Hook v. State

1

Brian R. Hook, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.

No. 23A-PC-876

Court of Appeals of Indiana

October 26, 2023

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.

Appeal from the Wayne Superior Court The Honorable Gregory A. Horn Judge Trial Court Cause Nos. 89D02-1312-FA-34 89D02-2104-PC-5

APPELLANT PRO SE BRIAN R. HOOK PENDLETON, INDIANA

ATTORNEYS FOR APPELLEE THEODORE E. ROKITA ATTORNEY GENERAL OF INDIANA SIERRA A. MURRAY DEPUTY ATTORNEY GENERAL INDIANAPOLIS, INDIANA

MEMORANDUM DECISION

BROWN JUDGE

[¶1] Brian R. Hook appeals the denial of his petition for post-conviction relief. We affirm.

Facts and Procedural History

[¶2] On December 5, 2013, the State charged Hook under cause number 89C01-1312-FA-34 ("Cause No. 34") with multiple offenses and alleged he was an habitual offender based upon convictions for operating a motor vehicle while intoxicated as a class D felony under cause number 89D03-1008-FD-121 ("Cause No. 121") in 2011 and operating a motor vehicle in a manner that endangered a person as a class D felony under cause number 89D03-1112-FD-518 ("Cause No. 518") in 2012.^[1] On January 9, 2015, the State filed an amended information under Cause No. 34 charging Hook with Count I, burglary as a class A felony; Count II, aiding, inducing or causing burglary as a class A felony; Count III, aiding, inducing, or causing battery as a class C felony; and Count IV, battery as a class C felony.^[2] On May 13, 2014, the State charged Hook under cause number 89C01-1405-FC-50 ("Cause No. 50") with battery resulting in serious bodily injury as a class C felony.

[¶3] On January 15, 2015, Hook and the State filed a plea agreement under Cause Nos. 34 and 50 as well as cause number 89C01-1312-FD-461 ("Cause No. 461").

Pursuant to the agreement, Hook agreed to plead guilty under Cause No. 34 to battery as a class B felony as a lesser included offense of Count I, the habitual offender allegations pursuant to Ind. Code § 35-50-2-8, and battery as a class A misdemeanor under Cause No. 50 as a lesser included offense. The State agreed to dismiss all remaining counts in Cause Nos. 34 and 461. The plea agreement provided that Hook would be sentenced to twenty years with no time suspended for Count I under Cause No. 34 and that the sentence would be enhanced by an additional twenty years because Hook was an habitual offender. It provided that Hook would be sentenced to a consecutive sentence of one year under Cause No. 50. The plea agreement also stated that Hook waived the rights to "appeal his plea of guilty" and "appeal any sentence imposed by the Court, under any standard of review, including, but not limited to, an abuse of discretion standard and the appropriateness of the sentence under Indiana Appellate Rule 7(B), so long as the Court sentences [Hook] within the terms of the plea agreement." Appellant's Appendix Volume II at 14.

[¶4] On January 16, 2015, the court entered an order entering a judgment of conviction for burglary as a class B felony under Cause No. 34, finding that Hook admitted to "the allegations set forth in the Information For Habitual Offender," and adjudicating him to be an habitual offender. Id. at 53. On February 26, 2015, the court sentenced Hook under Cause No. 34 to twenty years enhanced by twenty years based upon the adjudication of Hook as an habitual offender.

[¶5] On April 26, 2021, Hook filed a verified petition for post-conviction relief which listed Cause Nos. 34 and 50. On August 5, 2022, Hook filed a request to amend his petition and an amended petition for post-conviction relief alleging that he was deprived of effective assistance of counsel when his counsel failed to properly investigate the habitual offender enhancement, failed to properly advise him of the habitual offender statute and case law, misled him concerning the habitual offender sentence, failed to raise and properly argue that he could not plead guilty to being an habitual offender, and failed to file a notice of appeal "pursuant to the Habitual Offender violations." Id. at 73 (emphasis omitted).

[¶6] On January 24, 2023, the court held an evidentiary hearing at which Hook appeared pro se. Hook introduced and the court admitted a declaration in which he asserted that his trial counsel, Attorney Austin Shadle, advised him that, pursuant to Breaston v. State, 907 N.E.2d 992 (Ind. 2009), his "Habitual Enhancement would be ran [sic] concurrent to [his] underlining [sic] count of Burglary giving [him] 16 years of actual time to serve rather than a life sentence from which [he] believed without question." Exhibits Volume I at 30. He stated Attorney Shadle did not advise him that Breaston was "about sentencing multiple Habitual Offenders Convictions Consecutive to one another." Id. He also asserted that Attorney Shadle did not advise him that his prior convictions made him ineligible for the habitual offender enhancement, the two prior unrelated felonies were "traffic violations under Title 9, I.C. § 9-30-10-4, and they had their own Habitual Offender Enhancements separate from Title 35, 35-50-2-8 Enhancements." Id.

[¶7] Upon questioning by Hook, Attorney Shadle, testified: "I believe in every instance you were charged with the Habitual Offender Enhancement in each one of those and I do remember yes, reviewing the Charging Information, both on my own, both with staff attorneys with the Indiana Public Defender Counsel, as well as with you, yes." Transcript Volume II at 26. When asked if he recalled what the prior felonies "were for the Habitual," he answered: "I think there were three Driving while Intoxicated offenses. I think two of them were unrelated for purposes of underlying offenses. I think - what I'm saying is one of the three, if I remember correctly, did not qualify because it was not unrelated." Id. at 26-27. Attorney Shadle stated:

When somebody is facing quite a lot of years on a felony plus a habitual offender enhancement, we were looking at what your potential risk is so, often times when I'm consulting with the client, when I was consulting with you, I was advising you of what your potential risk was if you were to go to trial on all three cases and lose. What's the maximum number of years that you're facing. And the Breaston case stands for the rule that if you're convicted of multiple habitual offender enhancements, that habitual offender sentences have to run concurrently with each other.

Id. at 29. Attorney Shadle testified that he believed that Hook's prior unrelated offenses qualified Hook to be found to be an habitual offender.

[¶8] When asked what he remembered when advising him concerning the plea bargain and the habitual offender allegation, Attorney Shadle answered:

Well, that was a big issue in your case because you were potentially facing thirty years on the Habitual Offender Enhancement and so, my, of course, advice to you was that you would be - is in your note that you're facing potentially ninety-one-year sentence and that your co-defendant had received a seventy-two-year sentence or had been found guilty and convicted for a seventy-two-year sentence. And although, neither of us liked the plea that was offered, that forty years that you could serve forty do twenty and potentially get four years knocked off the twenty, I think, if I remember right, I have sixteen and then I have seventeen over that, that was probably because there was probably another year. Do six months tacked on to that because of the battery, so that seemed like that was saving your life over having to serve a seventy-two-year sentence that [your co-defendant] would end up getting.

Id. at 30-31.

[¶9] Hook asked: "So, you also didn't advise me that traffic violations have their own habitual statute separate from Title 35?" Id. at 31. Attorney Shadle answered: "Well, what I remember advising you is that those underlying offenses for Driving while Intoxicated, that were misdemeanors enhanced to D Felonies because you had prior Driving while Intoxicated offenses, those would qualify as prior, unrelated felonies - ." Id. He stated: "I advised you that you did qualify as a habitual offender and if you . . . went to trial, you would be found guilty or that would be true, that you were a habitual offender based upon your underlying offenses." Id. at 33. He indicated that he did not file a notice of appeal because "[t]his was under a plea agreement that you agreed to and were sentenced to" and Hook never asked for an appellate attorney or asked to file an appeal. Id. at 34.

[¶10] On cross-examination, Attorney Shadle testified that, as a matter of practice, he routinely covered the habitual offender enhancement in great detail with each of his clients who were subject to that enhancement. He testified that he determined the timing of the prior felony convictions to ensure they met the statutory requirements and confirmed Hook had two prior unrelated felonies. He indicated that he confirmed with Hook that he had the prior felony convictions. When asked if he told Hook that the habitual offender enhancement would be served concurrently with the underlying crime, he answered: "No, absolutely not." Id. at 43. He testified that he told Hook "[t]hat that would be an added on - that Habitual Offender Enhancement would be tacked on or in addition to his underlying sentence on his - the underlying offenses." Id. He agreed with the characterization that the Breaston case stood for the concept that "if you have a person who has multiple pending cases with multiple habitual offenders attached, those habitual offender enhancements cannot...