Hines v. State, Appellate Case No. 2017-002632

CourtCourt of Appeals of South Carolina
Writing for the CourtKONDUROS, J.
Citation868 S.E.2d 387,435 S.C. 476
Parties Travis HINES, Petitioner, v. STATE of South Carolina, Respondent.
Docket NumberAppellate Case No. 2017-002632,Opinion No. 5877
Decision Date08 December 2021

435 S.C. 476
868 S.E.2d 387

Travis HINES, Petitioner,
v.
STATE of South Carolina, Respondent.

Appellate Case No. 2017-002632
Opinion No. 5877

Court of Appeals of South Carolina.

Heard April 13, 2021
Filed December 8, 2021
Rehearing Denied February 24, 2022


Clarence Rauch Wise, of Greenwood, for Petitioner.

Attorney General Alan McCrory Wilson and Assistant Attorney General Michael Jacob Neubauer, both of Columbia, for Respondent.

KONDUROS, J.:

435 S.C. 481

In this post-conviction relief (PCR) action, Travis Hines (Petitioner) appeals the denial of his PCR application as to his guilty plea for distribution of heroin, third offense. He contends he did not waive his right to counsel with a full understanding of his rights and the consequences of self-representation. Petitioner also maintains the PCR court erroneously found the State "turned over all evidence as [it] received it" because the State did not allow Petitioner to view video evidence that allegedly depicted him involved in a controlled drug purchase. We affirm.

FACTS/PROCEDURAL HISTORY

A grand jury indicted Petitioner for distribution of heroin. At a December 15, 2015 hearing, the State informed the circuit court Petitioner "was previously before the [c]ourt last term to enter ... a [guilty] plea .... He informed the [c]ourt at that time that he was unhappy with [his attorney, Chris] Wellborn[,] as his counsel. So this hearing has been scheduled on ... a motion to relieve counsel ...." Petitioner confirmed he wanted to relieve Wellborn and that he was "prepared to go forward without a lawyer." Petitioner clarified, however, that he intended to hire another attorney. The State indicated it planned to serve Petitioner with notice of its intent to seek a life without parole (LWOP) sentence immediately after the hearing, and it planned to call Petitioner's case for trial the following month. Petitioner stated he understood his case would be called for trial the following month and still wanted to relieve Wellborn. The circuit court relieved Wellborn as Petitioner's counsel. Petitioner acknowledged he originally had a court-appointed attorney before hiring Wellborn. The circuit court stated, "[Y]ou have been through two lawyers. The [c]ourt would not appoint you any more lawyers." The court then stated:

At some point if you don't have an attorney I will have to go through and warn you in detail about representing yourself because that will be ... what you are left with. If you have not hired an attorney by [next month], ... we'll go over and make sure [you] understand your right about representing yourself.
435 S.C. 482

Petitioner responded, "Okay." The State served Petitioner with its intent to seek an LWOP sentence and stated a fifteen-year plea offer would expire "at the conclusion of this [c]ourt term." The State explained Petitioner was eligible for an LWOP sentence due to prior convictions for distribution of ecstasy within proximity of a school and distribution of cocaine within proximity of a park.

A plea waiver form, signed by Petitioner on December 15, 2015, the same day as the hearing, informed Petitioner of his right to an attorney. It stated, "I understand an attorney would be of benefit to me, and since I am not an attorney, there is a danger in my representing myself." Petitioner initialed next to the warning. At a December 17, 2017 plea hearing, Petitioner appeared pro se. The

868 S.E.2d 390

State confirmed Petitioner was pleading guilty to distribution of heroin, third offense, "a statutory felony that carries with it no less than ten years [and] up to thirty years and a possibility of a fine up to [f]ifty thousand dollars." The State also noted Petitioner's charge was "a serious offense." The State indicated it was dismissing "an accompanying proximity charge" and Petitioner was pleading to a negotiated sentence of fourteen years’ imprisonment. The State declared that after speaking with Petitioner following the December 15 hearing, it "ha[d] no doubt in [Petitioner's] intelligence or his understanding of the proceedings." The State informed the plea court Petitioner "indicated ... he wishe[d] to proceed on his own." The plea court and Petitioner had the following exchange:

[The court]: [Petitioner], how old are you?

[Petitioner]: Twenty-nine.

[The court]: How far did you go in school?

[Petitioner]: I'm in college right now.

....

[The court]: What do you do -- Do you have a job too?

[Petitioner]: Yes, sir.

[The court]: What do you do?

[Petitioner]: I'm an electrician's helper.

[The court]: You have a right to have an attorney represent you in regard to this charge[,] and if you cannot afford one[,] the State would be required to appoint an attorney to represent you within some limits. That is[,] you would
435 S.C. 483
be appointed an attorney to represent you if you wish. If you could not afford one[,] the limitation being that you are assigned an attorney and that would be your attorney. It[’]s dangerous for you to proceed without an attorney since you're not one and there is a benefit in having an attorney represent you. Do you understand that?

[Petitioner]: Yes, sir.

[The court]: Do you wish to have an attorney in regard to this charge or give up that right?

[Petitioner]: I give up that right.

[The court]: I find [Petitioner] has freely[,] voluntarily[,] knowingly[,] and intelligently[,] understanding the benefits of counsel and the danger of self[-]representation[,] exercise[d] his right to proceed pro s[ ]e.

The plea court informed Petitioner of the charge against him, its potential sentence, and the consequences of the charge being classified as "serious." Petitioner stated he understood and wished to plead guilty. Similarly, Petitioner stated he understood his trial-related rights and wished to waive them by pleading guilty. The plea court accepted Petitioner's plea and the negotiated sentence. Petitioner pled guilty to distribution of heroin, third offense, and the plea court sentenced him to a negotiated sentence of fourteen years’ imprisonment.

Petitioner did not directly appeal; however, he filed an application for PCR. At his PCR hearing, Petitioner explained that at his first plea hearing, the court would not accept his plea because he stated he was not satisfied with Wellborn's representation. He added, "I never really wanted to fire him but when the [court] asked me that[,] that's what happened." Petitioner testified,

We never had a hearing after that to ask me why I didn't want him to be my lawyer or anything like that. The next time I was in court[,] all I knew is I was relieving Mr. Wellborn and I was going pro se. I never wanted to go pro se. I said I was going to get a lawyer. So obviously I didn't want to proceed pro se. I know nothing about the law.

Petitioner asserted he attempted to hire another attorney but was unable to do so because his trial date was approaching and the amount of time was insufficient for the attorney to prepare for trial. He stated he then decided to plead guilty because he could not prepare for trial himself and his plea

435 S.C. 484

offer would soon expire. Petitioner testified he had discussed with the State that he "didn't want to go to jail for a long time" and "had kids." He testified the State "scratched out the [fifteen] and put [fourteen] and said that's the best I can do for you." When asked what he understood about proceeding without an attorney, Petitioner answered, "Nothing really. I just knew if I didn't go ahead

868 S.E.2d 391

and take the plea they were going to give me [LWOP]." Petitioner alleged he was not made aware of the dangers of proceeding without counsel. Specifically, Petitioner stated the plea court did not make him aware of his right to a direct appeal and did not question him as to if he actually wanted to proceed pro se and why he did not have a lawyer. Petitioner asserted that if the PCR court granted his application, he "would definitely go to trial," despite his exposure to an LWOP sentence.

Petitioner testified he did not review his discovery materials with Wellborn. He stated, "Really we were waiting on the video tape. That's all it was. We were waiting on the video tape. We couldn't take a plea." Petitioner testified he and Wellborn discussed waiting to view the video before deciding whether to plead guilty. He stated he hired Wellborn in April 2015, but the State did not allow Wellborn to view the video until November 2015. Petitioner stated he "learned [from Wellborn] that [he] was on the video but ... there was basically no drug transaction." According to Petitioner, the video depicted him "doing something with a plastic bag." He added, "It looked like I probably was messing with drugs." Petitioner testified Wellborn informed him "[he] never gave anybody anything on the tape," but Wellborn nonetheless told him he "looked like [he] was guilty" and advised him to plead guilty.

Wellborn testified he told Petitioner that if the video did not depict a drug sale, that would be a potential defense. He stated he did not feel comfortable or believe it was appropriate to advise...

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