Hoffman v. State, 18A02–1307–PC–587.

Docket NºNo. 18A02–1307–PC–587.
Citation999 N.E.2d 117
Case DateDecember 09, 2013
CourtCourt of Appeals of Indiana

999 N.E.2d 117 (Table)

Edward R. HOFFMAN, Appellant–Petitioner
v.
STATE of Indiana, Appellee–Respondent.

No. 18A02–1307–PC–587.

Court of Appeals of Indiana.

Dec. 9, 2013.


John Pinnow, Deputy Public Defender, Indianapolis, IN, Stephen T. Owens, Public Defender of Indiana, Attorneys for Appellant.

Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Gregory F. Zoeller, Attorney General of Indiana, Attorneys for Appellee.

MEMORANDUM DECISION—NOT FOR PUBLICATION

KIRSCH, Judge.

Edward R. Hoffman (“Hoffman”) appeals the denial of his petition for postconviction relief, contending that the post-conviction court erred when it found that he was not denied the effective assistance of appellate counsel on his direct appeal. We restate his contention as the three following issues:

I. Whether the post-conviction court erred when it found that Hoffman failed to prove his appellate counsel was ineffective for not ensuring the DVD of his statement to police was included in the record on direct appeal;
II. Whether the post-conviction court erred when it found that Hoffman failed to prove ineffective assistance of appellate counsel for not arguing that the trial court erroneously relied on Hoffman's lack of remorse when it sentenced him; and
III. Whether the post-conviction court erred when it found that Hoffman failed to prove his appellate counsel was ineffective for not making a sufficient argument that his sentence was inappropriate in light of the nature of the offense and the character of the offender.

We affirm.

FACTS AND PROCEDURAL HISTORY

The facts supporting Hoffman's convictions as set forth by this court on his direct appeal are as follows:

During February 2005, Hoffman returned from overseas to Gaston, Indiana, to be with his ailing mother. His mother was a close friend of Theresa Critzman's, stepmother of then thirteen-year-old T .C. When Hoffman's mother died, he continued to live in her home, located about two blocks from T.C.'s home. He quickly developed a close relationship with the Critzman family and was with them almost daily. Hoffman was in the military and, after moving back, also became a volunteer fireman for the town. T.C.'s father and stepmother thought Hoffman was a good role model for their son, and T.C. looked up to Hoffman and trusted him. Hoffman tutored T.C. in math at the end of the 2005 school year. T.C.'s parents frequently allowed (and even encouraged) T.C. to spend time alone with Hoffman, as T.C. had been having disciplinary issues at school and was eventually expelled.
On one occasion in late spring or early summer of that year, soon after T.C. turned fourteen, Hoffman took T.C. and other children to the movies. T.C. then spent the night at Hoffman's home. After Hoffman's niece went to bed, he and T.C. retired to Hoffman's room and closed the door. They watched a movie on Hoffman's laptop computer. Later, Hoffman observed T.C. looking at pornography on the computer, so he (Hoffman) entered a search word that caused more pornographic images to appear on the screen. He then began to wrestle with T.C, which ultimately resulted in him rubbing his pelvis against T.C. and telling the child he was “horny.” Tr. at 80. He then asked T.C. to remove his pants. When T.C. refused, Hoffman threatened to tell T.C.'s parents that he had been caught looking at pornography.
T.C. eventually complied with Hoffman's request. After rubbing baby oil on his and T.C.'s genitals, Hoffman attempted to insert his penis into T.C.'s anus. Unable to achieve penetration, Hoffman rubbed his naked pelvis against T.C. until Hoffman ejaculated on T.C .'s stomach.
Later that summer, Hoffman moved out of his deceased mother's home and paid T.C. to help him pack and unpack. On one occasion while helping, T.C. spent the night at Hoffman's new home. While T.C. was using Hoffman's computer, Hoffman inserted a pornographic DVD into the computer for T.C. to watch. The DVD depicted a policeman engaging in sexual activity with another man. Hoffman told T.C, “you should learn from this.” Id. at 87. Hoffman proceeded to disrobe, “g[e]t on top of” T.C, and rub his pelvis against T.C. Id. He then told T.C. that they should “take it to the shower.” Id. While in the shower with T.C, Hoffman rubbed body wash on his and T.C.'s genital areas and again attempted anal intercourse. Unable to penetrate T.C, Hoffman performed oral sex on T.C. and inserted his finger into T.C.'s anus. After this episode, T.C. asked Hoffman to stop doing this, and Hoffman agreed.
On a later date, however, T.C. once again spent the day and night at Hoffman's home. During his visit, T.C. observed Hoffman looking at homosexual pornography involving a military theme. Thereafter, he purchased two pornographic movies for T.C. from a website. Later that night, Hoffman began rubbing his pelvis against T.C. After lubricating with baby oil, Hoffman then inserted his penis into T.C.'s anus. Hoffman, who was not wearing a condom, ejaculated into the fourteen-year-old child's anus.
At the end of summer, T.C. began attending the Youth Opportunity Center (the YOC), a school for expelled youth. Hoffman offered to drive T.C. to the YOC each day, and T.C.'s parents accepted. During the daily trips to school, Hoffman often spoke with T.C. about the offenses. He warned T.C. that if he told his counselor at the YOC what had happened, Hoffman would go to jail for a long period of time.
In mid-September, T.C. ran away from home and was sent to live at the YOC on a full-time basis after he was retrieved by police. Thereafter, Hoffman attempted to visit T.C. at the YOC on one occasion and several times expressed to T.C.'s parents a desire to visit him. When T.C. learned that Hoffman planned to visit him over Thanksgiving with T.C.'s family, T.C. acted out. In December, T.C. finally told his counselor about the sexual encounters with Hoffman.
After T.C. spoke with an officer of the Delaware County Sheriff's Department (the DCSD), the DCSD searched Hoffman's home pursuant to a warrant on December 16, 2005. Police recovered, among other things, several pornographic DVDs, a laptop computer, and a bottle of baby oil. On December 22, the State charged Hoffman with three counts of sexual misconduct with a minor as class B felonies (Counts 1, 2, and 3), attempted sexual misconduct with a minor as a class B felony (Count 4), sexual misconduct with a minor as a class C felony (Count 5), and dissemination of matter harmful to minors as a class D felony (Count 6).
Hoffman's two-day jury trial commenced on September 11, 2006. T .C. testified regarding the three separate episodes of sexual conduct, as set forth above. Further, the trial court admitted into evidence, over Hoffman's objection, three pornographic DVDs that were recovered from Hoffman's bedroom during the search.
....
The jury found Hoffman guilty as charged. At the sentencing hearing on November 1, 2006, the trial court noted, “I was here during the whole trial and observed the demeanor of the Defendant and he had the same, sullen look that he has right now. And I see no remorse whatsoever.” Id. at 251. Further, in its subsequent sentencing order the trial court set forth the following aggravating and mitigating circumstances:
Mitigating Circumstances:
1. The defendant led a law-abiding life for a substantial period of time before commission of the crimes.
2. These are the defendant's first Felony convictions.
Aggravating Circumstances:
1. There was a substantial degree of care and planning on the part of the defendant in the commission of the crimes.
a) The defendant's role was that of a principal.
b) The defendant carefully arranged several overnight occasions, designed to allow him to be alone with the victim for extended periods of time.
2. The Court finds that the facts of the crime are particularly heinous or disturbing due to the repeated and progressive nature of the occurrences over a significant time period.
3. The Court finds that the defendant is in need of correctional or rehabilitative treatment that can best be provided by his commitment to a penal facility.
4. The Court considers the crime to be particularly devastating to the victim, his family members, and/or relatives.
5. The Court finds that the defendant was in a position of trust, having care, temporary custody, or control of the victim of the offense.
6. The Court also considers that the Defendant was a member of the armed forces who was trained to protect, not molest, the citizens of the United States.
Appellant's App. at 212–13. The
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