an attorney could help him
with discovery, but that he chose to conduct discovery himself. Hilton also stated,
"I fully understand my claims, and . . . I have the ability to prepare and represent my
own claims before the Honorable Court." Finally, Hilton attached an "affidavit" to
both motions in which he swore, "I make this waiver, to dismiss my Court appointed
Attorney, with the full understanding of the dangers of self-representation and the
consequences of proceeding pro se."

The second PCR court had the following discussion with Hilton before proceeding
with the PCR trial,

             Court:       Mr. Hilton, -- I want to be sure that you're
                          aware of the kinds of things that an attorney
                          might do to be of service to you in this matter.

             Hilton:      Right.

             Court:       Are you aware of those things?

             Hilton:      Yes, I am.

             Court:       Do I need to go over those with you at this
                          time?

             Hilton:      No, sir.

This dialogue is by no means a perfect effort at ensuring Hilton understood the
dangers and disadvantages of self-representation, primarily because Hilton chose not
to discuss the particular ways in which an attorney could be helpful. However, the
nature of a PCR proceeding is such that a court's explanation of the dangers and
disadvantages of self-representation is necessarily abbreviated when compared to
such an explanation in a criminal case. In this PCR case, Hilton specifically stated
in his affidavit he had a "full understanding of the dangers of self-representation and
the consequences of proceeding pro se." At the PCR trial, the court offered to
explain "the kinds of things that an attorney might do to be of service to you," and
Hilton declined. While that unaccepted offer might not be sufficient in other
circumstances, the record here is clear Hilton was already aware of several of the
specific advantages of having an attorney. These include Hilton's knowledge that
an attorney could assist him in conducting discovery, amending his application, and
meeting his burden of proof.
If Hilton had been willing to allow the court to explain, the court would certainly
have specifically discussed other advantages of having an attorney that can become
important in PCR trials, such as an attorney's understanding of substantive law, and
her skill at questioning witnesses to assist the applicant in meeting his burden of
proof. Nevertheless, this record indicates—though does not clearly reveal—Hilton
was aware of these advantages.1 In addition, Hilton has not argued on appeal any
one point as to which he contends the court's explanation was inadequate.

At the initial hearing, the PCR court clearly erred by failing to ensure Hilton
understood the dangers and disadvantages of self-representation before granting the
motion to relieve his appointed attorney. Whitehead, 310 S.C. at 535, 426 S.E.2d at
316-17; see also Richardson, 377 S.C. at 105-06, 659 S.E.2d at 494-95 (repeating
our holding in Whitehead that "if a PCR application presents questions of law or fact
requiring a hearing, . . . state law provides that counsel must be appointed or a
knowing, intelligent waiver of the right to counsel must be obtained"). The precise
question before us, however, is whether the second PCR court (Judge Couch) erred
by going forward with the PCR trial with Hilton representing himself. After
considering the entire record, we find Hilton's statements in his motions, combined
with Judge Couch's rejected offer to explain the things an attorney could do to assist
him, meet the second requirement of Whitehead—that the court should ensure the
applicant understands the dangers and disadvantages of self-representation. See
Wroten v. State, 301 S.C. 293, 294, 391 S.E.2d 575, 576 (1990) (holding, even in
the context of a criminal case, "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.").

      III.   Conclusion




1
  As to an attorney's ability to help him understand substantive law, Hilton wrote in
his first motion, "I further hereby state that I fully understand my claims and issues
that I intend to raise. Believe me I have been studying every day since trial. I have
the ability to prepare and represent my own claims before the Honorable Court." As
to an attorney's ability to question witnesses, the second PCR court offered at the
beginning of the PCR trial to discuss reappointing counsel if Hilton changed his
mind, and the court discussed a non-lawyer's difficulty questioning witnesses as
Hilton began his cross-examination of plea counsel.
The PCR court obtained a valid waiver from Hilton of his right to counsel before
allowing him to represent himself in a PCR trial. Therefore, the PCR court's decision
to deny relief is AFFIRMED.

BEATTY, C.J., KITTREDGE, HEARN and JAMES, JJ., concur.
