Hamilton v. State

233 N.E.3d 461

Kevin HAMILTON, Appellant-Defendant

v.STATE of Indiana, Appellee-Plaintiff

Court of Appeals Case No. 23A-PC-15

Court of Appeals of Indiana.

Filed April 12, 2024

Appeal from the Allen Superior Court, The Honorable Frances C. Gull, Judge, Trial Court Cause No. 02D06-1903-PC-000025

Attorney for Appellant: Stacy R. Uliana, Bargersville, Indiana

Attorneys for Appellee: Theodore E. Rokita, Indiana Attorney General, Evan Matthew Comer, Deputy Attorney General, Indianapolis, Indiana

Felix, Judge.

Statement of the Case

[1] Kevin Hamilton filed a petition for post-conviction relief ("PCR"), alleging ineffective assistance of trial counsel, ineffective assistance of appellate counsel, and that new evidence exists regarding sentencing. When he filed the petition, he also filed a motion for change of judge (the "Motion"). The PCR court denied both Hamilton’s petition and the Motion. Hamilton appeals those denials and presents four issues for our review, which we revise and restate as the following two issues:

1. Whether the PCR court clearly erred when it denied the Motion;

2. Whether the PCR court clearly erred when it denied Hamilton’s PCR petition.

[2] We affirm.

Facts and Procedural History

Trial, Sentencing, and Direct Appeal

[3] In 2017, a jury convicted Hamilton of murder, robbery as a Level 2 felony, and an enhancement for use of a firearm in the commission of a felony. We have previously set out the facts underlying those convictions:

On August 13, 2016, Hamilton and his friend, Devyn Yancey ("Yancey"), were exchanging text messages regarding the fact that marijuana they had purchased from Brian Quintana ("Quintana") was ten grams short. Hamilton and Yancey decided to rob Quintana the next day, during an arranged buy.

Via text, Yancey assured Hamilton that Quintana would have only one person with him, if anyone, and that no one would be armed. Hamilton said he would bring his .9–millimeter handgun. Referring to the robbery, Hamilton texted, "Sounds easy. Let’s do it."

On August 14, 2016, Hamilton picked up Yancey, and they drove to the parking lot of the Woodbridge Apartments in Allen County, where Quintana was waiting in his car. Yancey and Hamilton entered Quintana’s car; Yancey sat in the passenger seat, and Hamilton, brandishing his gun, sat in the back. Seeing the handgun, and understanding that he was being robbed, Quintana tiled to wrestle the gun out of Hamilton’s hand. Yancey went around to the driver’s side door and started hitting Quintana. This allowed Hamilton to secure his gun and exit the car. As Yancey and Quintana continued to struggle in the front seat of the car, Hamilton fired his gun through the back windshield, striking Quintana in the right lower chest. Yancey grabbed a bag of Quintana’s marijuana, and he and Hamilton fled from the scene.

When police arrived at the scene, Quintana told them that Hamilton had shot him. Following a search, police tracked down Hamilton and arrested him. Quintana died from his injuries, and on August 18, 2016, Hamilton was charged with murder, felony murder, robbery as a Level 2 felony, and an enhancement for use of a firearm in the commission of a felony. A jury trial was conducted from March 7 through 9, 2017. … Hamilton was found guilty of all charges.

Hamilton v. State, 95 N.E.3d 218, No. 02A03-1704-CR-932, 2017 WL 6626533, slip op. at ¶¶ 3–5 (Ind. Ct. App. Dec. 29, 2017) (record citations omitted), trans. denied.

[4] At trial and sentencing, John Bohdan represented Hamilton. At the sentencing healing, Bohdan presented four mitigating factors: (1) Hamilton was a minor—17 years old—at the time of the offense, (2) Hamilton lacked an adult criminal history, (3) the circumstances of the crime were unlikely to reoccur, and (4) Hamilton was the father of a young son. In particular, Bohdan argued that Hamilton had "an undeveloped juvenile mind," which resulted in "the tragic results of what happened [not being] as foreseeable for" Hamilton. Sent. Tr. Vol. I at 6. Bohdan also argued that Hamilton, who was already a father of one child, had a "good influence on his child’s upbringing." Id. The trial court heard testimony from Quintana’s father about how much he missed his son. The trial court also reviewed Hamilton’s presentence investigation report and letters from Hamilton’s mother and girlfriend.

[5] Hamilton addressed the trial court, as well:

It doesn’t matter what I say, it will never explain how sorry I am. And I don’t expect you to forgive me, I wouldn’t. … I never had the intention to take your son’s life. … I would give my life for him to have his back, but I can’t. The only thing I can do though is sit in prison for the rest of my life. And if that’s what I have to do to make things right then I’ll do it and I'm sorry. … I don’t want to be defined by what I did when I was a kid. And I'm not gonna blame that on me being a kid, I just – I was dumb…. I’m not innocent, I know I'm guilty. I know I was guilty, I just don’t agree with what was brought to me. Murder, I know I’m not guilty of murder. I'm not a murdere[r], I'm not a killer. I could never. But what I did, someone did die and I know I did that.

Sent. Tr. Vol. I at 11–12.

[6] The trial court found two aggravating factors: (1) Hamilton’s failed attempts at rehabilitation after two informal juvenile adjustments, and (2) the nature and circumstances of the offense. The trial court found two mitigating factors: (1) Hamilton was a minor at the time of the offense, and (2) Hamilton’s incarceration would be an undue hardship for his son. The trial court did not consider Hamilton’s lack of an adult criminal history to be a mitigating factor because Hamilton had a history of juvenile involvement. The trial court also declined to consider as a mitigating factor that the circumstances of Hamilton’s offense were unlikely to reoccur. Based on the aggravating and mitigating factors, the trial court sentenced Hamilton to a total of 74 years in the Indiana Department of Correction: 55 years for murder, 9 years for robbery as a Level 3 felony,¹ and 10 years for use of a firearm in the commission of a felony, all to be served consecutively.

[7] On direct appeal, Thomas Allen represented Hamilton. Allen raised three issues on Hamilton’s behalf for our consideration:

I. Whether the trial court erred in merging Hamilton’s felony murder conviction with his murder conviction;

II. Whether reducing Hamilton’s conviction from Level 2 felony robbery to Level 3 felony robbery for purposes of sentencing remedied double jeopardy violations under Indiana’s Double Jeopardy Clause; and

III. Whether the trial court erred by allowing the jury to hear evidence on the enhancement—use of a firearm in the commission of an offense causing death or serious bodily injury—at the same time the jury heard evidence on the other counts.

Hamilton, No. 02A03-1704-CR-932, slip op. at ¶ 1. We affirmed Hamilton’s convictions,id. at ¶¶ 9, 17, 23, 24, and the Indiana Supreme Court denied transfer, Hamilton v. State, 97 N.E.3d 236 (Ind. 2018).

Post-Conviction Proceedings

[8] On March 12, 2019, Hamilton filed a PCR petition, which he later amended. In addition to his initial petition, Hamilton also filed the Motion (requesting a change of judge) along with an accompanying affidavit by Hamilton (the "Affidavit"). The PCR court denied the Motion without hearing because "the Affidavit attached does not support a rational inference of personal bias or prejudice against the Petitioner." Appellant’s App. Vol. II at 27. The PCR court also denied Hamilton’s motion to reconsider this issue, as well as Hamilton’s subsequent motion to certify these denials for interlocutory appeal.

[9] At the evidentiary hearing, Hamilton questioned Bohdan about his current employment. Bohdan testified that he is the magistrate for the Allen Superior Court and that he is employed by all three Criminal Division judges, including the PCR judge. Hamilton then renewed the Motion, and the PCR court denied it once again, noting "that the [A]ffidavit does not contain any information, as I indicated in my Order, on historical bias against the Defendant." Tr. Vol. II at 8. Hamilton then proceeded to present evidence regarding his claims that he received ineffective assistance of trial counsel, he received ineffective assistance of appellate counsel, and he is entitled to a new sentencing hearing based on newly discovered evidence. After the hearing, Hamilton' and the State submitted proposed orders. The PCR court ultimately denied Hamilton’s petition. This appeal ensued. Additional facts are set forth below.

Discussion and Decision

1. Denial of the Change of Judge Motion

[1] [10] Hamilton argues that the PCR court clearly erred when it denied the Motion. Hamilton specifically contends that the PCR court’s decision is in violation of Indiana Post-Conviction Rule 1(4)(b), Indiana Code of Judicial Conduct ("CJC") Rule 2.11(A), and the Due Process Clause of Fourteenth Amendment² of the United States Constitution. We address each basis in turn.

a. Post-Conviction Rule 1(4)(b)

[2, 3] [11] Post-Conviction Rule 1(4)(b) provides in relevant part:

Within ten (10) days of filing a petition for post-conviction relief under this rule, the petitioner may request a change of judge by filing an affidavit that the judge has a personal bias or prejudice against the petitioner. The petitioner’s affidavit shall state the facts and the reasons for the belief that such bias or prejudice exists, and shall be accompanied by a certificate from the attorney of record that the attorney in good faith believes that the historical facts recited in the affidavit are true. A change of judge shall be granted if the historical facts cited in the affidavit support a rational inference of bias or prejudice.

(Emphases added). A bias is "personal" under Post-Conviction Rule 1(4)(b) "if it stems from an extrajudicial source—meaning a source separate from the evidence and argument presented at the proceedings." Pruitt v....