Hale v. State

• Citation: 171 N.E.3d 141
• Decision Date: 09 June 2021
• Docket Number: Court of Appeals Case No. 20A-PC-1887
• Court: Indiana Appellate Court
• Parties: Thomas L. HALE, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.

171 N.E.3d 141

Thomas L. HALE, Appellant-Petitioner,

v.STATE of Indiana, Appellee-Respondent.

Court of Appeals Case No. 20A-PC-1887

Court of Appeals of Indiana.

FILED June 9, 2021

Attorneys for Appellant: Amy E. Karozos, Public Defender of Indiana, John Pinnow, Deputy Public Defender, Indianapolis, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Tyler Banks, Deputy Attorney General, Indianapolis, Indiana

Tavitas, Judge.

Case Summary

[1] After Thomas Hale was convicted of manufacturing methamphetamine within one thousand feet of a youth program center, he successfully appealed. On remand, after a second jury trial, Hale was again convicted. On his second direct appeal, Hale argued that his forty-year aggregate sentence was inappropriate in light of the nature of his offense and his character, but this Court declined to revise his sentence. After the Indiana Supreme Court denied transfer, Hale filed a petition for post-conviction relief ("PCR") in the trial court, arguing that Hale had received ineffective assistance from both his trial and appellate counsel. Hale claims that he had a meritorious argument regarding the constitutionality of Indiana Code Section 35-48-4-1.1 and Indiana Code Section 35-31.5-2-357 ("sentencing enhancement provision") in effect at the time of Hale's second trial. The sentencing enhancement provision more than doubled the length of the maximum sentence that could have otherwise been imposed on Hale, and neither of Hale's attorneys raised a constitutional challenge. The post-conviction court ("PC court") denied Hale's petition for PCR. Hale now appeals. We conclude that the PC court did not err in concluding that Hale suffered no prejudice stemming from the foregone challenge. Accordingly, we affirm.

Issues

[2] Hale raises two issues which we restate as:

I. Whether Hale received ineffective assistance of trial counsel.

II. Whether Hale received ineffective assistance of appellate counsel.

Facts

[3] On May 19, 2014, the Huntington Police Department received a tip that led them to a residence on East Franklin Street. Approximately ten people were at the residence, including Hale. Specifically, Hale was located on the second floor of the residence, apparently attempting to dispose of evidence of a methamphetamine manufacturing operation. Hale was not the primary orchestrator of the operation, but he participated in various ways, including the purchase of pseudoephedrine, a critical ingredient for the manufacture of methamphetamine.

[4] The State charged Hale with manufacturing methamphetamine within one thousand feet of a "youth program center," then a Class A felony. App. Vol. III pp. 22-3. The State alleged that Hale's offense occurred "[s]ometime during the time period of January 1, 2014 through May 20, 2014." Appellant's App. Vol. II p. 22. In 2014, manufacturing methamphetamine would ordinarily have been a Class B felony with a maximum sentence of twenty years. But the governing statute contained an enhancement provision: if the offense occurred within one thousand feet of, among other things, a youth program center, the offense became a Class A felony. The statute then in effect, under which Hale was charged, was Indiana Code Section 35-48-4-1.1 (2013), which read:

A person who ... knowingly or intentionally ... manufactures ... methamphetamine, pure or adulterated ... [commits] dealing in methamphetamine.... The offense is a Class A felony if ... the person manufactured, delivered, or financed the delivery of the drug ... in, on, or within one thousand (1,000) feet of ... a youth program center.

"Youth program center" was defined at the time by Indiana Code Section 35-31.5-2-357 as: "a building or structure that on a regular basis provides recreational, vocational, social or other programs or services for persons less than eighteen (18) years of age...."

[5] During a jury trial in November 2014, Attorney Stanley Campbell ("Attorney Campbell") represented Hale. Witness testimony established that the Franklin Street residence was nine hundred and forty feet from the property line of a Boys and Girls Club and approximately nine hundred and fifty feet from the property line of the Trinity United Methodist preschool. A jury found Hale guilty as charged, and the trial court sentenced Hale to forty years in prison. Attorney Jeremy Nix ("Attorney Nix") represented Hale on appeal, and the Indiana Supreme Court overturned Hale's conviction. Hale v. State , 54 N.E.3d 355 (Ind. 2016).¹

[6] The State tried Hale again in March 2017. This time, Attorney Campbell stipulated that the Franklin Street residence was within one thousand feet of a "youth program center." P.C. Tr. Vol. II pp. 9-10. Once again, the jury found Hale guilty as charged, and the trial court sentenced him to forty years in prison.

[7] Hale, again represented by Attorney Nix, argued a single issue in a second direct appeal: that Hale's sentence was inappropriate in light of the nature of the offense and his character pursuant to Indiana Appellate Rule 7(B). Given Hale's "fifteen felony convictions, four misdemeanor convictions, and nine petitions to revoke his probation[,]" as well as his consistent substance abuse and failure to take advantage of treatment opportunities, this Court affirmed Hale's sentence in an unpublished memorandum opinion.

Hale v. State , No. 35A04-1704-CR-889, slip op. at 1, 2017 WL 3908886 (Ind. Ct. App. Sept. 7, 2017), trans. denied.

[8] On April 12, 2018, Hale, pro se, filed a verified petition for PCR. The PC court appointed the state public defender to represent Hale, and the state public defender filed amended petitions which alleged that Hale received: (1) ineffective assistance of trial counsel ("IATC") during his second trial; and (2) ineffective assistance of appellate counsel ("IAAC") during his second direct appeal. Such ineffective assistance, Hale contended, violated his due process rights under the Sixth and Fourteenth Amendments to the United States Constitution as defined in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See U.S. Const. amend. VI, XIV.

[9] Specifically, Hale argued that his attorneys failed to make a facial challenge to the sentencing enhancement provision on the grounds that it was constitutionally void-for-vagueness. Hale cited Johnson v. United States , 576 U.S. 591, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), for the proposition that facial challenges can be made even to criminal statutes that include some constitutional applications within their ambit. Hale further cited Whatley v. Zatecky , 833 F.3d 762 (7th Cir. 2016). The Whatley court found that the phrase, "on a regular basis[,]" in the definition of "youth program center" was unconstitutionally vague—albeit in the context of an as-applied vagueness challenge—and ruled that the Indiana Supreme Court unreasonably applied federal law when it found otherwise.

[10] At a hearing on Hale's petition for PCR on June 16, 2020, Attorney Campbell testified as follows:

[ ] I guess the way I thought about Whatley at the time, was that it's—there was language in Whatley that could have provided an argument for [ ] dismissal of—of the A Felony[.] [ ] [O]n the other hand, [ ] Whatley I thought [ ] in its analysis and looking at Whatley ’s situation specifically as to him, [ ] I was doubtful if that would've been successful in arguing it....

PC Tr. Vol. II p. 13 (cleaned up). The following colloquies ensued:

Q. Did you look at the language in Johnson , I'm gonna [sic] quote here, "our holdings and [sic] squarely contradict theory that a vague provision is constitutional merely because there is some conduct that clearly falls within the provisions of grasp", had you looked at that particular language?

A. Yeah, [ ] I remember that language from the case.

Q. Okay. [ ] What applicability did that language have, in your opinion, to Hale's case?

A. [ ] [I]n the way I looked at Johnson and Whatley , [ ] as I said there were—there was language, [ ] in those decisions that could've been used to argue, [ ] for [ ] the vagueness of the statute has [sic] applied to [ ] Hale, but there in was the problem as it applied to Hale. [ ] [M]y reading of Johnson was that it was a case that was [ ] a lot of it based upon the structure of The Armed [Career] Criminal Act [ ] as Congress had passed it and the analysis had a lot to do with that particular statute.

* * * * *

Q. What did you have to lose by not filing a Motion to Dismiss the enhancement prior to the second Trial?

A. There would not have been anything to lose. [ ] [I]n other words if you're asking [ ] would there have been any downside or anything, a loss to [ ] Hale by filing a Motion, the[ ] answer would be, no, there wouldn't have been.

Id. at 14, 20 (cleaned up).

[11] Attorney Nix also testified at the hearing:

Q. Back in 2017/2018, what was your analysis of whether or not Whatley applied to Hale's case?

A. I thought it was pretty directly on point and held that an entity like the Boy's and Girl's Club or a YMCA, would fit the definition of a Youth Program Center.

* * * * *

Q. [ ] Did you consider raising a challenge to the enhancement based on the statute being vague on its face?

A. I did not.

* * * * *

Q. Did Whately [sic] prohibit raising an unconstitutional on its face challenge?

A. I don't believe so.

Q. When you reviewed the case, had Trial Counsel filed a Motion to Dismiss the Youth Program Center Enhancement?

A. No, I believe they had stipulated to it.

Q. Okay. Did that fact come into what you raised on the Appeal?

A. Yes.

Q. How did the fact (INDISCERNIBLE)?

A. If they stipulated to that fact, uh, I would've had to of [sic] alleged that it was fundamental error on the Appeal, which is a much more difficult standard [ ] or burden to overcome.

PC Tr. Vol. II pp. 24-28.

[12] On September 16, 2020, the PC court entered its order denying Hale's petition for PCR and found, in part, as follows:

30. ... Based on Cook , Kashem , and Bramer ,^[2] this Court finds that

...