State v. Hollin

• Citation: 970 N.E.2d 147
• Decision Date: 12 July 2012
• Docket Number: No. 69S05–1201–PC–6.,69S05–1201–PC–6.
• Parties: STATE of Indiana, Appellant (Respondent below), v. Steven Ray HOLLIN, Appellee (Petitioner below).
• Court: Supreme Court of Indiana

970 N.E.2d 147

STATE of Indiana, Appellant (Respondent below),

v.Steven Ray HOLLIN, Appellee (Petitioner below).

No. 69S05–1201–PC–6.

Supreme Court of Indiana.

July 12, 2012.

Gregory F. Zoeller, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellant.

Stephen T. Owens, State Public Defender, J. Michael Sauer, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellee.

RUCKER, Justice.

Steven Ray Hollin filed a petition for post-conviction relief alleging prosecutorial misconduct and ineffective assistance of trial counsel. The post-conviction court granted relief and the State of Indiana appealed. The Court of Appeals reversed. We granted transfer.

Facts and Procedural History¹

A recitation of the essential facts in this case was set forth in our opinion on direct appeal 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 the area. 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.²

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

On November 10, 2005, the State initially charged both Hollin and Vogel with burglary as a Class B felony and theft as a Class D felony. Hollin was also charged as a habitual offender. On July 11, 2006, the State amended Hollin's theft charge to conspiracy to commit burglary as a Class B felony. A jury trial began August 8, 2006. The jury convicted Hollin of conspiracy to commit burglary and adjudged him a habitual offender. After conducting a sentencing hearing, Judge Carl H. Taul found one aggravating factor—Hollin's criminal history—and one mitigating factor—his young age. The trial judge then sentenced Hollin to the maximum term of twenty years for the conspiracy conviction, enhanced by twenty years for the habitual offender adjudication, for a total term of forty years.

On direct appeal Hollin raised two issues, one of which was whether the trial court properly sentenced him. In an unpublished memorandum decision, the Court of Appeals rejected Hollin's arguments and affirmed the judgment of the trial court. Hollin v. State, No. 69A01–0609–CR–401, 2007 WL 925745 (Ind.Ct.App. Mar. 29, 2007). We granted transfer and affirmed Hollin's convictions, but finding his forty-year sentence inappropriate we revised his sentence to ten years for conspiracy to commit burglary enhanced by an additional ten years as a habitual offender, for a total executed term of twenty years. See Hollin, 877 N.E.2d at 465–66.

Hollin filed a pro se petition for post-conviction relief on February 25, 2008. Amended by counsel on August 16, 2010, the petition alleged prosecutorial misconduct and a number of claims alleging ineffective assistance of trial counsel. Judge Carl H. Taul, the same trial judge that presided over Hollin's jury trial, presided over the post-conviction proceedings. The trial judge granted Hollin's petition, reversed his conviction, and ordered a new trial. The State appealed. In an unpublished memorandum decision, the Court of Appeals reversed the judgment of the post-conviction court. State v. Hollin, No. 69A05–1101–PC–113, 2011 WL 3795020 (Ind.Ct.App. Aug. 24, 2011). Having previously granted transfer we affirm the judgment of the post-conviction court. Additional facts are set forth below.

Standard of Review for Post–Conviction Proceedings

Post-conviction proceedings do not provide criminal defendants with a “super-appeal.” State v. Holmes, 728 N.E.2d 164, 168 (Ind.2000). Rather, they provide a narrow remedy to raise issues that were not known at the time of the original trial or were unavailable on direct appeal. Id. “The petitioner has the burden of establishing his grounds for relief by a preponderance of the evidence.” Ind. Post–Conviction Rule 1(5). When the State appeals a judgment granting post-conviction relief, we review using the standard in Indiana Trial Rule 52(A):

On appeal of claims tried by the court without a jury or with an advisory jury, at law or in equity, the court on appeal shall not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses.

State v. Cooper, 935 N.E.2d 146, 149 (Ind.2010). The clearly erroneous standard of review is a review for sufficiency of the evidence, and we neither reweigh that evidence nor determine the credibility of witnesses. Instead, we consider only the probative evidence and reasonable inferences supporting the trial court's judgment. State v. Dye, 784 N.E.2d 469, 471 (Ind.2003). Further, the post-conviction court in this case entered findings of fact and conclusions of law in accordance with Indiana Post–Conviction Rule 1(6). Although we do not defer to the postconviction court's legal conclusions, “a post conviction court's findings and judgment will be reversed only upon a showing of clear error—that which leaves us with a definite and firm conviction that a mistake has been made.” Ritchie v. State, 875 N.E.2d 706, 714 (Ind.2007) (quoting Ben–Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.2000), cert. denied,534 U.S. 830, 122 S.Ct. 73, 151 L.Ed.2d 38 (2001) (table)).

Standard of Review for Ineffective Assistance of Counsel

To establish a post-conviction claim alleging a violation of the Sixth Amendment right to effective assistance of counsel, a defendant must establish the two components set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the defendant must show that counsel's performance was deficient, that is, falling below an objective standard of reasonableness and denying defendant the right to counsel guaranteed by the Sixth Amendment. Timberlake v. State, 753 N.E.2d 591, 603 (Ind.2001). Second, the defendant must show that the deficient performance prejudiced the defense by establishing a reasonable probability that but for counsel's unprofessional errors the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. We afford counsel considerable discretion in choosing strategy and tactics, and “[i]solated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective.” Id.

Discussion

The evidence before the post-conviction court reveals the following. After being arrested Hollin was transported to the Batesville Police Department by Officer Stanley Holt, who read Hollin his Miranda rights and asked Hollin questions about the alleged burglary. Hollin stated he didn't have any knowledge about a house being broken into and denied any involvement. Vogel and Hollin both gave tape recorded statements. Vogel told Officer Holt that he entered the Wuestefeld house intending to use the telephone, but then went into the master bedroom and emptied a big jar of change into a camera bag he found. PC–Tr. at 43. He did not implicate Hollin in a plan to burglarize the home. Hollin told Officer Holt that Vogel needed to find a telephone and suggested they go to the Wuestefeld residence, but no one answered the door. Noting the door was unlocked, Vogel entered the residence and Hollin followed him inside. When Vogel left the room, Hollin said he waited in the kitchen for approximately two minutes until Vogel returned with a pack. Then they left the residence. PC–Ex. at 233–34. Notably, Hollin neither declared that he entered the residence intending to take property therefrom nor that he knew Vogel intended to do so.

On November 10, 2005, the State initially charged both Hollin and Vogel with burglary as a Class B felony and theft as a Class D felony. Hollin was also charged as a habitual offender. On July 11, 2006, the State amended Hollin's theft charge to conspiracy to commit burglary as a Class B felony. Thereafter Vogel entered an agreement with the State in which he pleaded guilty to theft as a Class D felony and the burglary charge was dismissed. On February 21, 2006, the trial court sentenced Vogel under the terms of the plea agreement to 545 days imprisonment, with all time not already served suspended to probation. If Vogel successfully completed his probation, then his felony theft...