State v. Hollin, 69A05-1101-PC-113

• Decision Date: 24 August 2011
• Docket Number: No. 69A05-1101-PC-113,69A05-1101-PC-113
• Parties: STATE OF INDIANA, Appellant, v. STEVEN HOLLIN, Appellee.
• Court: Indiana Appellate Court

STATE OF INDIANA, Appellant,

v.STEVEN HOLLIN, Appellee.

No. 69A05-1101-PC-113

COURT OF APPEALS OF INDIANA

August 24, 2011

Pursuant to Ind.Appellate Rule 65(D), this

Memorandum Decision shall not be

regarded as precedent or cited before any

court except for the purpose of establishing

the defense of res judicata, collateral

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT:

GREGORY F. ZOELLER

Attorney General of Indiana

CYNTHIA L. PLOUGHE

Deputy Attorney General

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE:

STEPHEN T. OWENS

State Public Defender

J. MICHAEL SAUER

Deputy Public Defender

Indianapolis, Indiana

APPEAL FROM THE RIPLEY CIRCUIT COURT

The Honorable Carl H. Taul, Judge

Cause No. 69C01-0802-PC-001

MEMORANDUM DECISION - NOT FOR PUBLICATION

MATHIAS, Judge The State of Indiana appeals from the Ripley Circuit Court's grant of Steven Ray Hollin's petition for post-conviction review. On appeal, the State claims that the post-conviction court erred in concluding that Hollin was deprived of the effective assistance of trial counsel and that the trial court erred in concluding that the prosecutor in Hollin's trial engaged in misconduct.

We reverse and remand.

Facts and Procedural History

In Hollin's direct appeal, our supreme court set forth the facts underlying Hollin's convictions as follows:

Eighteen-year-old Steven R. Hollin was released from jail on November 1, 2005. Less than a week later, he and Nathan Vogel ("Vogel") devised a plan to burglarize homes in a rural portion of Ripley County, Indiana. They planned to knock upon doors to locate unoccupied homes, from which they would steal money. On the morning of November 8, 2005, the two men ventured out by foot along a road in Ripley County. The first residence they approached was occupied. A woman answered the door, and to avoid suspicion Hollin and Vogel asked for directions to Greensburg, Indiana. They then left and continued their search for an unoccupied house. The next home they reached appeared to be empty. To be certain, Hollin and Vogel knocked upon both the front and back doors before entering the garage and proceeding into the kitchen. While Hollin remained in the kitchen, Vogel entered a bedroom. Vogel took a camera bag containing approximately six hundred dollars. The two then left the home, walking back toward town. At this point, the woman who had provided directions to Greensburg noticed them and called police to report this suspicious activity.

Batesville Police Department Lieutenant Jeff Thielking responded to the call and recognized Hollin. He became suspicious about the possibility of criminal activity because, although it was approximately sixty-six degrees outside, Vogel wore a heavy winter coat and appeared to be hiding something inside of it. Vogel asserted that their car had broken down along the road, but Lieutenant Thielking had not seen any disabled vehicles in the vicinity. Lieutenant Thielking also knew of several recent burglaries in thearea. Noting the name of Al Wuestefeld on the camera bag Vogel was carrying, Lieutenant Thielking arrested both men. A telephone call to the Wuestefeld residence confirmed that it had been burgled. Hollin and Vogel subsequently confessed.¹

Hollin v. State, 877 N.E.2d 462, 463-64 (Ind. 2007).

The State initially charged Hollin with Class B felony burglary of a dwelling and Class D felony theft and also alleged that Hollin was an habitual offender. Id. at 464. The State later amended the charges to a single count of conspiracy to commit Class B felony burglary of a dwelling. Id. The State charged Hollin's companion, Vogel, with Class B felony burglary and Class D felony theft. Vogel entered into a plea agreement with the State whereby he would plead guilty to Class D felony theft and the burglary charge would be dismissed. On February 21, 2006, Vogel was sentenced pursuant to his plea agreement to 545 days, with all time not already served suspended to probation. If Vogel successfully completed his probation, his felony conviction was to be reduced to a Class A misdemeanor conviction.

Shortly thereafter, on May 16, 2006, Vogel was charged in neighboring Decatur County with Class C felony battery with a deadly weapon. As a result, the State filed a petition to revoke Vogel's probation in Ripley County. The State also filed a petition to revoke Vogel's probation in Decatur County, where Vogel had been convicted of Theft pursuant to a plea agreement with terms similar to those in the Ripley County Case.

In July 2006, after the State amended the charge against Hollin to conspiracy to commit burglary, the Ripley County deputy prosecutor, Ryan King ("King") met with Vogel in jail. Vogel had originally claimed that Hollin was unaware of Vogel's theft until after they had left the burglarized home. In jail, however, Vogel told King that Hollin had agreed with him to look for houses to burglarize.

At Hollin's jury trial, his trial counsel, John Kellerman II ("Kellerman"), stated in his opening statement that if Vogel testified that "this was some kind of plan, this will be the first time he's come up with that story," suggesting that Kellerman did not know of Vogel's statement to King that Hollin had agreed with Vogel to look for houses to burglarize. Tr. p. 120. Vogel proceeded to testify that he and Hollin had agreed the night before the burglary to find a home to burglarize. Vogel acknowledged that he had pleaded guilty as a result of the break-in, but Kellerman did not inquire on cross-examination as to the specifics of Vogel's plea agreement. Vogel also acknowledged that he had been convicted of theft in Decatur County after he and Hollin had been arrested in the present case. Kellerman did not inquire into Vogel's pending Class C felony battery charge or the pending petitions to revoke Vogel's probation in both Ripley and Decatur counties.

The statement Hollin gave to the police was played to the jury; in this statement, Hollin told the police that he and Vogel approached a house to use the telephone and knocked on the back door. When no one responded, the two went through an unlocked side door into the kitchen, where Hollin waited for approximately two minutes while Vogel went elsewhere in the house. When Vogel returned to the kitchen, he was carryinga small backpack and told Hollin that they should leave. Hollin's trial testimony was mostly consistent with this account: he claimed that he thought Vogel knew the residents of the home, and that Vogel did not respond when he asked Vogel what was going on. He claimed that he only realized the full extent of what had happened when Vogel showed him the items he had taken from the house. Hollin specifically denied having any plan to break into the house with Vogel.

Before cross-examining Hollin, deputy prosecutor King argued to the trial court that Hollin's three prior convictions for auto theft were admissible to impeach his credibility under Evidence Rule 609, and were admissible to show Hollin's intent under the intent exception to Evidence Rule 404(b). Kellerman agreed and made no objection when King introduced evidence of Hollin's prior convictions. On redirect, however, Kellerman elicited from Hollin that he was only sixteen and seventeen years old at the time of his convictions, that he admitted his guilt in those cases, and that he fled to avoid arrest. Kellerman's theory was that Hollin knew when he was committing a crime, but had not fled when approached by the police in the present case because he had not committed a crime.

On re-cross, King elicited from Hollin that, despite being a teenager, Hollin was waived into adult court because of his juvenile record. King also emphasized that Hollin had been released from jail only seven days before being arrested in the present case. In its closing argument, King argued that Hollin's prior auto theft convictions and the fact that he had just been released from jail were evidence of Hollin's intent. King also claimed that Vogel had no reason to lie because he had pleaded guilty.

The jury found Hollin guilty of conspiracy to commit burglary and found him to be an habitual offender. At the sentencing hearing, the trial court found Hollin's prior criminal history to be an aggravating factor and found his young age to be a mitigating factor. The court then sentenced him to the maximum term of twenty years for the conspiracy conviction, enhanced by twenty years for the habitual offender adjudication, for an aggregate sentence of forty years.

On direct appeal, Hollin argued that it was fundamental error for the trial court to admit evidence of his criminal history and that the trial court erred in sentencing him. A panel of this court rejected these arguments in an unpublished memorandum decision.² Our supreme court granted transfer and summarily affirmed this court as to the evidentiary issue, but concluded that Hollin's forty-year sentence was inappropriate. Hollin, 877 N.E.2d at 464-65. The court revised Hollin's sentence for burglary to the advisory term of ten years, plus an additional ten years for the habitual offender enhancement. Id. at 465-66. Thus, Hollin's sentence was reduced from a total of forty years to a total of twenty years.

On February 25, 2008, Hollin filed a pro se petition for post-conviction relief. Hollin was appointed counsel, and counsel filed an amended petition on August 16, 2010. The amended petition alleged that Hollin had received ineffective assistance of trial counsel, that Hollin had been denied due process when the State failed to disclose to the defense the existence of Vogel's pending criminal charge and petitions to revokeprobation, and that the prosecutor engaged in misconduct when it argued to the jury that Vogel had no motive to lie because "his case was over," despite knowing about the pending charges and petitions to revoke probation. The post-conviction court held a hearing on Hollin's petition on December 13, 2010, at which King and Kellerman testified.

King...