MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Sep 07 2016, 9:28 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Alan James Hoover Gregory F. Zoeller
Pendleton, Indiana Attorney General of Indiana
Karl M. Scharnberg
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Alan James Hoover, September 7, 2016
Appellant-Defendant, Court of Appeals Case No.
55A01-1508-PC-1286
v. Appeal from the Morgan Circuit
Court
State of Indiana, The Honorable Matthew Hanson,
Appellee-Plaintiff. Judge
Trial Court Cause No.
55C01-1506-PC-868
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 55A01-1508-PC-1286 | September 7, 2016 Page 1 of 6
[1] Alan Hoover appeals from the denial of his petition for post-conviction relief.
Hoover presents three issues for our review, one of which we find dispositive:
Did the trial court abuse its discretion by summarily denying his petition for
post-conviction relief (PCR petition) without a hearing?
[2] We reverse and remand.
Facts & Procedural History
[3] On October 29, 2008, the State charged Hoover with murder, a felony, and
aggravated battery, a Class B felony. On February 2, 2009, the State amended
the charging information by replacing the aggravated battery count with felony
murder, and adding a count for robbery as a Class A felony. A four-day jury
trial commenced on March 23, 2009. The jury found Hoover guilty of robbery,
acquitted him of murder, and was unable to reach a verdict as to felony murder.
The trial court held a sentencing hearing on April 22, 2009, and sentenced
Hoover to twenty-five years imprisonment. Hoover filed a notice of appeal the
same day.
On direct appeal, Hoover argued that (1) the acquittal on the murder charge
and the inability of the jury to reach a decision on the felony murder charge
rendered his conviction for robbery as a Class A felony inconsistent; (2) the
evidence was insufficient to support his robbery conviction; (3) the trial court
erred in instructing the jury on felony murder; (4) the trial court erred by not
instructing the jury on the lesser offense of theft; and (5) double jeopardy
principles prohibited retrial on felony murder. This court affirmed Hoover’s
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conviction for robbery and further concluded that Hoover could not be retried
on the felony murder count. Hoover v. State, 918 N.E.2d 724 (Ind. Ct. App.
2009), trans. denied.
[4] On July 30, 2010, Hoover filed a PCR petition, which was withdrawn without
prejudice on October 23, 2013. On June 5, 2015, Hoover, pro se, filed the
instant PCR petition. Hoover raised four issues: (1) his appellate counsel1 was
ineffective, (2) he was denied due process when the “self-defense absolving
affects [were] not applied to all counts/elements”, (3) he was denied due
process because he was not provided notice of the nature of the charges against
him, and (4) his trial counsel was ineffective for failing to raise mitigating
circumstances at sentencing. Appellant’s Appendix at 4. Pursuant to Hoover’s
request, he was appointed a public defender. The State filed an answer to
Hoover’s PCR petition generally denying the allegations therein. On July 30,
2015, the public defender filed a notice of non-representation, asserting that
Hoover’s claims were not meritorious or in the interest of justice. See Ind. Post-
Conviction Rule 1(9)(c). The following day the trial court entered an order
summarily denying Hoover’s PCR petition without a hearing. Hoover now
appeals.
Discussion & Decision
1
It appears that the same attorney represented Hoover at trial and on appeal.
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[5] Post-conviction proceedings afford petitioners a limited opportunity to raise
issues that were unavailable or unknown at trial and on direct appeal. Conner v.
State, 711 N.E.2d 1238, 1244 (Ind. 1999); see also Ind. Post-Conviction Rule
1(1)(a). Such proceedings are not “super appeals” through which convicted
persons can raise issues that they failed to raise at trial or on direct appeal.
McCary v. State, 761 N.E.2d 389, 391 (Ind. 2002). Post-conviction proceedings
are civil in nature, and petitioners bear the burden of proving their grounds for
relief by a preponderance of the evidence. P-C.R. 1(5).
[6] Post-Conviction Rule 1(4) provides two different subsections under which a
post-conviction court may deny a petition without a hearing—subsection (f)
and subsection (g). Subsection (f) provides that a post-conviction court “may
deny the petition without further proceedings” if “the pleadings conclusively
show that [the] petitioner is entitled to no relief [.]” Ind. Post–Conviction Rule
1(4)(f). Subsection (g) provides that a post-conviction court:
may grant a motion by either party for summary disposition of
the petition when it appears from the pleadings, depositions,
answers to interrogatories, admissions, stipulations of fact, and
any affidavits submitted, that there is no genuine issue of
material fact and the moving party is entitled to judgment as a
matter of law.
P-C.R. 1(4)(g). Disposal of a petition under each of these two subsections leads
to a different standard of review on appeal. Allen v. State, 791 N.E.2d 748, 752
(Ind. Ct. App. 2003), trans. denied.
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Here, there was no motion filed by either party requesting summary disposition.
Rather, the day after the public defender filed its notice of non-participation, the
trial court summarily denied Hoover’s PCR petition, finding that his requested
relief was “not warranted.” Appellant’s Appendix at 22. Thus, the summary
disposition in this case was pursuant to subsection (f).
[7] When a court disposes of a petition under P-C.R. 1(4)(f), we essentially review
the lower court’s decision as we would a motion for judgment on the pleadings.
Allen, 791 N.E.2d at 752. The court errs in disposing of a petition in this
manner unless “the pleadings conclusively show that petitioner is entitled to no
relief.” P-C.R. 1(4)(f). If the petition alleges only errors of law, then the court
may determine without a hearing whether the petitioner is entitled to relief on
those questions. Allen, 791 N.E.2d at 753 (Clayton v. State, 673 N.E.2d 783, 785
(Ind. Ct. App. 1996)). However, if the facts pled raise an issue of possible
merit, then the petition should not be disposed of under section 4(f). Id. “This
is true even though the petitioner has only a remote chance of establishing his
claim.” Id. (quoting Clayton, 673 N.E.2d at 785).
[8] It is well-settled that a post-conviction proceeding is generally the preferred
forum for adjudicating claims of ineffective assistance of counsel because the
presentation of such claims often requires the development of new evidence not
present in the trial record. See Jewell v. State, 887 N.E.2d 939, 941-42 (Ind.
2008); Woods v. State, 701 N.E.2d 1208, 1220 (Ind. 1998). Hoover asserted a
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claim of ineffective assistance of counsel.2 Although Hoover did not specifically
delineate how his counsel was ineffective at this stage, his claim is not subject to
summary denial without a hearing. Indeed, the pleading does not “conclusively
show that [Hoover] is entitled to no relief.” See P-C.R. 1(4)(f). The trial court
erred in denying Hoover’s PCR petition without a hearing. We therefore
reverse the trial court’s order denying Hoover’s PCR petition and remand with
instructions to conduct a hearing thereon.
[9] We reverse and remand.
[10] Bailey, J. and Bradford, J., concur.
2
Hoover presented other claims in his PCR petition, some of which may fall under his claim of ineffective
assistance of appellate counsel.
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