Hooker v. State

799 N.E.2d 561

Isaac HOOKER, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.

No. 82A01-0304-PC-128.

Court of Appeals of Indiana.

December 5, 2003.

Transfer Denied February 19, 2004.

Susan K. Carpenter, Public Defender of Indiana, Victoria Christ, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.

Steve Carter, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Isaac Hooker appeals the post-conviction court's denial of his Petition for Post-Conviction Relief. The parties raise the following issues for review:

1. Whether Hooker's freestanding claims regarding (a) the State's motion to withdraw the parties' oral plea agreement in 1988, and (b) his 1991 re-sentencing, are available for post-conviction review.

2. Whether the post-conviction court erred when it concluded that Hooker's appellate counsel and counsel at his 1991 re-sentencing were not ineffective.

3. Whether the attempted murder and accomplice liability jury instructions given at Hooker's trial constitute fundamental error.

We affirm.

FACTS AND PROCEDURAL HISTORY

We stated the relevant facts in our 1990 memorandum decision as follows:

During the early morning hours of July 29, 1988, William Shepard (Shepard) discovered an intruder who had entered Shepard's Apollo Liquor Store (store) through a hole in the roof. During the encounter, Shepard suffered a gunshot wound to the left side of his chest and blunt trauma to his head which caused him to forget details of the encounter, including the identity of the intruder. Police investigators discovered money and cigarettes had been taken from the store.

During the early hours of the same day, Hooker reported to the hospital, using a fictitious name, to seek treatment for a gunshot wound. Officer Hubbard and Detective Kelly, [who were] at the hospital to look into the circumstances surrounding Hooker's injury, decided to take [Hooker] to the police station to investigate the matter further. At the station, swabs of Hooker's hands were taken and his clothes were removed. Later that day, Hooker was arrested and charged with Burglary of the store and Robbery of and Attempted Murder of Shepard.¹

Hooker v. State, No. 82A01-8909-CR-362, slip op. at 2, 554 N.E.2d 839 (Ind.Ct.App. May, 14, 1990).

On November 28, 1988, the day of trial, the State and Hooker, by counsel, informed the trial court that the parties had reached a plea agreement. Because the parties had not reduced the agreement to writing, defense counsel recited the terms of the agreement on the record. Specifically, the following colloquy occurred at the guilty plea hearing:

DEFENSE COUNSEL: Your Honor. My understanding of the agreement is as follows: Mr. Hooker stands charged with three Counts, one Count of attempted murder, one Count of robbery, as a Class A felony, another Count of burglary, as a Class A felony. In return for Mr. Hooker's plea of guilty to Counts II and III which is the robbery and the burglary, the State of Indiana is going to dismiss the attempted murder, Count I. [The State is] going to recommend an executed sentence of twenty years. Mr. Hooker is going to give a statement, testify truthfully and fully in the Cause of any other co-defendants excepting his brother, David Hooker. And any statements or testimony that Isaac is going to give in furtherance of this agreement will not be used against David. He also agrees to take a polygraph as ...

COURT: Used against David or used against him?

DEFENSE COUNSEL: Used against David and, of course, not against him if this plea agreement doesn't pan out. At any rate what he says is not to be used against David and, of course, not against him if the plea agreement is not accepted.

The court then established a factual basis for Hooker's plea to burglary and robbery as an accomplice and advised Hooker of his constitutional rights. Following the advisement, the court stated in relevant part:

So let the record show that the defendant now having been fully advised of his rights, submits a written acknowledgement thereof, which is made a part of the record herein ... and the Court having found a factual basis for Count II, robbery as a Class A felony, now enters judgment accordingly. The Court further having found a factual basis for Count II, burglary, as a Class A felony, enters judgment accordingly. A pre-sentence investigation is ordered and sentencing is set for, how about December 18?

Immediately thereafter, Hooker gave a recorded statement in the presence of his counsel and the prosecutor in which he admitted his involvement in the crimes but stated that his brother David was not involved. On December 15, 1988, Hooker took a polygraph examination, the results of which were inconclusive. The State then obtained statements from other individuals which suggested that David had been involved in the crimes.

On December 19, 1988, the State moved to withdraw its offer that was previously presented to the court at the November 28 hearing. Hooker objected to the State's motion, and the trial court set the matter for a hearing and also vacated Hooker's sentencing date. Hooker then filed a motion to compel "consummation" of the plea agreement. At the hearing on the parties' opposing motions, the State argued that Hooker had failed to comply with the terms of the parties' agreement because the results of the polygraph examination indicated that he had lied about his brother's involvement in the crimes. Hooker responded that, according to the terms of the agreement, he was not required to pass the polygraph, only to submit to one, and that he had done all that was required of him under the agreement. Hooker further argued that he had relied to his detriment on the agreement and, thus, that the court should hold the State to the agreement. On January 10, 1989, the court issued its Order granting the State's motion to withdraw its offer and denying Hooker's motion to consummate the agreement, which provided in part:

FINDINGS OF FACT

1. The defendant was charged herein in a three count information, all counts being Class A felonies, the first, Attempted Murder, second, Robbery and the third, Burglary.

2. On November 28, 1988, with a jury waiting outside the Courtroom and outside the presence of the jury, and by leave of Court, the defendant withdrew his former plea of not guilty and entered a plea of guilty to the second and third counts pursuant to a sentencing recommendation read into the record. The Court did advise the defendant of his constitutional rights and the Court further found a factual basis for the defendant's plea. The Court found the defendant guilty of Count II, Robbery, as a Class A felony, and Count II, Burglary, as a Class A felony.

3. The defendant, during the advisement of his rights, recognized that part of the plea agreement required him to give a statement, testifying truthfully and fully in the cause of any other co-defendant, except for his brother, David Hooker, and it was further agreed that any such statement would not be used against his brother, David, nor against the defendant himself. The defendant further agreed to take a polygraph examination. The State did further agree to dismiss the attempted murder count and recommended that the defendant be sentenced to a total of twenty years. A copy of that part of the advisement referred to was admitted as Defendant's A.

The court further found that Hooker had given a statement following the November 1988 hearing and subsequently took a polygraph examination, the results of which were inconclusive. The court noted inconsistencies in Hooker's statements and the statements of other witnesses and determined that Hooker's statement "is indicative of not being fully truthful as required by the plea agreement." The court concluded "[t]hat the defendant, as part of the plea agreement entered into on November 28, 1988, was to testify truthfully and fully in this cause and that he has failed to do so." Accordingly, the court granted the State's motion to withdraw its offer and denied Hooker's motion to compel. Hooker's counsel then filed a motion asking the court to certify its order for interlocutory appeal, but the court denied his motion.

In April 1989, Hooker was tried by jury. Shepard testified at trial but could not recall details of the crime. He stated that he remembered seeing one intruder in the store, and he ordered that intruder to lie down on the floor.² He also remembered that the intruder called to "one of his buddies." But Shepard could not identify Hooker as one of the intruders on the night in question.

Jerry Marsh testified pursuant to a plea agreement. While he denied involvement in the crimes, he stated that he helped David dispose of a rifle the night Hooker had been shot and that he gave false statements to police. Marsh implicated David as being involved in the crimes at the store. Although a footprint recovered from the scene matched a pair of Marsh's shoes, Marsh stated that David was wearing his shoes that night. Police recovered the rifle that Marsh and David had attempted to hide and recovered dried blood from the stock that matched Marsh and Shepard, but not Hooker. Hooker, whose apartment was located above the store, testified that he saw that Shepard had been injured and entered through the roof to aid him. He stated further that Shepard shot him as Hooker attempted to assist him. David took Hooker to the hospital, where Hooker gave a false name and address. Hooker had gunshot residue on the back of his hand and on his shirt, and blood removed from the cash register inside the store was similar to Hooker's. Hooker had been shot at close range, and the bullet which struck him had entered at a downward angle. Police recovered a .38 caliber revolver with rounds, two of which were spent, from the store. Again, Shepard testified that he had...