FILED
Mar 15 2017, 9:21 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Stephen T. Owens Curtis T. Hill, Jr.
Public Defender of Indiana Attorney General of Indiana
Jeffrey R. Wright J.T. Whitehead
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Gary Hanks, March 15, 2017
Appellant-Petitioner, Court of Appeals Case No.
10A01-1604-PC-690
v. Appeal from the Clark Circuit
Court
State of Indiana, The Honorable Andrew Adams,
Appellee-Respondent. Judge
Trial Court Cause No.
10C01-1106-PC-7
Mathias, Judge.
[1] Gary Hanks (“Hanks”) pleaded guilty in Clark Circuit Court to one count of
Class A felony child molesting. Hanks collaterally attacks his plea as the
product of the ineffective assistance of his trial counsel and as not knowingly,
intelligently, and voluntarily made. Hanks’s petition for post-conviction relief
on those grounds was denied by the court below.
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[2] When a defendant is deciding whether to expose himself to a sentencing judge’s
absolute discretion, is local defense counsel constitutionally required to advise
his client of the local judge’s sentencing practices in cases like his client’s?
Because Hanks has not persuaded us that, as applied to the facts of his case,
counsel was required to do so, we affirm as to the ineffective assistance claim.
We remand for judgment on the voluntariness claim because it was raised but
not resolved below.
Facts and Procedural History
[3] On July 20, 2000, Hanks was charged with one count of Class A felony child
molesting and four counts of Class C felony child molesting. The State’s case
for guilt was strong: Hanks’s grade-school-aged victim, then living with Hanks,
had come forward with credible accusations and Hanks had admitted the truth
of most or all of them during a noncustodial taped interview in Hanks’s home
with a detective of the Jeffersonville Police Department.
[4] On February 5, 2001, after withdrawal of Hanks’s private counsel, the Clark
Circuit Court appointed the Clark County public defender to represent Hanks.
On February 13, 2001, attorney Christopher Sturgeon (“Sturgeon”) of the
public defender’s office entered his appearance for Hanks. Sturgeon had had a
long career in Clark County criminal litigation, serving as a deputy prosecutor
from 1989 to 1994 and as a public defender since 1994. Hanks was then being
held in the Clark County jail.
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[5] On March 7, 2001, from his office about five miles away, Sturgeon sent Hanks
a letter in jail about a plea offer Sturgeon had received from the State. Under
the offer (“the thirty-year offer”), Hanks would plead guilty to the Class A
felony charge. In return, the State would dismiss the four Class C felony
charges and recommend a thirty-year sentence, then the presumptive sentence
for a Class A felony. Sturgeon “assume[d]” that he and Hanks had discussed
the thirty-year offer before Sturgeon’s March 7, 2001, letter, Tr. p. 31, but, in
any event, Hanks held out hope for a reduced sentence between the twenty-year
statutory minimum and the thirty-year presumptive sentence.
[6] In his letter, Sturgeon emphasized that the prosecutor “will not reduce her
previous [thirty-year] plea offer . . . .” Ex. Vol., Pet.’s Ex. G (original
emphasis). Hanks “must either accept her plea offer or go to trial.” Id. Sturgeon
advised Hanks of the ninety-year maximum sentence Hanks could face if he
went to trial on all five felony charges and lost. Sturgeon noted that Hanks had
previously told him that Hanks “did not have any intention of going to trial.”
Id. Hanks now needed to make a final decision “whether [he] want[ed] to
accept the plea agreement or go to trial.” Id. With trial set for March 20, 2001,
Sturgeon needed to know Hank’s choice “immediately.” Id. Beyond reciting the
terms of the thirty-year offer and the statutory maximum sentence Hanks could
face if convicted of all charges, Sturgeon provided no substantive advice as to
which course to pursue and did not suggest any alternative courses.
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[7] Hanks did not accept the thirty-year offer. The record does not disclose whether
Hanks expressly rejected it, or whether and when the offer expired or was
withdrawn. On Hanks’s motion, trial was continued to June 26, 2001.
[8] On May 21, 2001, the State made a new offer (“the open offer”): Hanks would
plead guilty “open,” that is, without benefit of a sentencing recommendation
from the State, to the Class A felony charge. If the agreement were accepted by
the trial court, the trial court would retain absolute discretion to fix any
sentence between the twenty-year statutory minimum and the fifty-year
statutory maximum. In return, as under the thirty-year offer, the State would
dismiss the four Class C felony charges.
[9] The course of negotiations leading to this offer, and Sturgeon’s advice, if any, to
Hanks as he considered it, do not appear clearly from the record. Hanks
testified that, beyond the thirty-year offer, the “only other avenue that
[Sturgeon] presented to [him] was the [open offer] or going to trial.” Tr. p. 52.
Hanks testified that he and Sturgeon did not discuss what the sentencing judge
“might do” in sentencing Hanks on an open plea, Tr. p. 55, and that Hanks
received no guidance on the likelihood of achieving his stated goal of a sentence
under thirty years. Tr. p. 52. Hanks accepted the open offer, still hoping for a
sentence less than thirty years. On June 11, 2001, the plea agreement was filed
and accepted by the trial court.
[10] At that time, Judge Daniel F. Donahue (“Judge Donahue”) was judge of the
Clark Circuit Court. Judge Donahue served in that capacity from 1987 to 2008.
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During that time, Judge Donahue, according to his own account, “took a hard
stance in sentencing defendants in sexual offender sentencing proceedings.” Ex.
Vol., Pet.’s Ex. E. While Judge Donahue based his sentencing decisions on the
evidence and argument presented by the parties, “it was not uncommon for
maximum sentences to be imposed” by him in sex offender cases. Id. This
“history of imposing maximum sentences in se[x] offender cases,” Judge
Donahue thought, “would likely” have been known to local criminal
defendants and to the local defense bar. Id. Moreover, Judge Donahue “did not
particularly care for ‘blind [i.e., open] pleas,’ but preferred to have the State and
the defense decide an appropriate sentence . . . and present that determination
to the [c]ourt for its acceptance or rejection.” Id. Sturgeon, however, despite his
long career in Clark County criminal litigation, was aware neither of Judge
Donahue’s sentencing practices in sex offender cases, Tr. p. 21, nor of Judge
Donahue’s disfavor of open pleas. Tr. p. 22.
[11] At his July 11, 2001, sentencing before Judge Donahue, Hanks pleaded for
mercy. Sturgeon pointed out Hanks’s contrition and immediate acceptance of
responsibility but brought forward no evidence in mitigation outside what
Hanks had just told the court in allocution. The State brought forward the
victim’s mother and tendered a case on appropriate sentencing in cases like
Hanks’s. The prosecutor hoped “God shows [Hanks] mercy. This [c]ourt
should show him none.” Ex. Vol., Pet.’s Ex. C., p. 26. Judge Donahue
exercised his absolute discretion to the fullest and sentenced Hanks to the
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statutory maximum fifty-year term in the Department of Correction. Hanks did
not appeal his sentence.
[12] Sometime later, Hanks heard from a fellow inmate at the Department of
Correction that the following colloquy with Judge Donahue had taken place at
the fellow inmate’s September 30, 2002, sentencing hearing on an open guilty
plea to a sex offense:
The Court: Were you aware of the fact that in two prior
cases of a similar nature in which [the fellow
inmate’s counsel] was defense attorney I
maxed out [i.e., gave the maximum sentence
to] the two individuals and they’re both serving
fifty years in prison. Were you aware of that?
[Fellow Inmate]: No, sir. . . . .
The Court: [The fellow inmate’s counsel] represented them
and they were blind pleas and I listened to it
all. I read the Pre-Sentence Investigation
Report. I heard what every, each side had to
say. And in those cases I maxed them out . . . .
So I’m going to do the same thing here. I don’t
know, as I sit here I cannot tell you
immediately what sentence I’m going to
impose, but you need to know for the record
that in these kinds of cases I—[i]t ought to be
known to criminal [d]efendants that I take a
pretty hard stand. . . . . I want you to know that
that’s the history that I have. And to be fair to
you, you need to know it up front before we go
forward and before you enter pleas . . . . I don’t
particularly care for blind pleas. I’d much
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rather the State and the defense, and defense
counsel decide what is appropriate based upon
history. . . . I’ll tell you what we’ll do. We’ll go
off record. And I’ll step down and we’ll give
[the fellow inmate] and [his attorney] five or
ten minutes to discuss this. . . . [Y]ou need to
know up front, and you, quite frankly, should
have been told.
Confidential Ex. Vol., Pet.’s Ex. D1, pp. 20–21.
[13] Hanks petitioned for post-conviction relief on June 16, 2011. The post-
conviction court heard evidence and argument on Hanks’s amended petition on
January 22, 2016. Particularly, the court heard the testimony of Hanks,
Sturgeon, and Jeffrey Stonebraker (“Stonebraker”), chief public defender for
Clark County in 2001 and at the time of the hearing in this case. The post-
conviction court denied the petition on March 8, 2016.
[14] This appeal timely followed. Hanks claims that Sturgeon provided
constitutionally ineffective assistance in failing to advise Hanks of Judge
Donahue’s sentencing practices with regard to open pleas in sex offender cases,
but for which failure Hanks would not have rejected the thirty-year offer. Hanks
claims further that, from his ignorance of Judge Donahue’s sentencing
practices, his guilty plea was not knowingly, intelligently, and voluntarily made.
To remedy these alleged deficiencies, Hanks seeks reduction of his fifty-year
sentence to thirty years.
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Standard of Review
[15] A post-conviction petitioner bears the burden of showing he is entitled to relief
by a preponderance of the evidence. Bethea v. State, 983 N.E.2d 1134, 1138 (Ind.
2013); Ind. Post-Conviction Rule 1(5). A petitioner appealing the denial of his
petition thus appeals from a negative judgment, that is, from an adverse
decision of an issue on which the petitioner bore the burden of proof. Bethea,
983 N.E.2d at 1138. To prevail on appeal of a negative judgment, the petitioner
must show that the evidence as a whole leads unerringly and unmistakably to a
conclusion opposite that reached by the post-conviction court. Id. We disturb
that court’s factual findings only where clearly erroneous, leaving us with a
definite and firm conviction that a mistake has been made. Id. We review legal
conclusions de novo. Id.
Discussion and Decision
I. Ineffective Assistance of Counsel
[16] The Sixth Amendment to the federal constitution, applied to this state in
relevant part by the Fourteenth Amendment, protects the right of an accused
“[i]n all criminal prosecutions . . . to have the assistance of counsel for his
defense.” U.S. Const. amend. VI; Powell v. Alabama, 287 U.S. 45, 68 (1932).
Our state constitution protects the same right. Ind. Const. art. I, § 13 (“In all
criminal prosecutions, the accused shall have the right . . . to be heard by . . .
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counsel . . . .”).1 The assistance of counsel means the effective assistance of
counsel. Powell, 287 U.S. at 71. Counsel himself can deprive an accused of his
Sixth Amendment right by failing to render adequate legal assistance. Strickland
v. Washington, 466 U.S. 668, 686 (1984). A defendant who receives ineffective
assistance is entitled to a remedy that will “neutralize the taint of [the]
constitutional violation,” Lafler v. Cooper, 132 S. Ct. 1376, 1388 (2012) (internal
quotation and citation omitted), including setting aside a guilty plea where
necessary. Id. at 1389.
[17] To prevail on a claim that he has received ineffective assistance of counsel, a
defendant must satisfy a two-pronged test: first, that counsel’s performance fell
below an objective standard of professional reasonableness (“the performance
prong”); second, that there is a reasonable probability the outcome of the
proceeding would have been different but for counsel’s unprofessional errors
(“the prejudice prong”). Strickland, 466 U.S. at 687; Bethea, 983 N.E.2d at 1138–
39. Failure to satisfy either prong causes the whole claim to fail. French v. State,
778 N.E.2d 816, 824 (Ind. 2002). This analysis applies equally to plea
negotiations as to trial performance, Hill v. Lockhart, 474 U.S. 52 (1985), Segura
v. State, 749 N.E.2d 296 (Ind. 2001), as plea negotiation is one of the “critical
phase[s] of litigation” to which the Sixth Amendment right attaches. Padilla v.
Kentucky, 559 U.S. 356, 373 (2010).
1
Hanks raises no separate argument from this provision of our constitution.
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[18] The alleged deficiency in Sturgeon’s performance is his failure to advise Hanks
of Judge Donahue’s sentencing practices in sex offender cases. The post-
conviction court expressly found that Sturgeon “did not know” of those
practices. Appellant’s App. p. 156. Hanks does not ask us to revisit that finding;
indeed, he argues that the standard of review prohibits us from doing so.
Appellant’s Br. p. 17. Rather, Hanks claims, Sturgeon’s “lack of knowledge,
alone” was deficient performance. Id.
[19] This was the same claim the post-conviction court rejected as a matter of law.
Appellant’s App. p. 157 (post-conviction court’s memorandum decision, ruling
that, in the absence of evidence that “[Sturgeon] had any knowledge of what
the judge would do or that [Sturgeon] mislead his client, [Sturgeon’s] failure to
know, alone, does not meet the standard for ineffective assistance . . . .”). We
owe no deference to the post-conviction court’s legal conclusion that Sturgeon’s
failure to know, alone, cannot rise to the level of constitutionally deficient
performance.
[20] “Even under de novo review,” however, “the standard for judging counsel’s
representation is a most deferential one.” Premo v. Moore, 562 U.S. 115, 122
(2011) (internal quotation and italics omitted). “[C]ounsel’s performance is
presumed effective,” a presumption overcome only by “strong and convincing
evidence” of ineffectiveness. Overstreet v. State, 877 N.E.2d 144, 152 (Ind. 2007).
Accordingly, we presume that all significant decisions were made in the
exercise of counsel’s reasonable professional judgment. Timberlake v. State, 753
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N.E.2d 591, 603 (Ind. 2001). In particular, counsel enjoys broad discretion in
making tactical and strategic decisions, and we defer to such decisions. Id.
[21] “[H]ow to define the duty and responsibilities of defense counsel in the plea
bargain process” is a “difficult question.” Missouri v. Frye, 132 S. Ct. 1399, 1408
(2012). The interaction of Strickland with the Supreme Court’s more recent
decisions in Padilla, Lafler, and Frye has created “a new field not only of plea-
bargaining law, [as charged by the Lafler dissenters, 132 S. Ct. at 1391 (Scalia,
J., dissenting),] but also of pretrial advice law.” Richard E. Myers II, The Future
of Effective Assistance of Counsel: Rereading Cronic and Strickland in Light of
Padilla, Frye, and Lafler, 25 Tex. Tech. L. Rev. 229, 234 (2013). The
boundaries of this new field are still undefined. Neither Hanks nor the State
have provided us with adequate guidance for resolving this question of first
impression: When a defendant is deciding whether to expose himself to a local
sentencing judge’s absolute discretion, is local defense counsel constitutionally
required to advise his client of the local judge’s sentencing practices in cases like
his client’s?
[22] First, the distinctions between failure to know, failure to advise, and
affirmatively bad advice are not dispositive to the legal analysis of Hanks’s
claim. To the extent that the post-conviction court’s decision relied on those
distinctions, the court erred.
[23] The Supreme Court considered the operation of the distinction between failure
to advise and bad advice in Padilla. There, a long-time lawful permanent
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resident of the United States pleaded guilty to several drug offenses. Counsel
did not tell Padilla that his guilty plea “made his deportation virtually
mandatory,” 559 U.S. at 359, and affirmatively advised him not “to worry
about immigration status.” Id.
[24] The Court squarely held “that counsel must inform her client whether his plea
carries a risk of deportation.” Id. at 374 (emphasis added). This holding
expressly rejects the distinction between failure to advise and bad advice. See
also id. at 369-70 (considering whether to limit Strickland to cases of bad advice,
where its application is well settled, and deciding not to so limit it), 388 (Alito,
J., concurring in the judgment) (“[S]ilence alone is not enough to satisfy
counsel’s duty to assist the client.”); Black v. State, 54 N.E.3d 414, 427 (Ind. Ct.
App. 2016) (reading Padilla to hold that “there is no relevant difference between
an act of commission and an act of omission”), trans. denied. This holding also
impliedly rejects the distinction between failure to advise of what is known and
failure to know, alone.
[25] Similarly, in Frye, a case close to the facts before us, defense counsel failed to
inform the defendant of a favorable plea offer from the prosecution. The offer
lapsed. Frye later pleaded guilty open, as Hanks did, and received a harsher
sentence than he would have under the lapsed offer. There as here, “the guilty
plea that was accepted, and the plea proceedings concerning it in court, were all
based on accurate advice and information from counsel.” Frye, 132 S. Ct. at
1406. There as here, “[t]he challenge is not to the advice pertaining to the plea
that was accepted [viz., in Hanks’s case, the choice between the open offer and
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trial] but rather to the course of legal representation that preceded it with
respect to other potential pleas and plea offers [viz., in Hanks’s case, the choice
between the thirty-year offer, trial, or seeking a more favorable offer].” Id.
[26] The Court held that, “as a general rule, defense counsel has the duty to
communicate formal offers from the prosecution to accept a plea on terms and
conditions that may be favorable to the accused.” Id. at 1408 (emphasis added).
Nothing here suggests that counsel’s duty to communicate would have
evaporated if Missouri had shown that Frye’s counsel did not actually know of
the plea offer (for example, if counsel never opened the prosecutor’s letter
communicating the offer), so long as it could fairly be said that counsel should
have known of the offer.
[27] If failure to advise may be constitutionally deficient on the same terms as bad
advice, the cause of a failure to advise, whether because of overwork,2
procrastination, or ignorance, is immaterial. The right at issue is the right “the
accused shall enjoy,” U.S. Const. amend. VI (emphasis added), to receive the
effective assistance of counsel. It is either the right of an accused to be advised
of a particular fact, or it is not. If information about a local judge’s sentencing
practices is a necessary component of receiving effective assistance from local
2
In Frye, “Galin Frye’s lawyer did not make a strategic choice to decline to relay the prosecutor’s offer
because he thought it was unreasonable or that Frye had a case worth taking to trial. Rather, he was
struggling with a crushing caseload that so preoccupied him that he did not even find the time to
communicate a favorable plea offer to Frye.” Peter A. Joy & Rodney J. Uphoff, Systemic Barriers to Effective
Assistance of Counsel in Plea Bargaining, 99 Iowa L. Rev. 2103, 2112 (2014).
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counsel in a particular case, the accused’s lack of such information satisfies the
performance prong without regard for why counsel failed to supply it. Put
another way, the content of the Sixth Amendment right is defined by an objective
standard of professional reasonableness, not by individual counsel’s subjective
knowledge, skill, or diligence.
[28] Next, with no barrier as a matter of law to Hanks’s claim, it remained Hanks’s
burden to show that, on the facts of his case, Sturgeon’s failure to advise him of
Judge Donahue’s sentencing practices fell below an objective standard of
professional reasonableness. This Hanks has not done.
[29] In its standards for criminal practitioners, the American Bar Association
(“ABA”) states, with respect to sentencing, “Defense counsel’s preparation
should . . . include familiarization with the court’s practices in exercising
sentencing discretion . . . and [with] the normal pattern of sentences for the
offense involved . . . .” Criminal Justice Standards: Prosecution Function and
Defense Function Standard 4-8.1 (Am. Bar Ass’n 1993). The comment to
Standard 4-8.1 explains further that “[c]ounsel must . . . become familiar with
the judge’s actual sentencing practices. . . . The lawyer should carefully explain
to the defendant the sentencing alternatives available to the court and what they
will mean for the defendant personally . . . .” Id. at cmt. We note that the
language of the governing standard itself is hortatory (“should”); only the
language of the comment is mandatory (“must”). Neither the ABA’s Model
Rules of Professional Conduct nor Indiana’s Rules of Professional Conduct
speak directly to this issue.
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[30] Whether, as a general rule, performance is measured by a national or local
standard is not settled. See Strickland, 466 U.S. at 689 (“Prevailing norms of
practice as reflected in [ABA] standards and the like . . . are guides to
determining what is reasonable . . . .”). Compare Rompilla v. Beard, 545 U.S. 374,
387 (2005) (The ABA standards state counsel’s obligation to investigate “in
terms no one could misunderstand . . . .”), Wiggins v. Smith, 539 U.S. 510, 524
(2003) (“Counsel’s conduct . . . fell short of the standards for capital defense
work articulated by the [ABA] . . . .”), Williams v. Taylor, 529 U.S. 362, 396
(2000) (finding deficient performance in capital sentencing where “trial counsel
did not fulfill their obligation to conduct a thorough investigation of the
defendant’s background” as required by ABA standards), with Cullen v.
Pinholster, 563 U.S. 170, 196 (2011) (denying relief and faulting dissenters for
failing to cite evidence that counsel’s conduct “would have been inconsistent
with the standard of professional competence in capital cases that prevailed in
Los Angeles in 1984”), Wiggins, 539 U.S. at 524 (“Counsel’s decision . . . fell
short of the professional standards that prevailed in Maryland in 1989.”).
[31] The strongest claims for deficient performance, of course, present failures of
multiple standards. See Frye, 132 S. Ct. at 1408 (granting relief relying on ABA
standards, holdings of five state high courts and seven federal circuits, and six
state codes of professional conduct), Wiggins, 539 at 524–25 (relying on both
national and local standards). The Supreme Court has emphasized that national
standards like the ABA’s are “guides to determining what is reasonable, but
they are only guides.” Strickland, 466 U.S. at 688.
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[32] In the case of familiarity with local judges’ sentencing practices, a national
standard, standing alone, seems particularly inadequate to determining the
lower bounds of reasonably effective performance. We acknowledge that the
federal constitution must mean the same thing in Clark County as in Marion
County, see Tr. p. 65 (prosecutor expressing doubt about how Hanks’s argument
could apply to large counties like Marion), and the same thing in Indiana as in
Illinois. Martin v. Hunter’s Lessee, 14 U.S. 304, 348 (1816) (Story, J.) (“If . . . the
constitution of the United States [c]ould be different in different states, . . . [t]he
public mischiefs that would attend such a state of things would be truly
deplorable . . . .”). Further, we acknowledge that use of a local standard may
validate as “tactical” the individual decisions imposed on counsel by a
structurally deficient system of representation, whether due to systemic
prejudice, systemic lack of resources, or other systemic defect. See Tollett v.
Henderson, 411 U.S. 258, 269 (1973) (“[T]he chances of respondent’s being able
to [prove an incompetently counseled guilty plea on remand] would appear
slim” in view of the lower courts’ reliance on “the statement of the concurring
judge in the Tennessee Court of Criminal Appeals that ‘[n]o lawyer in this State
would have ever thought of objecting to the fact that Negroes did not serve on
the Grand Jury in Tennessee in 1948 . . . .’”).
[33] Nevertheless, in the case of local counsel’s familiarity with a local judge’s
sentencing practices in a class of cases, while the ABA standards impose a
general, national obligation on defense counsel to attain such familiarity, the
particular content of this obligation is susceptible to local variation in a way
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that other professional standards, for example, the duty to adequately
investigate or the duty to communicate plea offers, are not. What level of
familiarity with local judges in a class of cases is professionally reasonable, and
how quickly it is professionally reasonable to attain that level of familiarity, will
obviously be very different in Clark County, Indiana, than in Cook County,
Illinois, with a population nearly fifty times as great.3
[34] When a claim of ineffective assistance is predicated on failure to advise of or act
on local, extralegal idiosyncrasies, as Hanks’s is, a showing of deficient
performance requires strong evidence that the local, extralegal idiosyncrasy rose
to the level of governing professional norm. See Premo v. Moore, 562 U.S. at 122
(“The question is whether an attorney’s representation amounted to
incompetence under prevailing professional norms, not whether it deviated
from best practices or most common custom.” (internal quotation and citation
omitted)).
[35] Crucially, there is no evidence in the record that reasonable professional
competence in Clark County in 2001 required knowledge of Judge Donahue’s
sentencing practices in sex offender cases. The only evidence in the record is
that Sturgeon did not know of these practices; that Stonebraker, the chief public
defender for Clark County, and his office did not formally or informally instruct
3
Clark County, population 110,232; Cook County, population 5,194,675. U.S. Census Bureau, 2010 Census
Interactive Population Search, http://www.census.gov/2010census/popmap/ipmtext.php?fl=18019:17031 (last
updated May 26, 2011).
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its attorneys on these or other judges’ practices; and that Judge Donahue
speculated local attorneys “would likely” know of his practices. Ex. Vol., Pet.’s
Ex. E.
[36] Neither Judge Donahue nor a single local attorney claimed that any local
attorney actually did know of Judge Donahue’s practices. There is no evidence
of the frequency with which sex offender cases were brought before Judge
Donahue, still less of how many such cases were brought before the judge on
open pleas, such that the judge’s “hard stance” in those cases, id., could or
should have been inferred by local counsel. No evidence tended to show Judge
Donahue actually had his self-ascribed reputation. To the contrary, Stonebraker
testified that, in general, Judge Donahue “did not have a reputation for giving
the maximum sentence in every case,” that Judge Donahue was thought to
“evaluat[e] each case on its merits,” and that Judge Donahue did not have a
reputation as a “hanging judge, so to speak.” Tr. p. 45. Judge Donahue’s
speculation that he “would likely” have had such a reputation in sex offender
cases is far from showing that local attorneys as a matter of professional
competence should have known of his sentencing practices in such cases. Ex.
Vol., Pet.’s Ex. E.
[37] Below, Hanks argued that “an attorney has to more than just say, you know,
here’s the offer, here’s the sentence . . . , what do you want to do. An attorney
has to give his client a little more guidance than that.” Tr. p. 69; see Boria v.
Keane, 99 F.3d 492, 495 (2d Cir. 1996) (finding counsel’s agnosticism as to a
plea offer to be constitutionally deficient because the ABA “standard on the
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precise question before us is . . . [that a] ‘defense lawyer in a criminal case has
the duty to advise his client on whether a particular plea to a charge appears to
be desirable.’” (internal citation omitted)).
[38] It is true that Sturgeon’s March 7, 2001, letter to Hanks offered no evaluation of
or substantive advice regarding the wisdom of accepting the thirty-year offer.
Sturgeon testified that such letters were his “standard practice” when a client
did not want to accept a pending plea offer, drafted “the same day or within
days,” Tr. p. 20, leaving little time for meaningful investigation or evaluation.
Sturgeon implied that anything more would remove the decision from his
clients’ hands. See Tr. p. 31. Sturgeon further testified that another “standard
practice” was “always to take about fifteen minutes and go through . . . plea
agreements with [his] clients, paragraph by paragraph.” Tr. p. 32 (emphasis
added). Hanks testified that he and Sturgeon did not discuss what the
sentencing judge “might do” in sentencing Hanks on an open plea, Tr. p. 55,
and that Hanks received no guidance on the likelihood of achieving his stated
goal of a sentence under thirty years. Tr. p. 52. Though Sturgeon could not
recall any specifics of Hanks’s case, this testimony suggests that Hanks decided
to throw himself at the mercy of Judge Donahue, exposing himself to fifty
years’ incarceration, on the strength of one letter reciting the applicable
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statutory maximum and minimum sentences, one fifteen-minute read-through
of the terms of the plea agreement, and nothing else. 4
[39] Hanks has not, however, renewed broad arguments from these facts on appeal,
and they do not go to his narrow claim for failure to advise of Judge Donahue’s
sentencing practices.
[40] For all of these reasons, we conclude that Hanks has not carried his burden to
show that the facts of this case lead unerringly and unmistakably to the
conclusion that Sturgeon, by his failure to advise Hanks of Judge Donahue’s
sentencing practices in sex offender cases, fell short of the standard of
reasonable competence demanded of Clark County defense counsel in 2001.
We must decline Hanks’s invitation to constitutionalize Judge Donahue’s
opinion about what a different criminal defendant, “quite frankly, should have
been told.” Confidential Ex. Vol., Pet.’s Ex. D1, p. 21.
4
Moreover, in a case where Hanks’s guilt was nearly a foregone conclusion, and nearly all the benefit Hanks
could get from counsel would be had either in plea bargaining or at sentencing, Sturgeon presented effectively
no case in mitigation. Hanks pleaded for mercy in allocution; Sturgeon pointed out that Hanks had just
accepted responsibility and was contrite. However, Sturgeon did emphasize that “nobody . . . can undo what
has been done to [Hanks’s victim],” Ex. Vol., Pet.’s Ex. B, p. 18, that Hanks was “willing to accept whatever
punishment the [c]ourt deems necessary,” id. at p. 19, that “whatever the [c]ourt does to [Hanks] is nothing
compared to what he has done to [his victim],” id., that “it’s between Mr. Hanks and God,” id., and that
Sturgeon was not “going to sit here and try to recommend anything specific to the [c]ourt,” id. at p. 20,
despite his client’s repeatedly expressed desire for a sentence less than the presumptive. Tr. pp. 51–52.
Sturgeon’s parsimony and sua maxima culpa could not, of course, have been a tactical preference in the face of
Judge Donahue’s “hard stance” in sex offender cases, Ex. Vol., Pet.’s Ex. E, because Sturgeon did not know
of that stance.
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[41] Because Hanks failed to show deficient performance, his entire ineffective
assistance claim fails, and we need not reach the question of prejudice. French v.
State, 778 N.E.2d 816, 824 (Ind. 2002).
II. Knowing, Intelligent, and Voluntary Plea
[42] Hanks claims further that his plea, from ignorance of Judge Donahue’s
sentencing practices, was not knowing, intelligent, and voluntary. Hanks
properly raised this claim in the post-conviction court, supporting it with
evidence and argument. Appellant’s App. pp. 55-57 (memorandum of law in
support of amended petition), 148-49 (proposed findings of fact and conclusions
of law). Hanks renews these arguments on appeal. Appellant’s Br. pp. 19-22.
[43] That claim, however, was never resolved by the court below. See Appellant’s
App. pp. 152-157 (trial court’s memorandum order denying relief, never
discussing or deciding the voluntariness issue). Post-conviction courts are
required “to make specific findings of fact, and conclusions of law on all issues
presented” by a petition for post-conviction relief. P-C.R. 1(6). The State has
not addressed the voluntariness claim with separate argument on appeal. See
Appellee’s Br. pp. 14-15 (treating ineffective assistance and voluntariness claims
as indistinguishable).
[44] “[V]oluntariness [of pleas] is distinct from ineffective assistance of counsel.”
Cornelious v. State, 846 N.E.2d 354, 358 (Ind. Ct. App. 2006) (citing State v.
Moore, 678 N.E.2d 1258, 1266 (Ind. 1997)), trans. denied. The two claims are
reviewed under different standards. Id. “Voluntariness in Indiana practice
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focuses on whether the defendant knowingly and freely entered the plea, in
contrast to ineffective assistance, which turns on the performance of counsel
and resulting prejudice.” Id. (internal quotation and citation omitted).
“[D]efendants who can show that they were coerced or misled into pleading
guilty by the judge, prosecutor or defense counsel will present colorable claims
for relief.” Moore, 678 N.E.2d at 1266. Further, a plea may be involuntary
because improperly induced by unfulfillable promises. Lineberry v. State, 747
N.E.2d 1151 (Ind. Ct. App. 2001).
[45] Hanks is entitled to be heard and receive the post-conviction court’s ruling on
this issue. We remand for a determination of whether Hanks was misled by
Sturgeon’s omission or improperly induced to accept the open offer on the
incorrect understanding that the open offer was more favorable than the thirty-
year offer.
Conclusion
[46] For all of these reasons, we affirm the post-conviction court’s denial of Hanks’s
ineffective assistance claim. We remand for judgment on whether Hanks’s plea
was knowing, intelligent, and voluntary in light of the applicable standard.
[47] Affirmed in part and remanded.
Robb, J., and Brown, J., concur.
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