Hogan v. State

• Decision Date: 19 April 2012
• Docket Number: No. 20A03–1103–PC–158.,20A03–1103–PC–158.
• Citation: 966 N.E.2d 738
• Parties: Anthony HOGAN, Appellant–Petitioner, v. STATE of Indiana, Appellee–Respondent.
• Court: Indiana Appellate Court

966 N.E.2d 738

Anthony HOGAN, Appellant–Petitioner,

v.STATE of Indiana, Appellee–Respondent.

No. 20A03–1103–PC–158.

Court of Appeals of Indiana.

April 19, 2012.

Rehearing Denied June 13, 2012.

Anthony Hogan, Michigan City, IN, Appellant Pro Se.

Gregory F. Zoeller, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

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, 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.

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 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 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 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 "violation of the professional rules of conduct or an evidentiary rule. There...