Hunter v. State, 49A04-9502-PC-33
| Decision Date | 25 October 1995 |
| Docket Number | No. 49A04-9502-PC-33,49A04-9502-PC-33 |
| Citation | 656 N.E.2d 875 |
| Parties | Steven HUNTER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Steve L. Hunter appeals the denial of his petition for post-conviction relief. We affirm.
I. Whether Hunter's sentence was based on materially untrue assumptions.
II. Whether Hunter received effective assistance of counsel at trial and on appeal.
III. Whether Hunter's sentence was manifestly unreasonable.
On January 24, 1984, Steve L. Hunter entered the Indiana National Bank branch located at 62nd Street and Michigan Road in Indianapolis. Hunter, who was not wearing a mask, asked bank teller Phyllis Jones about the possibility of opening a savings account. Jones asked Hunter to have a seat; however, Hunter walked into bank manager Dewey Cain's office, pointed a handgun at Cain and informed him that a robbery was occurring. Hunter then put on a ski mask. Shortly thereafter, Hunter's two accomplices, armed with shotguns, burst into the bank. Hunter told bank secretary Lori Myers not to touch any buttons or alarms or he would "blow [her] head off." (R. 501). Hunter ordered bank manager Dewey Cain to enter the tellers' stations and to remove money from the tellers' drawers. Cain removed approximately $14,000.00 and placed it in a pillowcase provided by Hunter. Cain also placed a dye pack and "bait money" in the pillowcase. When the "bait money" was removed from the teller's drawer, the removal set off an alarm and activated the bank's cameras.
As Hunter and the two other men were leaving the bank, one of the other men demanded that bank customer Robert Cohen give the man Cohen's car keys. Further, Hunter forced Douglas Gordon, the bank's assistant manager, at gunpoint, to give him his car keys and to proceed outside with the three men. Gordon exited the bank ahead of the three men and walked to his car without looking behind him. When Gordon realized that the three men were no longer behind him and were getting into a black van, Gordon ran to the rear of the bank building. The three men got into the van with its engine running and drove off in it. Apparently, the van was in bad shape and could not be driven faster than 45 miles per hour.
Shortly thereafter, seventy-eight year-old Bernard Lee was driving his car on 61st Street when the black van approached him from the rear. The van's driver rammed and bumped Lee's vehicle with the van, and Lee stopped. The three men jumped out of the van and ordered Lee out of his car. One of the men stood at Lee's door with a shotgun. Another man stood at the front of Lee's car with a shotgun, and the third man stood near the van with a handgun. When Lee got out of the car, one of the men hit Lee on the back of the neck with a shotgun. Lee stumbled to the other side of the street and the two men with the shotguns got into Lee's car and yelled at Lee to get back in the car. Lee told the men "to go you know where," and started running down the street. (R. 658). Lee ran into a neighbor's yard and saw the three men get back into the van and drive away. Lee's neighbor saw Lee in the driveway, and Lee and his neighbor walked back to where the car had been taken from Lee and found the car had been moved. Apparently, the fleeing bank robbers had driven the car into a ditch while trying to turn the car around.
Seventy-eight year-old Wilford Clark was driving on Cold Springs Road when he encountered the black van blocking the road. Clark stopped, and three men with guns approached his car. One of the men put a handgun to Clark's head and told Clark to get out of his car or the man would blow him away. Clark got out of the car, and the three men drove away in it.
Hunter was subsequently charged with and convicted by jury of five counts of robbery, all class B felonies, and one count of confinement, also a class B felony. The six convictions were for the following:
1. Robbery of Dewey Cain by taking U.S. currency;
2. Robbery of Douglas Gordon by taking Gordon's car keys;
3. Confinement of Douglas Gordon;
4. Robbery of Robert Cohen by taking Cohen's car keys;
5. Robbery of Bernard Lee by taking an automobile; and
6. Robbery of Wilford Clark by taking an automobile.
Hunter received 20 years on each count, all sentences to run consecutively.
Our supreme court affirmed Hunter's convictions on direct appeal. Hunter v. State (1986), Ind., 492 N.E.2d 1067. The United States District Court granted Hunter's habeas corpus petition; however, the Seventh Circuit United States Court of Appeals reversed, finding that "[g]iven the overwhelming weight of the evidence against Hunter, the failure to give Hunter's requested 'no adverse inference' instruction was harmless beyond a reasonable doubt, thus no significant value [was] at stake." Hunter v. Clark (1991), 7th Cir., 934 F.2d 856, 864-65, cert. denied, (1991) 502 U.S. 945, 112 S.Ct. 388, 116 L.Ed.2d 338.
On January 7, 1993, Hunter, acting pro se, filed a petition for post-conviction relief, and on August 9, 1994, Hunter, by counsel, filed an amended post-conviction relief petition. The amended petition was denied on October 7, 1994, and Hunter now appeals that denial.
A petitioner bears the burden of establishing grounds for post-conviction relief by a preponderance of the evidence. Ind.Post-Conviction Rule 1(5); Weatherford v. State (1993), Ind., 619 N.E.2d 915, 917, reh'g denied. In reviewing the judgment of a post-conviction court, we consider only the evidence and reasonable inferences supporting its judgment. Id. The post-conviction court acts as the sole judge of the evidence and the credibility of witnesses. Id. Accordingly, the petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite to that reached by the trial court to prevail on appeal from a denial of post-conviction relief. Id.
Hunter argues that he was "sentenced on the basis of materially untrue assumptions in violation of the Fifth and Fourteenth Amendments to the United States Constitution and Article One, Sections Twelve and Twenty-Three of the Indiana Constitution." Hunter's Brief, p. 19. Specifically, Hunter contends that the "trial court stated in aggravation that Hunter had been convicted of Armed Robbery and two charges of Visiting a Common Nuisance." Hunter's Brief, p. 19. According to Hunter, "[t]hese facts were not accurate because Hunter was acquitted of the Robbery charge ... and was only convicted of one count of Visiting a Common Nuisance." Hunter's Brief, p. 19-20. In support of his argument, Hunter directs us to: 1) a certified copy of the verdict issued by the jury in CR 81-86C finding that Hunter was not guilty of robbery which Hunter submitted at his post-conviction relief hearing, and 2) Hunter's testimony at the post-conviction relief hearing that he was only charged and convicted one time of visiting a common nuisance. The State responds that the trial court never stated in aggravation that Hunter had been convicted of robbery. The State further points out that Hunter: 1) did not testify which visiting a common nuisance conviction in his presentence report was inaccurate, and 2) provided no documentary evidence regarding the inaccuracy of the presentence report. Thus, according to the State, the post-conviction court was not required to believe Hunter's testimony absent more specific information. We agree with the State.
Our review of the record reveals that the trial court never stated that Hunter had been convicted of robbery. The trial court's written sentencing statement refers to "Deft's criminal history and criminal activity." (R. 130). The trial court's oral sentencing statement referred to Hunter's "prior criminal record." (R. 1236). During the sentencing hearing, the trial court read into the record the legal history contained in Hunter's presentence report. The presentence report entry which Hunter contends supports his argument provides in pertinent part as follows:
2-16-81 MCSD Robbery, Carrying a Hand Gun Without a License (CR81-86C) 1 year, exec. 5-21-82.
As a man was attempting to put gasoline in his vehicle, the defendant pulled a gun on him and demanded his money. After taking $70.00 from the victim, the defendant was observed by the victim running to a parked car and driving away. The police stopped the defendant's car and found the gun and money on him. The victim made a positive identification as to the identity of the defendant.
At a jury trial, the defendant was found guilty of Carrying a Handgun Without a License (Class A misdemeanor). On May 21, 1982 he received a one year executed sentence.
(R. 119).
This entry does not state that Hunter was convicted of robbery. Rather, it appears that Hunter was initially charged with robbery and carrying a hand gun without a license. However, Hunter was convicted of only carrying a handgun without a license, and he received a one year sentence. Further, Hunter's presentence report also provides in pertinent part as follows:
The defendant has two convictions for minor Misdemeanors and in 1981 received a Felony Conviction for Theft, and in 1982 was convicted on a Misdemeanor for Carrying a Handgun Without a License. On an additional Armed Robbery charge he was found not guilty, this charge was part of the same case involving the Carrying a Firearm Without a License.
(R. 125). The trial court did not state in aggravation that Hunter had been convicted of armed robbery.
Our review of Hunter's presentence report reveals that, according to the report, Hunter was...
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USA v. HUNTER
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