FOR PUBLICATION
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
ANTHONY HOGAN GREGORY F. ZOELLER Michigan City, Indiana Attorney General of Indiana
J.T. WHITEHEAD Deputy Attorney General Indianapolis, Indiana FILED Apr 19 2012, 9:16 am IN THE CLERK COURT OF APPEALS OF INDIANA of the supreme court, court of appeals and tax court
ANTHONY HOGAN, ) ) Appellant-Petitioner, ) ) vs. ) No. 20A03-1103-PC-158 ) STATE OF INDIANA, ) ) Appellee-Respondent. )
APPEAL FROM THE ELKHART SUPERIOR COURT The Honorable Stephen R. Bowers, Judge Cause No. 20D02-0806-PC-4
April 19, 2012
OPINION - FOR PUBLICATION
CRONE, Judge Case Summary
Anthony Hogan was convicted of criminal deviate conduct as a class A felony,
attempted rape, battery resulting in serious bodily injury, and being a habitual offender. On
direct appeal, we vacated his battery conviction on double jeopardy grounds. Thereafter,
Hogan sought post-conviction relief. Hogan claimed that: (1) trial and appellate counsel
failed to argue that a statement that he made to a detective was inadmissible for any purpose
because it was involuntary; (2) trial counsel failed to advise him of his right to a jury trial on
the habitual offender charge and appellate counsel should have argued that the record was
devoid of evidence of a valid waiver of that right; and (3) trial counsel should have requested
an instruction on criminal deviate conduct as a class B felony and appellate counsel should
have raised the issue as fundamental error. The post-conviction court denied Hogan’s
petition.
We affirm. Hogan did not present any evidence that his statement was made
involuntarily; thus, his first argument fails. Although it appears that a proper advisement of
rights and a personal waiver may not have been made on the record, trial counsel testified
that he informed Hogan of his right to a jury trial on the habitual offender enhancement, that
he had reviewed Hogan’s criminal record and believed that he was in fact a habitual offender,
and that Hogan agreed to admit to being a habitual offender in exchange for the State’s
agreement not to pursue certain aggravating factors. Hogan has not shown that he was
prejudiced, and therefore his second argument also fails. Finally, Hogan has not shown that
trial counsel’s decision to pursue an “all or nothing” strategy was unreasonable. Therefore,
2 he has not shown ineffective assistance in regard to the lack of an instruction on the lesser-
included offense.
Facts and Procedural History
The facts relevant to Hogan’s convictions were outlined in our opinion on direct
appeal:
On a few occasions in the summer and early fall of 2004, Hogan used illegal drugs with Mike Oelslager and his girlfriend, Tracy Kling. On October 5, 2004, Hogan came to the house Kling and Oelslager shared. Oelslager was not home at the time but Kling let Hogan in.
After the two talked for a few minutes, Hogan asked Kling if she wanted to have sex with him. She declined. Hogan grabbed her from behind, pinned one of her arms, picked her up, and carried her to her son’s bedroom. He told her he was going to have sex with her. To dissuade Hogan, Kling told him she was on her period and he stated he would have anal sex with her instead. He held Kling down and attempted to remove her underwear. She struggled against him, and he threatened to kill her.
Kling convinced him not to have sex with her in her son’s bedroom. Hogan pushed her out of the bedroom and onto the couch in the living room. He again attempted to remove her underwear. When Kling again stated she was on her period, Hogan told her to perform oral sex on him. He choked her and again threatened to kill her.
Kling broke free and jumped over a banister[, which resulted in a sprained ankle and a back injury]. Before she could get out the front door, Hogan caught her and slammed the door shut. He punched her twice in the head, hitting her eye, nose, and forehead, and causing her to bleed. He again threatened to kill her. Hogan used a shirt to wipe the blood from her face. He then took her back to the couch and forced her to perform oral sex on him. He left shortly afterward, taking the shirt with him.
Kling went to a neighbor’s house to call the police. After talking with police, Kling went to the hospital. She received stitches in her forehead, an injection for pain, and a prescription for pain medication.
3 Hogan v. State, No. 20A03-0606-CR-282, 2007 WL 1217990 at *1 (Ind. Ct. App. Apr. 26,
2007) (footnotes omitted), trans. denied.
Hogan was charged with class A felony criminal deviate conduct resulting in serious
bodily injury, attempted rape, battery resulting in serious bodily injury, and being a habitual
offender. On January 3, 2005, an initial hearing was held, and a public defender was
appointed to represent Hogan. Two days later, Detective D’Andre Biller (formerly Christian)
took Hogan’s statement without notifying counsel. Biller typed the statement, which Hogan
refused to sign afterward. The typed statement begins with an acknowledgment that he had
been advised of his rights, that he understood them, and that he was willing to talk to the
detective because he did not have “anything to hide.” Appellant’s App. at 37. The statement
says that Kling had consented to perform oral sex on Hogan in exchange for drugs and that
she had done so on multiple occasions. The conclusion of the statement reads, “Detective
Christian has asked me if I would be willing to give body standards [for DNA testing]. I
don’t have a problem with that but I don’t know why you need them because I already told
you she sucked my dick. I don’t want to sign a waiver for the body standards until I talk to
my attorney.” Id. at 39.
Hogan’s case was tried to a jury. Kling testified to the facts outlined above. Hogan
testified in his own defense and claimed that Kling had voluntarily performed oral sex in
exchange for drugs. On cross examination, the State sought to use Hogan’s statement to
Detective Biller to impeach him. Defense counsel objected, arguing that the statement had
been taken after counsel had been appointed and without notice to counsel. The court ruled
4 that the statement could be used for impeachment even if there had been a constitutional
violation. The State attempted to impeach Hogan several times, but although he
acknowledged speaking with the detective, he either denied making the statements in the
typed statement or asserted that he was unable to remember what he had told the detective.
He asserted that she had initiated the questioning, that she typed the statement in her own
words, that he did not sign her typed statement, and that his testimony may have been more
detailed than his statement to the detective. At the conclusion of the first phase of trial, the
jury found Hogan guilty of criminal deviate conduct resulting in serious bodily injury,
attempted rape, and battery resulting in serious bodily injury.
Thereafter, defense counsel informed the court that an agreement had been reached
with the State regarding the remaining issues:
Your Honor, with regard to the habitual offender stage, the State has also filed notice of intention to present aggravators in what would be a third proceeding. The State then intended to then try the issue of aggravators and have the jury find aggravators beyond a reasonable doubt. The defendant is willing to stipulate to his habitual offender status, provided that the State, and the State had indicated that they will, withdraw their intention to have the jury find aggravating circumstances and so that any aggravators that would probably be the role of the jury will not be found.
Id. at 43.1 The State then questioned Hogan about his criminal record. The trial court entered
convictions of class A felony criminal deviate conduct, attempted rape, and battery, attached
1 Hogan committed his offenses while the presumptive sentencing scheme was in effect, but his trial took place after our supreme court decided Smylie v. State, 823 N.E.2d 679 (2005), in which the court determined that this state would comply with Blakely v. Washington, 542 U.S. 296 (2004), by trying aggravating factors to a jury.
5 the habitual offender enhancement to the criminal deviate conduct conviction, and imposed
an aggregate sentence of sixty years.
Counsel was appointed to pursue a direct appeal. Appellate counsel raised four
arguments: (1) there was an insufficient factual basis to support the habitual offender
enhancement; (2) Hogan’s conviction of criminal deviate conduct resulting in serious bodily
injury must be set aside because the verdict form provided to the jury referred only to
“criminal deviate conduct” and not “criminal deviate conduct resulting in serious bodily
injury”; (3) Hogan’s convictions for criminal deviate conduct and battery resulting in serious
bodily injury were based on the same evidence and therefore violated the double jeopardy
clause of the Indiana Constitution; and (4) there was insufficient evidence that Hogan took a
substantial step toward raping Kling. We agreed with Hogan on the double jeopardy issue,
but affirmed as to the other three issues; therefore, we vacated his battery conviction.
Appellate counsel filed a petition for transfer to the supreme court, which was denied.
On April 27, 2008, Hogan filed a pro se petition for post-conviction relief. The State
Public Defender was appointed to represent Hogan, but withdrew after Hogan indicated that
he still wanted to pursue issues that the State Public Defender had found to be without merit.
Hogan amended his petition several times, but has not provided us with a complete copy of
his petition. As best as we can tell, Hogan’s claims were: (1) that trial and appellate counsel
failed to argue that his statement to the detective was inadmissible for any purpose because it
was involuntary; (2) that trial counsel failed to advise him of his right to a jury trial on the
habitual offender charge and that appellate counsel should have argued that the record was
6 devoid of evidence of a valid waiver; and (3) that trial counsel should have requested an
instruction on criminal deviate conduct as a class B felony (a lesser-included offense of the
class A felony, which requires proof of serious bodily injury) and that appellate counsel
should have raised the issue as fundamental error.2
Evidence was heard on June 30 and September 2, 2010. Concerning Hogan’s
statement to the detective, trial counsel testified that he thought that there was a possible
2 Hogan filed defective appendices on August 12 and August 30, 2011. On September 15, 2011, he filed an appendix that complied with all the technical rules, but lacked portions of the record. According to our docket, on November 4, 2011, the State filed a “Motion to Compel a Conforming Appendix,” requesting that Hogan be ordered to file an appendix that included the missing documents, including his petition for post- conviction relief. On November 14, 2011, we granted the State’s motion. Before receiving our order, Hogan filed a supplemental appendix that included most of the missing documents; the clerk filed it on November 10, 2011, pursuant to the prison mailbox rule. For purposes of citation, “Appellant’s App.” refers to the appendix filed on September 15, 2011, and “Supp. Appellant’s App.” refers to the supplemental appendix filed on November 10, 2011.
The supplemental appendix contains what appears to be a jumble of pages from various versions of his post-conviction petition. Despite our order of November 14, 2011, Hogan never submitted a complete, final copy of his petition; thus, determining the issues properly before us has presented a challenge. Hogan has divided his brief into seven arguments. The first four arguments address three issues: his claim that his statement to the detective was inadmissible even for impeachment, that he was not advised of his right to a jury trial on the habitual offender charge, and that the jury should have been instructed on criminal deviate conduct as both a class A and a class B felony. In the fifth argument, he explains why he feels that trial counsel is responsible for these errors, and in the sixth argument, he explains why he feels that appellate counsel is responsible for these errors. To the extent that the first four arguments are meant to be free-standing claims of trial error, we agree with the State that those issues are foreclosed because they were available, but not raised on direct appeal. Williams v. State, 808 N.E.2d 652, 659 (Ind. 2004) (“If an issue was known and available on direct appeal, but not raised, it is procedurally defaulted as a basis for relief in subsequent proceedings.”). We will consider those arguments only to the extent that they are relevant to his ineffective assistance of counsel claims.
Finally, Hogan’s seventh argument asserts that the post-conviction court failed to enter findings of fact and conclusions of law on additional claims “identified in the petition as 8(d), 8(d)(1), and 9(e)(2).” Appellant’s Br. at 39. Without his petition, we are unable to determine what these claims are and whether they were properly before the post-conviction court. Hogan was specifically ordered to provide a copy of his petition, and he has failed to do so; therefore, we conclude that these additional issues are waived. See Ind. App. Rule 46(A)(8)(a) (“The argument must contain the contentions of the appellant on the issues presented, supported by cogent reasoning. Each contention must be supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on….”); Davis v. State, 835 N.E.2d 1102, 1113 (Ind. Ct. App. 2005) (“A party waives an issue where the party fails to develop a cogent argument or provide adequate citation to authority and portions of the record.”), trans. denied.
7 “violation of the professional rules of conduct or an evidentiary rule. There was never an
issue brought up … by you to me that you hadn’t understood that you had counsel and that
you hadn’t decided to waive it by talking.” PCR Tr. at 48-49. He stated that he felt that he
“made the best objection that … was available … at the time.” Id. at 61. The State asked
him, “Did you believe that the statement had been tak[en] involuntarily based on your review
of the police reports and talking with Mr. Hogan?” Id. at 92. Trial counsel responded
negatively.
Regarding the habitual offender phase of Hogan’s trial, trial counsel testified:
I cannot recall specifically the words I used to advise him. I can tell you that I recall telling him that we could proceed with the habitual phase and that the State is required to prove that sentencing enhancement to the jury or we could concede to it and in return we would receive some benefit and I’m, as I review this transcript just now, the benefit was the State’s agreement to withdraw their notice of aggravators to be tried to the jury.… I … reviewed Mr. Hogan’s criminal record with him directly and it was … my belief throughout the case that he was indeed was … a habitual offender and so I felt that we weren’t … really in a position to contest with any effectiveness the habitual offender stage, therefore any benefit, however small, would be a benefit in terms of the stipulation.
Id. at 97.
Regarding the jury instructions, trial counsel testified that he did not tender an
instruction on criminal deviate conduct as a class B felony because he wanted to avoid a
compromise verdict. Trial counsel stated that his primary strategy was to attack the victim’s
credibility due to her drug use around the time of the offense.
Appellate counsel testified that he had reviewed the trial transcript and raised what he
deemed to be the four strongest issues.
8 Hogan also called Detective Biller to testify. Detective Biller testified that she had not
been aware that Hogan had been appointed counsel. She stated that she read him a waiver of
rights and he said that he understood his rights, that he “didn’t have anything to hide,” and
that he was willing to talk. Id. at 110. She asserted that Hogan did not mention that he
already had counsel until she was finished taking his statement.
On February 8, 2011, the post-conviction court issued an order denying post-
conviction relief. The court found that the statement taken by Detective Biller was an
“obvious 6th Amendment violation,” but there was “no evidence that the statement was less
than voluntary.” Appellant’s Br. at 44. The court further held that it was permissible to use
the statement for impeachment purposes notwithstanding the violation:
The Supreme Court determined in Kansas v. Ventris that any statement in violation of a defendant’s Sixth Amendment right may be used for impeachment purposes. 129 S. Ct. 1841, 1847 (2009). The Petitioner argues that the case was published in 2009 and should not apply to his violation. However, the Court advised, “[o]ur precedents make clear the game of excluding tainted evidence for impeachment purposes is not worth the candle. The interests safe-guarded by such exclusion are ‘outweighed by the need to assure the integrity of the trial process.[’]” Id. at 1846, citing Stone v. Powell, 428 U.S. 465, 488 (1976). The Petitioner’s statement was properly used for impeachment purposes only.
Id. at 47. The court also found that trial counsel’s decision not to offer an instruction on a
lesser included offense of class A felony criminal deviate conduct was an acceptable trial
strategy. The court did not make any findings or conclusions on any additional issues that
Hogan may have raised. Hogan now appeals.
9 Discussion and Decision
The petitioner in a post-conviction proceeding bears the burden of proving the
grounds for relief by a preponderance of the evidence. Henley v. State, 881 N.E.2d 639, 643
(Ind. 2008). Hogan is appealing a negative judgment; therefore, he must show that the
evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached
by the post-conviction court. Id. at 643-44. “Although we do not defer to the post-
conviction court’s legal conclusions, a post-conviction court’s findings and judgment will be
reversed only upon a showing of clear error – that which leaves us with a definite and firm
conviction that a mistake has been made.” State v. Damron, 915 N.E.2d 189, 191 (Ind. Ct.
App. 2009), trans. denied.
Post-conviction proceedings do not afford a petitioner with a “super-appeal.”
Williams v. State, 808 N.E.2d 652, 659 (Ind. 2004). “If an issue was known and available on
direct appeal, but not raised, it is procedurally defaulted as a basis for relief in subsequent
proceedings.” Id.
To prevail on a claim of ineffective assistance of counsel, Hogan must show both that
counsel’s performance fell below an objective standard of reasonableness and that the
deficient performance so prejudiced him. Coleman v. State, 694 N.E.2d 269, 272 (Ind.1998)
(citing Strickland v. Washington, 466 U.S. 668 (1984)). There is a strong presumption that
counsel rendered adequate assistance. Id. “Evidence of isolated poor strategy, inexperience
or bad tactics will not support a claim of ineffective assistance.” Id. at 273. “Counsel’s
performance is evaluated as a whole.” Lemond v. State, 878 N.E.2d 384, 391 (Ind. Ct. App.
10 2007), trans. denied. To establish the prejudice prong of the test, the defendant must show
there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. Sims v. State, 771 N.E.2d 734, 741 (Ind. Ct. App.
2002), trans. denied. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. “Prejudice exists when the conviction or sentence resulted
from a breakdown in the adversarial process that rendered the result of the proceeding
fundamentally unfair or unreliable.” Coleman, 694 N.E.2d at 272. This standard applies to
both claims of ineffective assistance of trial and appellate counsel. Rhoiney v. State, 940
N.E.2d 841, 845 (Ind. Ct. App. 2010), trans. denied.
Our supreme court has recognized three types of ineffective assistance of appellate
counsel: (1) denial of access to appeal; (2) failure to raise issues that should have been
raised; and (3) failure to present issues well. Wrinkles v. State, 749 N.E.2d 1179, 1203 (Ind.
2001), cert. denied.
When a petitioner claims the denial of effective assistance of appellate counsel because counsel did not raise issues the petitioner argues should have been raised, reviewing courts should be particularly deferential to counsel’s strategic decision to exclude certain issues in favor of others, unless such a decision was unquestionably unreasonable. But this does not end our analysis. Even if we determine that counsel’s choice of issues was not reasonable, a petitioner must demonstrate a reasonable probability that the outcome of the direct appeal would have been different in order to prevail.
Taylor v. State, 840 N.E.2d 324, 338 (Ind. 2006) (citations and quotation marks omitted).
We must determine “(1) whether the unraised issues are significant and obvious from the
face of the record; and (2) whether the unraised issues are clearly stronger than the raised
11 issues.” Gray v. State, 841 N.E.2d 1210, 1214 (Ind. Ct. App. 2006) (quotation marks
omitted), trans. denied.
I. Admissibility of Statement
The State did not attempt to use Hogan’s statement as substantive evidence in its case-
in-chief, in effect conceding that his statement had been taken in violation of the Sixth
Amendment.3 The State argues that the statement was nevertheless admissible for
impeachment purposes pursuant to Kansas v. Ventris, 129 S. Ct. 1841 (2009). The State is
correct that a statement taken in violation of the Sixth Amendment right to counsel may be
admissible for impeachment, but to the extent that the State is arguing that Ventris permits it
to sidestep analysis of the voluntariness of the statement, we disagree.
While Ventris was incarcerated pending trial on murder and robbery charges, officers
planted an informant in his cell. According to the informant, Ventris confessed to shooting a
man and taking his keys, wallet, $350, and a vehicle. At trial, Ventris testified and claimed
3 At the beginning of the post-conviction hearing, the State stipulated that Hogan had been appointed counsel a few days before his statement was taken, that Hogan’s statement was taken without counsel present, that the statement was not used in the State’s case-in-chief, and that the statement was used to impeach Hogan when he elected to testify. PCR Tr. at 26-27.
In Michigan v. Jackson, 475 U.S. 625, 635-36 (1986), the Supreme Court ruled that once a criminal defendant invokes the Sixth Amendment right to counsel, a subsequent waiver of that right is presumed invalid if secured by police-initiated conversation. The Court later characterized this as a prophylactic rule. Michigan v. Harvey, 494 U.S. 344, 345 (1990). In Harvey, the Court held that violation of this prophylactic rule does not prevent the State from using the statement to impeach the defendant’s false or inconsistent testimony. Id. at 351.
Subsequent to Hogan’s trial, Jackson was overruled by Montejo v. Louisiana, 129 S. Ct. 2079, 2091 (2009). However, statements that are in fact involuntary remain invalid apart from Jackson. See id. at 2089.
12 that a co-defendant was responsible for the crimes. The State then used the informant’s
testimony for impeachment.
The Supreme Court stated that previous cases had not addressed the issue of when the
violation occurs – at the time of the interrogation or at the time the statement is admitted at
trial. The Court concluded that the Sixth Amendment right to counsel “is a right to be free of
uncounseled interrogation, and is infringed at the time of the interrogation.” Id. at 1846.
Therefore, the Court stated that Ventris’s case did not involve “the prevention of a
constitutional violation, but rather the scope of the remedy for a violation that has already
occurred.” Id. Citing several cases, the Court concluded that Ventris’s statement could still
be used for impeachment. Id. at 1847.
The Court did not discuss whether Ventris’s statement was actually involuntary (and
not just a violation of the “prophylactic” rules). The State appears to interpret Ventris to
mean that inquiry into the voluntariness of a statement is unnecessary as long as the statement
is only used for impeachment. We find nothing in Ventris that permits the State to sidestep
the issue of voluntariness. On the contrary, Ventris mentioned the holding in New Jersey v.
Portash that a Fifth Amendment violation occurs “whenever a truly coerced confession is
introduced at trial, whether by way of impeachment or otherwise.” Id. at 1845 (citing New
Jersey v. Portash, 440 U.S. 450, 458-59 (1979)).
Hogan is correct that in order for his statement to be admissible, it had to be voluntary.
When the voluntariness of a statement is challenged at the trial level, the State has the
burden of proving voluntariness beyond a reasonable doubt. Gentry v. State, 471 N.E.2d
13 263, 267 (Ind. 1984). The defendant is entitled to a hearing outside the presence of a jury,
and the trial court must find voluntariness before admitting it into evidence. Morgan v. State,
675 N.E.2d 1067, 1071-72 (Ind. 1996). Trial counsel objected to the use of Hogan’s
statement. Portions of the ensuing bench conference were inaudible and therefore were not
transcribed by the court reporter, but it appears that trial counsel objected solely on the basis
that Hogan’s statement had been taken without notice to counsel. As discussed above, this
fact does not prevent his statement from being used for impeachment.
Nevertheless, in post-conviction proceedings, it is the petitioner who bears the burden
of proof, and the record does not show that trial counsel had any basis for challenging the
voluntariness of the statement. Trial counsel testified that in reviewing the evidence and
speaking to Hogan, he had no reason to believe that the statement had been involuntary or
that Hogan had not understood that he was waiving his right to counsel. Trial counsel stated
that he believed that he had made the best objection available. Detective Biller testified that
she had advised Hogan of his right to counsel and that he indicated that he understood his
rights. She stated that Hogan had not mentioned that he already had counsel until the
conclusion of the statement. Although Hogan claimed otherwise in his trial testimony, this
testimony could rightly be considered self-serving. Appellate counsel testified that, in his
experience, it was not unusual for criminal defendants to make oral statements but refuse to
sign written statements because they did not believe that an oral statement carried the same
weight. Given the lack of evidence that the statement was involuntary, Hogan has not
14 persuaded us that the post-conviction court erred by finding that neither trial nor appellate
counsel was ineffective for failing to address the issue.
II. Habitual Offender
The right to a jury trial applies to habitual offender proceedings. Gonzalez v. State,
757 N.E.2d 202, 204-05 (Ind. Ct. App. 2001), trans. denied. The defendant is presumed not
to waive this right unless he affirmatively acts to do so. Id. at 205. The defendant must
express his personal desire to waive a jury trial, and that desire must be apparent from the
record in the form of a written waiver or a colloquy in open court. Id. “It is fundamental
error to deny a defendant a jury trial unless there is evidence of the defendant’s knowing,
voluntary and intelligent waiver of the right.” Reynolds v. State, 703 N.E.2d 701, 704 (Ind.
Ct. App. 1999).
The State notes, “It is possible that the trial court did not explicitly inform Hogan of
his right to have that evidence heard by a jury. Hogan’s record does not allow that
determination.” Appellee’s Br. at 16. Only select portions of the trial record were admitted
into evidence at the post-conviction hearing. It appears that we have the entire portion of the
transcript covering the habitual offender phase of the trial, but without a complete record, we
have no way of verifying that.
We note that at the post-conviction hearing, Hogan requested that the court take
judicial notice of the trial record, and the court told Hogan that it could not do that. The post-
conviction court was mistaken. Effective January 1, 2010, Indiana Evidence Rule 201 was
amended to permit courts to take judicial notice of “records of a court of this state.” The
15 hearing in this case commenced in June 2010. In Graham v. State, 947 N.E.2d 962, 964-65
(Ind. Ct. App. 2011), opinion on rehearing, we stated:
First, if a pro se PCR petitioner comes to court bearing a record, including a transcript or other documents, that he or she wants to use in support of his or her petition, the PCR court should ensure that the record is introduced into evidence…. Second, if a PCR court does in fact, on its own initiative or at the request of a party, take judicial notice of other court records in ruling upon a PCR petition, those records should be made part of the PCR record.… Nothing in either of these statements requires a PCR court to go searching for records in support of either party’s position or to become an advocate or investigator for either party.
It appears that Hogan had at least portions of the trial record with him. It is unclear whether
he attempted to tender the entire record to the court.
Giving Hogan the benefit of the doubt, we will review the portion of the transcript that
appears to cover the habitual offender proceedings. Trial counsel explained to the court that
an agreement has been reached – that Hogan would admit to being a habitual offender in
exchange for the State forgoing the aggravating circumstances that it had intended to prove to
the jury. The State then questioned Hogan to establish the factual basis for the habitual
offender enhancement. Nothing in the record shows that Hogan was advised of his right to a
jury trial during the habitual offender proceedings, and a personal waiver does not appear in
the record.
Nevertheless, Hogan has not shown that he was prejudiced. Trial counsel testified
that he advised Hogan of his right to a jury trial on the habitual offender enhancement. He
also stated that he had reviewed Hogan’s criminal record and felt that he was not “in a
position to contest with any effectiveness the habitual offender stage.” PCR Tr. at 97.
16 Therefore, he felt that any offer by the State, “however small,” would benefit Hogan. Id.
Hogan presented no evidence that he lacks the felony convictions necessary to establish his
habitual offender status, nor has he presented any evidence that he would have chosen to
proceed with a jury trial had the court explicitly informed him of that right. Therefore, we
conclude that Hogan has not established ineffective assistance of counsel with regard to
either trial or appellate counsel.
III. Jury Instruction
Finally, Hogan argues that the jury should have been instructed on criminal deviate
conduct as both a class A and class B felony. The distinguishing element between the two
offenses is serious bodily injury to the victim. Thus, the class B felony is inherently included
in the class A felony. See Wright v. State, 658 N.E.2d 563, 566 (Ind. 1995) (if the lesser
offense may be established by proof of the same material elements or less than all the
material elements of the greater offense, it is inherently included). Hogan therefore would
have been entitled to an instruction on the class B felony if there was a serious evidentiary
dispute concerning the serious bodily injury. See id. at 567 (“If there is a serious evidentiary
dispute about the element or elements distinguishing the greater from the lesser offense and
if, in view of this dispute, a jury could conclude that the lesser offense was committed but not
the greater, then it is reversible error for a trial court not to give an instruction, when
requested, on the inherently or factually included offense.”). Hogan argues that there was a
serious evidentiary dispute because the jury could have believed Kling’s testimony that she
17 was forced to perform oral sex and believed his testimony that she injured herself because
she was high and behaving erratically.
We lack a complete record with which to review this claim. See Webb v. State, No.
71S05-1106-CR-329, 2012 WL 982772 at *3 (Ind. Mar. 23, 2012) (court is to look at all
evidence presented to determine whether a serious evidentiary dispute exists). However,
even assuming that Hogan would have been entitled to the instruction, it is well established
that counsel may opt to pursue an “all or nothing” strategy. See, e.g., Autrey v. State, 700
N.E.2d 1140, 1141 (Ind. 1998). This strategy does not constitute ineffective assistance of
counsel unless it is “so deficient or unreasonable as to fall outside of the objective standard
of reasonableness.” Id. Here, trial counsel testified that his primary strategy was to attack
the victim’s credibility, and he felt that offering an instruction on the lesser-included offense
would lend some credence to her testimony. He also testified that he was concerned that the
jury would return a “compromise” verdict if given the option to convict Hogan of the class B
felony. PCR Tr. at 99. Hogan has not shown that this was an unreasonable strategy. Thus,
he has not shown that trial counsel was ineffective by not offering a lesser-included
instruction; nor has he shown that appellate counsel was ineffective by not raising the issue
as fundamental error on appeal.
IV. Additional Claims
Hogan asserts that he raised additional claims that the post-conviction court failed to
address. For the reasons discussed in footnote 2, supra, Hogan has waived appellate review
of any additional claims.
18 Conclusion
Hogan is correct that his statement could not be used unless it was taken voluntarily.
However, he has not presented any evidence that his statement was involuntary; therefore, he
has not established ineffective assistance of trial or appellate counsel in regard to this issue.
Hogan is also correct that an advisement of his right to a jury trial on the habitual offender
and his personal waiver should have been made on the record. However, he has failed to
show that he was prejudiced by this and therefore has failed to establish ineffective assistance
of trial or appellate counsel. Hogan has failed to show that trial counsel’s decision not to
tender an instruction on a lesser-included offense was an unacceptable strategy and has
likewise failed to show that appellate counsel should have raised the issue as fundamental
error. Any additional claims that Hogan may have made are waived because, despite our
order to include his post-conviction petition in his appendix, he has failed to do so, and we
are unable to determine what those additional claims might be. Therefore, we affirm the
judgment of the post-conviction court.
Affirmed.
MAY, J., and BROWN, J., concur.