Hanks v. State

• Decision Date: 15 March 2017
• Docket Number: Court of Appeals Case No. 10A01-1604-PC-690
• Parties: Gary HANKS, Appellant–Petitioner, v. STATE of Indiana, Appellee–Respondent.
• Court: Indiana Appellate Court

71 N.E.3d 1178

Gary HANKS, Appellant–Petitioner,

v.STATE of Indiana, Appellee–Respondent.

Court of Appeals Case No. 10A01-1604-PC-690

Court of Appeals of Indiana.

March 15, 2017

Attorney for Appellant : Stephen T. Owens, Public Defender of Indiana, Jeffrey R. Wright, Deputy Public Defender, Indianapolis, Indiana

Attorneys for Appellee : Curtis T. Hill, Jr., Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, Indiana

Mathias, Judge.

[1] Gary Hanks ("Hanks") pleaded guilty in Clark Circuit Court to one count of Class A felony child molesting. Hanks collaterally attacks his plea as the product of the ineffective assistance of his trial counsel and as not knowingly, intelligently, and voluntarily made. Hanks's petition for post-conviction relief on those grounds was denied by the court below.

[2] When a defendant is deciding whether to expose himself to a sentencing judge's absolute discretion, is local defense counsel constitutionally required to advise his client of the local judge's sentencing practices in cases like his client's? Because Hanks has not persuaded us that, as applied to the facts of his case, counsel was required to do so, we affirm as to the ineffective assistance claim. We remand for judgment on the voluntariness claim because it was raised but not resolved below.

Facts and Procedural History

[3] On July 20, 2000, Hanks was charged with one count of Class A felony child molesting and four counts of Class C felony child molesting. The State's case for guilt was strong: Hanks's grade-school-aged victim, then living with Hanks, had come forward with credible accusations and Hanks had admitted the truth of most or all of them during a noncustodial taped interview in Hanks's home with a detective of the Jeffersonville Police Department.

[4] On February 5, 2001, after withdrawal of Hanks's private counsel, the Clark Circuit Court appointed the Clark County public defender to represent Hanks. On February 13, 2001, attorney Christopher Sturgeon ("Sturgeon") of the public defender's office entered his appearance for Hanks. Sturgeon had had a long career in Clark County criminal litigation, serving as a deputy prosecutor from 1989 to 1994 and as a public defender since 1994. Hanks was then being held in the Clark County jail.

[5] On March 7, 2001, from his office about five miles away, Sturgeon sent Hanks a letter in jail about a plea offer Sturgeon had received from the State. Under the offer ("the thirty-year offer"), Hanks would plead guilty to the Class A felony charge. In return, the State would dismiss the four Class C felony charges and recommend a thirty-year sentence, then the presumptive sentence for a Class A felony. Sturgeon "assume[d]" that he and Hanks had discussed the thirty-year offer before Sturgeon's March 7, 2001, letter, Tr. p. 31, but, in any event, Hanks held out hope for a reduced sentence between the twenty-year statutory minimum and the thirty-year presumptive sentence.

[6] In his letter, Sturgeon emphasized that the prosecutor "will not reduce her previous [thirty-year] plea offer...." Ex. Vol., Pet.'s Ex. G (original emphasis). Hanks "must either accept her plea offer or go to trial." Id. Sturgeon advised Hanks of the ninety-year maximum sentence Hanks could face if he went to trial on all five felony charges and lost. Sturgeon noted that Hanks had previously told him that Hanks "did not have any intention of going to trial." Id. Hanks now needed to make a final decision "whether [he] want[ed] to accept the plea agreement or go to trial." Id. With trial set for March 20, 2001, Sturgeon needed to know Hank's choice "immediately." Id. Beyond reciting the terms of the thirty-year offer and the statutory maximum sentence Hanks could face if convicted of all charges, Sturgeon provided no substantive advice as to which course to pursue and did not suggest any alternative courses.

[7] Hanks did not accept the thirty-year offer. The record does not disclose whether Hanks expressly rejected it, or whether and when the offer expired or was withdrawn. On Hanks's motion, trial was continued to June 26, 2001.

[8] On May 21, 2001, the State made a new offer ("the open offer"): Hanks would plead guilty "open," that is, without benefit of a sentencing recommendation from the State, to the Class A felony charge. If the agreement were accepted by the trial court, the trial court would retain absolute discretion to fix any sentence between the twenty-year statutory minimum and the fifty-year statutory maximum. In return, as under the thirty-year offer, the State would dismiss the four Class C felony charges.

[9] The course of negotiations leading to this offer, and Sturgeon's advice, if any, to Hanks as he considered it, do not appear clearly from the record. Hanks testified that, beyond the thirty-year offer, the "only other avenue that [Sturgeon] presented to [him] was the [open offer] or going to trial." Tr. p. 52. Hanks testified that he and Sturgeon did not discuss what the sentencing judge "might do" in sentencing Hanks on an open plea, Tr. p. 55, and that Hanks received no guidance on the likelihood of achieving his stated goal of a sentence under thirty years. Tr. p. 52. Hanks accepted the open offer, still hoping for a sentence less than thirty years. On June 11, 2001, the plea agreement was filed and accepted by the trial court.

[10] At that time, Judge Daniel F. Donahue ("Judge Donahue") was judge of the Clark Circuit Court. Judge Donahue served in that capacity from 1987 to 2008. During that time, Judge Donahue, according to his own account, "took a hard stance in sentencing defendants in sexual offender sentencing proceedings." Ex. Vol., Pet.'s Ex. E. While Judge Donahue based his sentencing decisions on the evidence and argument presented by the parties, "it was not uncommon for maximum sentences to be imposed" by him in sex offender cases. Id. This "history of imposing maximum sentences in se[x] offender cases," Judge Donahue thought, "would likely" have been known to local criminal defendants and to the local defense bar. Id. Moreover, Judge Donahue "did not particularly care for ‘blind [i.e., open] pleas,’ but preferred to have the State and the defense decide an appropriate sentence ... and present that determination to the [c]ourt for its acceptance or rejection." Id. Sturgeon, however, despite his long career in Clark County criminal litigation, was aware neither of Judge Donahue's sentencing practices in sex offender cases, Tr. p. 21, nor of Judge Donahue's disfavor of open pleas. Tr. p. 22.

[11] At his July 11, 2001, sentencing before Judge Donahue, Hanks pleaded for mercy. Sturgeon pointed out Hanks's contrition and immediate acceptance of responsibility but brought forward no evidence in mitigation outside what Hanks had just told the court in allocution. The State brought forward the victim's mother and tendered a case on appropriate sentencing in cases like Hanks's. The prosecutor hoped "God shows [Hanks] mercy. This [c]ourt should show him none." Ex. Vol., Pet.'s Ex. C., p. 26. Judge Donahue exercised his absolute discretion to the fullest and sentenced Hanks to the statutory maximum fifty-year term in the Department of Correction. Hanks did not appeal his sentence.

[12] Sometime later, Hanks heard from a fellow inmate at the Department of Correction that the following colloquy with Judge Donahue had taken place at the fellow inmate's September 30, 2002, sentencing hearing on an open guilty plea to a sex offense:

The Court: Were you aware of the fact that in two prior cases of a similar nature in which [the fellow inmate's counsel] was defense attorney I maxed out [i.e., gave the maximum sentence to] the two individuals and they're both serving fifty years in prison. Were you aware of that?

[Fellow Inmate]: No, sir.....

The Court: [The fellow inmate's counsel] represented them and they were blind pleas and I listened to it all. I read the Pre–Sentence Investigation Report. I heard what every, each side had to say. And in those cases I maxed them out.... So I'm going to do the same thing here. I don't know, as I sit here I cannot tell you immediately what sentence I'm going to impose, but you need to know for the record that in these kinds of cases I—[i]t ought to be known to criminal [d]efendants that I take a pretty hard stand..... I want you to know that that's the history that I have. And to be fair to you, you need to know it up front before we go forward and before you enter pleas.... I don't particularly care for blind pleas. I'd much rather the State and the defense, and defense counsel decide what is appropriate based upon history.... I'll tell you what we'll do. We'll go off record. And I'll step down and we'll give [the fellow inmate] and [his attorney] five or ten minutes to discuss this.... [Y]ou need to know up front, and you, quite frankly, should have been told.

Confidential Ex. Vol., Pet.'s Ex. D1, pp. 20–21.

[13] Hanks petitioned for post-conviction relief on June 16, 2011. The post-conviction court heard evidence and argument on Hanks's amended petition on January 22, 2016. Particularly, the court heard the testimony of Hanks, Sturgeon, and Jeffrey Stonebraker ("Stonebraker"), chief public defender for Clark County in 2001 and at the time of the hearing in this case. The post-conviction court denied the petition on March 8, 2016.

[14] This appeal timely followed. Hanks claims that Sturgeon provided constitutionally ineffective assistance in failing to advise Hanks of Judge Donahue's sentencing practices with regard to open pleas in sex offender cases, but for which failure Hanks would not have rejected the thirty-year offer. Hanks claims further that, from his ignorance of Judge Donahue's sentencing practices, his guilty plea was not knowingly, intelligently, and voluntarily made. To remedy these alleged deficiencies, Hanks seeks reduction of his fifty-year sentence to thirty years.

Standard of Review

[15] A post-conviction petitioner...