Alan James Hoover v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 7, 2016
• Docket: 55A01-1508-PC-1286
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Sep 07 2016, 9:28 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

APPELLANT PRO SE ATTORNEYS FOR APPELLEE Alan James Hoover Gregory F. Zoeller Pendleton, Indiana Attorney General of Indiana

Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Alan James Hoover, September 7, 2016 Appellant-Defendant, Court of Appeals Case No. 55A01-1508-PC-1286 v. Appeal from the Morgan Circuit Court State of Indiana, The Honorable Matthew Hanson, Appellee-Plaintiff. Judge Trial Court Cause No. 55C01-1506-PC-868

Altice, Judge.

Case Summary

Court of Appeals of Indiana | Memorandum Decision 55A01-1508-PC-1286 | September 7, 2016 Page 1 of 6 [1] Alan Hoover appeals from the denial of his petition for post-conviction relief.

Hoover presents three issues for our review, one of which we find dispositive:

Did the trial court abuse its discretion by summarily denying his petition for

post-conviction relief (PCR petition) without a hearing?

[2] We reverse and remand.

Facts & Procedural History

[3] On October 29, 2008, the State charged Hoover with murder, a felony, and

aggravated battery, a Class B felony. On February 2, 2009, the State amended

the charging information by replacing the aggravated battery count with felony

murder, and adding a count for robbery as a Class A felony. A four-day jury

trial commenced on March 23, 2009. The jury found Hoover guilty of robbery,

acquitted him of murder, and was unable to reach a verdict as to felony murder.

The trial court held a sentencing hearing on April 22, 2009, and sentenced

Hoover to twenty-five years imprisonment. Hoover filed a notice of appeal the

same day.

On direct appeal, Hoover argued that (1) the acquittal on the murder charge

and the inability of the jury to reach a decision on the felony murder charge

rendered his conviction for robbery as a Class A felony inconsistent; (2) the

evidence was insufficient to support his robbery conviction; (3) the trial court

erred in instructing the jury on felony murder; (4) the trial court erred by not

instructing the jury on the lesser offense of theft; and (5) double jeopardy

principles prohibited retrial on felony murder. This court affirmed Hoover’s

Court of Appeals of Indiana | Memorandum Decision 55A01-1508-PC-1286 | September 7, 2016 Page 2 of 6 conviction for robbery and further concluded that Hoover could not be retried

on the felony murder count. Hoover v. State, 918 N.E.2d 724 (Ind. Ct. App.

2009), trans. denied.

[4] On July 30, 2010, Hoover filed a PCR petition, which was withdrawn without

prejudice on October 23, 2013. On June 5, 2015, Hoover, pro se, filed the

instant PCR petition. Hoover raised four issues: (1) his appellate counsel1 was

ineffective, (2) he was denied due process when the “self-defense absolving

affects [were] not applied to all counts/elements”, (3) he was denied due

process because he was not provided notice of the nature of the charges against

him, and (4) his trial counsel was ineffective for failing to raise mitigating

circumstances at sentencing. Appellant’s Appendix at 4. Pursuant to Hoover’s

request, he was appointed a public defender. The State filed an answer to

Hoover’s PCR petition generally denying the allegations therein. On July 30,

2015, the public defender filed a notice of non-representation, asserting that

Hoover’s claims were not meritorious or in the interest of justice. See Ind. Post-

Conviction Rule 1(9)(c). The following day the trial court entered an order

summarily denying Hoover’s PCR petition without a hearing. Hoover now

appeals.

Discussion & Decision

1 It appears that the same attorney represented Hoover at trial and on appeal.

Court of Appeals of Indiana | Memorandum Decision 55A01-1508-PC-1286 | September 7, 2016 Page 3 of 6 [5] Post-conviction proceedings afford petitioners a limited opportunity to raise

issues that were unavailable or unknown at trial and on direct appeal. Conner v.

State, 711 N.E.2d 1238, 1244 (Ind. 1999); see also Ind. Post-Conviction Rule

1(1)(a). Such proceedings are not “super appeals” through which convicted

persons can raise issues that they failed to raise at trial or on direct appeal.

McCary v. State, 761 N.E.2d 389, 391 (Ind. 2002). Post-conviction proceedings

are civil in nature, and petitioners bear the burden of proving their grounds for

relief by a preponderance of the evidence. P-C.R. 1(5).

[6] Post-Conviction Rule 1(4) provides two different subsections under which a

post-conviction court may deny a petition without a hearing—subsection (f)

and subsection (g). Subsection (f) provides that a post-conviction court “may

deny the petition without further proceedings” if “the pleadings conclusively

show that [the] petitioner is entitled to no relief [.]” Ind. Post–Conviction Rule

1(4)(f). Subsection (g) provides that a post-conviction court:

may grant a motion by either party for summary disposition of the petition when it appears from the pleadings, depositions, answers to interrogatories, admissions, stipulations of fact, and any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.

P-C.R. 1(4)(g). Disposal of a petition under each of these two subsections leads

to a different standard of review on appeal. Allen v. State, 791 N.E.2d 748, 752

(Ind. Ct. App. 2003), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 55A01-1508-PC-1286 | September 7, 2016 Page 4 of 6 Here, there was no motion filed by either party requesting summary disposition.

Rather, the day after the public defender filed its notice of non-participation, the

trial court summarily denied Hoover’s PCR petition, finding that his requested

relief was “not warranted.” Appellant’s Appendix at 22. Thus, the summary

disposition in this case was pursuant to subsection (f).

[7] When a court disposes of a petition under P-C.R. 1(4)(f), we essentially review

the lower court’s decision as we would a motion for judgment on the pleadings.

Allen, 791 N.E.2d at 752. The court errs in disposing of a petition in this

manner unless “the pleadings conclusively show that petitioner is entitled to no

relief.” P-C.R. 1(4)(f). If the petition alleges only errors of law, then the court

may determine without a hearing whether the petitioner is entitled to relief on

those questions. Allen, 791 N.E.2d at 753 (Clayton v. State, 673 N.E.2d 783, 785

(Ind. Ct. App. 1996)). However, if the facts pled raise an issue of possible

merit, then the petition should not be disposed of under section 4(f). Id. “This

is true even though the petitioner has only a remote chance of establishing his

claim.” Id. (quoting Clayton, 673 N.E.2d at 785).

[8] It is well-settled that a post-conviction proceeding is generally the preferred

forum for adjudicating claims of ineffective assistance of counsel because the

presentation of such claims often requires the development of new evidence not

present in the trial record. See Jewell v. State, 887 N.E.2d 939, 941-42 (Ind.

2008); Woods v. State, 701 N.E.2d 1208, 1220 (Ind. 1998). Hoover asserted a

Court of Appeals of Indiana | Memorandum Decision 55A01-1508-PC-1286 | September 7, 2016 Page 5 of 6 claim of ineffective assistance of counsel.2 Although Hoover did not specifically

delineate how his counsel was ineffective at this stage, his claim is not subject to

summary denial without a hearing. Indeed, the pleading does not “conclusively

show that [Hoover] is entitled to no relief.” See P-C.R. 1(4)(f). The trial court

erred in denying Hoover’s PCR petition without a hearing. We therefore

reverse the trial court’s order denying Hoover’s PCR petition and remand with

instructions to conduct a hearing thereon.

[9] We reverse and remand.

[10] Bailey, J. and Bradford, J., concur.

2 Hoover presented other claims in his PCR petition, some of which may fall under his claim of ineffective assistance of appellate counsel.

Court of Appeals of Indiana | Memorandum Decision 55A01-1508-PC-1286 | September 7, 2016 Page 6 of 6