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Hilton v. State

Supreme Court of South Carolina

February 28, 2018

Kenneth Hilton, Petitioner,
v.
The State, Respondent. Appellate Case No. 2015-002140

          Submitted February 15, 2018

         ON WRIT OF CERTIORARI

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

          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.

          FEW JUSTICE

         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. ...


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