MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
Jan 28 2020, 7:17 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cynthia M. Carter Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Ian McLean
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Sean Patrick Hogan, January 28, 2020
Appellant-Petitioner, Court of Appeals Case No.
19A-PC-1057
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances C. Gull,
Appellee-Respondent. Judge
Trial Court Cause No.
02D04-1710-PC-98
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1057 | January 28, 2020 Page 1 of 30
[1] Sean Patrick Hogan appeals the denial of his petition for post-conviction relief.
We affirm.
Facts and Procedural History
[2] The relevant facts as discussed in Hogan’s direct appeal follow:
A.B. was born June 15, 1999 to J.B. (“Mother”) and [A.B.’s
father]. In 2001, Mother and Hogan, who was at that time
approximately twenty-six years old, began dating. When A.B.
was about two-and-a-half years old, she, Mother, and Hogan
began living together on Springbrook Road in Fort Wayne,
Indiana. A.B. had visitation with Father on Mondays and
Thursdays and every other weekend. At some point in early
2003, Hogan and Mother had a child together, C.H.
Hogan often watched A.B. and C.H. while Mother was at work.
When A.B. was very young, Hogan introduced her to “the chair
game,” where Hogan would tie A.B. up to a computer chair “and
see if [she] could get out.” Tr. at 143. A.B. recalled, “He would
just say if I could get out I could do whatever I wanted to do to
him, and if I couldn’t then he could do whatever he wanted to
me.” Id. at 145. Hogan always tied A.B. so securely that she
couldn’t escape. At first, Hogan would just tickle A.B. when she
could not escape. One day, when A.B. was five years old and
failed to escape, Hogan told A.B., “what he was going to do he
could go to jail for so I couldn’t tell anybody and that what he
was going to do was going to make me feel like I had to pee.” Id.
at 144. A.B. recalled, “He put his mouth on my vagina.” Id.
A.B. recalled that Hogan’s abuse became worse as she grew
older. A.B. said she “grew up thinking it was okay, that
everything was okay” because Hogan “told me he was in love
with me.” Id. at 147. The first time A.B. learned that Hogan’s
conduct was not normal was when she was in the third or fourth
grade at school and saw a video “on like how stuff wasn’t okay,”
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and saw that other people “didn’t have people calling them that
much” or people who were “right by their sides” as she did. Id.
at 148, 149.
While A.B. was growing up, Hogan made her watch
pornographic videos and, when A.B. was eight or nine years old,
Hogan made two videos in which he made A.B. lie on top of him
while Hogan simulated having sex with her. Id. at 152. Hogan
later made A.B. watch one of the two videos. Prior to 2010,
handcuffs became a part of Hogan’s “games.” Id. at 155, 156.
A.B. testified that if she did not want to do something with
Hogan, he would use handcuffs to attach her to bars on the bed
frame and “sometimes belts with [her] hands and [her] legs.” Id.
at 155. A.B. recalled that sometimes Hogan presented this
behavior “more like it was a game” and that at other times, “it
would be like, no, you have to do this.” Id. at 156. A.B. testified
that if she expressed unwillingness, Hogan “would get really mad
and say I was like betraying him and stuff like that.” Id. at 155.
Hogan also would accuse A.B. of “cheating on him with
somebody at [her] school.” Id. Sometimes A.B. screamed in
protest, but she said, “[I]f I put up a fight, there was just going to
be more. There was just going to be a bigger fight and nothing
was going to work out. Either way it was going to happen.” Id.
at 156.
In 2010, after living on Springbrook Road for eight years, Hogan,
A.B., C.H., and Mother moved into a hotel for about a month
and then moved into a home on Fifth Street in Fort Wayne.
A.B. recalled that, when she was ten or eleven years old, Hogan
“made me do stuff to him”; he made me “put my mouth on his
penis,” “put my hands on his penis,” and “rub all over him.” Id.
at 151-52, 154. A.B. testified that while still living in Indiana,
when she was younger than twelve years old, Hogan touched her
“[a]ll over. My vagina, my breasts, my butt, everything.” Id. at
163. When asked whether Hogan touched the inside or outside
of her vagina, A.B. testified that Hogan used his fingers to touch
her vagina “[i]n and out.” Id. A.B. also testified that Hogan
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would sometimes make her stand on an exercise machine in a
position that allowed him to place his mouth on her vagina.
On returning home from work one evening, Mother found A.B.
in bed with Hogan. Hogan was cuddling A.B. and had his legs
draped over her. Mother ended her relationship with Hogan and
moved to Florida in May 2011, taking both A.B. and C.H. with
her. A.B. was eleven when the family moved to Florida. Mother
testified that, at that time, Hogan called A.B. about “35 times a
day,” “and he would text her all day long.” Id. at 374. Hogan
also sent frequent messages to A.B.’s Facebook page, in an effort
to get her attention. Id.
While living in Florida, A.B. and C.H. would return to Indiana
periodically to visit their respective fathers. These visits occurred
during winter break in 2011, during spring break in 2012, and
during the summer of 2012. When A.B. returned to Indiana for
visits, she visited Hogan’s house in order to see C.H. During
those visits, Hogan made A.B. sleep in his bed and compelled her
to engage in oral sex. One night, A.B., wanting to sleep in her
sister’s room, refused to sleep in Hogan’s bed. At two o’clock in
the morning, Hogan came into the room with “hot water and he
poured it all over me, just because I didn’t want to sleep in his
room.” Id. at 165. A.B. left C.H.’s room and went to sleep in
Hogan’s room.
During the summer of 2012, a custody battle resulted in A.B. and
C.H. moving to Fort Wayne to live with their respective fathers.
Thereafter, Hogan had regular contact with A.B. Father later
explained that he helped Hogan get a job with Father’s employer
so that Hogan could “get on his feet,” and he allowed Hogan to
spend time with A.B. because Father thought that Hogan
“always would take care of her and be there for her.” Id. at 455,
456.
When A.B. was in middle school, Hogan would drop off and
pick up A.B. from school. Hogan was listed as one of the
contacts to call in case of an emergency. Hogan frequently called
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and texted A.B. at school. At trial, A.B.’s science teacher
recalled that Hogan’s constant texting and calling disrupted A.B.
in school, leaving A.B. “agitated and upset.” Id. at 296, 298.
The science teacher also remembered that A.B. was repeatedly
called out of class to speak to Hogan on the phone in the front
office. The science teacher heard some of the messages that
Hogan left for A.B., “saying things that you don’t say to a
thirteen year old.” Id. at 301. In one message, Hogan said,
“[Y]ou’re my baby, I can’t live without you.” Id.
The school’s principal personally recalled that Hogan called the
school “[s]ometimes multiple times in a week[, s]ometimes
multiple times in a day.” Id. at 315. The principal recalled that
the volume of calls from Hogan to A.B. was unusually high and
that Hogan also sent her gifts to school. When A.B. was not at
school, Hogan would constantly call or text her while she was
with friends or relatives. A.B.’s aunt went through A.B.’s cell
phone and saw photographs from Hogan of girls wearing panties
and short tops. In each of the photos, the girl had a pierced belly
button, which A.B. said was something Hogan wanted her to get.
Id. at 269.
Bridgette, the mother of one of A.B.’s friends, recalled that it was
“kind of creepy” how often Hogan called A.B. Id. at 414. When
Bridgette told A.B. to turn off her phone, A.B. replied, “[N]o,
[Hogan] will get mad, I can’t.” Id. at 415. When Bridgette
discussed this with Hogan, he told her that A.B.’s father was the
“bad dad” and that Hogan was “the good dad” who was trying
“to keep [A.B.] on line.” Id. Bridgette testified that Hogan was
not a father figure, but, instead, “acted like a jealous boyfriend.”
Id.
Around Christmas 2012, when A.B. was thirteen, Hogan secretly
gave her a ring and told her it was her engagement ring. Id. at
182. In the spring of 2013, Hogan made A.B. stay over at his
house at least twice a week. Id. at 168. A.B. had to sleep in
Hogan’s bed, and he would make her perform oral sex on him.
Hogan would occasionally ejaculate on her and told A.B. that it
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would make her skin soft. Id. at 170. Hogan always told A.B.
that he was in love with her, and that she “had to have a baby
with him by the time she was seventeen.” Id. at 182. One night,
when A.B. was thirteen years old, Hogan woke her up. Id. at
170-71. A.B. realized that Hogan was about to abuse her again,
later explaining “after that happens for so long you just know.”
Id. at 171. Hogan disrobed and partially penetrated A.B.’s
vagina with his penis. Id. A.B. felt pain and screamed, and
Hogan rose and left the room. Id. C.H. was downstairs playing
a video game. Id. at 172. C.H. responded to A.B.’s scream,
asking what was wrong, but A.B. told C.H. that she had merely
stubbed her toe. Id.
A.B. recalled that she took pains to hide from C.H. what Hogan
was doing because Hogan was C.H.’s dad, and since Mother
“was not a very good mom,” A.B. said that she had “practically
raised [her] sister.” Id. at 172-73. A.B. did not tell Mother about
the abuse because she did not trust her. Id. at 174. Additionally,
A.B. was coerced into silence by Hogan’s threats, recalling that
“[Hogan] always told me that he would kill my dad, he would
send me back to Florida with my mom . . . .” Id. at 175. A.B.
was frightened for Father, later saying, “I love my dad with all
my heart. He’s the only person . . . if I didn’t have him I would
be in like foster care right now.” Id. at 176. A.B. was also afraid
of returning to Florida, saying, “[M]y mom was a really bad
mom. She was an abuser. She wasn’t a mom to me at all.” Id.
Hogan also promised A.B. that if she told anyone what he was
doing, “he would make it look like I did it, like it was my fault.”
Id. at 174-75.
A.B. eventually told her guidance counselor, explaining, “I was
just fed up with everything, I couldn’t take it anymore, I couldn’t
take him calling me so many times, I couldn’t take not being able
to live a life as a teenager.” Id. at 175. The guidance counselor
notified Child Protective Services, A.B.’s principal, and Father.
Id. at 277, 278. A.B. showed her guidance counselor
photographs on her cell phone that Hogan had sent her, one of
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which appeared to be an erect penis, covered by underwear.
Meanwhile, Hogan called the school, and the principal told
Hogan that he was no longer on A.B.’s contact list. Id. at 317.
Hogan then called A.B.’s cell phone. A police officer took the
call and told Hogan not to call again.
Detective Bridget Glaser of the Fort Wayne Police Department
interviewed Hogan and, later, retrieved Hogan’s cell phone from
his vehicle with Hogan’s consent. Hogan’s cell phone was in
four pieces – the “flip phone” itself was in two pieces and the
battery and SIM card had both been removed. Id. at 537.
Forensic examination of Hogan’s cell phone revealed that
approximately 4,000 images had been deleted from the phone’s
memory. Id. at 512.
Hogan was charged with four counts of Class A felony child
molesting, four counts of Class C felony child molesting, and one
count of Class D felony dissemination of matter harmful to
minors. The offenses were alleged to have occurred “[s]ometime
during the period of time between the 15th day of June, 2004 and
the 31st day of May, 2013.” Appellant’s App. at 15-23. A partial
log of A.B.’s text messages was introduced at Hogan’s trial. That
log revealed dozens of text messages sent from Hogan to A.B.
On May 11, 2013, Hogan had texted A.B. twenty-five times,
sending messages like, “Where is my pic,” “You have 2 min to
call me or i call your teacher,” and “Dumb ass.” State’s Ex. 7.
On May 25, 2013, Hogan texted A.B. thirty-six times within
seven minutes with the one-word message, “Hello.” Id. Another
message Hogan texted on this day was, “When you get ready for
bed i come get you:).” Id. On May 30, 2013, the day A.B.
reported the abuse, Hogan texted “See you in court” seven times
within eleven minutes. Id. The following day, Hogan texted
A.B. twice within five seconds, saying each time, “I called the
police on your dad.” Id. A search of Hogan’s residence,
pursuant to a warrant, uncovered a handcuff key. Tr. at 539.
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Hogan v. State, No. 02A05-1404-CR-179, slip op. at 2-9 (Ind. Ct. App. January
15, 2015), trans. denied. The jury convicted Hogan as charged. Id. at 9. The
court sentenced him to an aggregate sentence of 120 years. Id. at 10.
[3] On direct appeal, Hogan argued that his sentence was inappropriate and the
trial court’s application of the 2008 “credit restricted felon” designation to
Counts II, III, and IV violated the constitutional prohibition against ex post
facto laws. Id. at 2. We affirmed. Id.
[4] On October 25, 2017, Hogan filed a petition for post-conviction relief alleging
he received deficient assistance from trial counsel, and the State and its
investigators violated Brady v. Maryland and committed prosecutorial
misconduct. On June 29, 2018, and August 17, 2018, the court held evidentiary
hearings. Attorney Joshua Isaac Tourkow testified Hogan retained him to
work on the case involving the custody of C.H., there was a related proceeding
involving her half-sibling, A.B., he represented both of the fathers, Hogan was
reported as an alleged abuser, and the abuse was unsubstantiated. He also
testified he did not recall discussing the custody battle with Hogan’s trial
counsel.
[5] The court admitted a 2012 Department of Child Services (“DCS”) report as
Petitioner’s Exhibit B. The report stated in part that DCS received a
notification on July 23, 2012, of safety concerns regarding A.B. involving a
witness observing Hogan grabbing A.B. “all over as in the groin and breast
area.” Petitioner’s Exhibit B. The report also stated A.B. was interviewed by
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Supervisor Andrea Goebel at the Center for Children on July 26, 2012,
Supervisor Goebel asked her why she believed she was brought to the Center to
be interviewed, A.B. stated “[b]ecause they think that my dad, Sean touched me
sexually,” and “[A.B.] denied that her stepfather had ever tongue kissed her,
touched her groin area or her breasts” and “stated that no one has ever touched
her inappropriately and stated that she feels safe around her dad, [A.] and her
dad Sean.” Id. The report concluded that the allegation was unsubstantiated.
[6] Attorney Samuel Bolinger testified he represented Hogan at trial, there was a
plea offer by the State of forty years, and he advised Hogan that, after reviewing
the evidentiary package, there was a substantial risk to him to go forward with
trial and he could face a “very, very lengthy jail time.” Post-Conviction
Transcript Volume II at 36. He testified that he conducted a telephonic
deposition of C.H. who was in Florida, he moved to admit the deposition at
trial, and the trial court denied the motion. When asked why he thought C.H.
would have been a favorable witness, he answered: “She may have attested that
the allegations that A.B. made never occurred. But at the same time she was
never notified of those, what I’ll call contacts, or allegations, so when asked
point blank in her deposition, she simply responded as I read down the list of
allegations that that’s how she responded.” Id. at 42.
[7] Hogan’s counsel introduced and the court admitted a transcript of C.H.’s
deposition as Petitioner’s Exhibit G. In her deposition, C.H. indicated she did
not observe Hogan touch A.B. on her buttocks, breasts, or vagina. C.H. also
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stated that A.B. slept in Hogan’s bed, and that she, C.H., slept on the floor
when A.B. would sleep in the bed with Hogan.
[8] The court admitted a taped interview of C.H. as Petitioner’s Exhibit L. During
the interview, C.H. stated A.B. visited her, A.B. had her own room but she
slept on the couch a lot, A.B. sometimes slept in Hogan’s room, and they slept
on the floor or on the bed when they slept in Hogan’s room. When asked if
there were ever times A.B. slept in Hogan’s room without her, she answered in
the negative. She indicated there were times when A.B. slept in the bed with
Hogan but she, C.H., would get in the middle.
[9] Hogan testified that his trial counsel visited him in jail four times, he did not
know where his daughter, C.H., was once he was arrested, and he wanted his
trial counsel to use C.H. as a witness because “whenever . . . A.B. would come
over and wherever A.B. went C.H. was there, no matter what.” Post-
Conviction Transcript Volume II at 94. He testified he never had a pair of
handcuffs and “would never own a pair let alone put a pair on somebody.” Id.
at 95.
[10] On April 8, 2019, the court denied Hogan’s petition. The court’s order
provides:
FINDINGS OF FACT
*****
6. A.B. briefly testified at trial about “the custody battle.” Tr.
166. In a discussion at the bench outside the hearing of the jury,
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the Court later ruled that “[d]elving into the nature of the custody
fight is irrelevant.”[ 1] Tr. 384. Nevertheless, at the post-
conviction hearing, the Court allowed Petitioner to present
testimony about the custody dispute from Attorney Joshua
Tourkow, who represented both Petitioner and A.B.’s father in
successfully obtaining custody of C.H. and A.B., respectively.
Attorney Tourkow mentioned that there had been allegations of
abuse, but did not suggest that A.B. could have fabricated or
repeated such allegations in an effort to influence the outcome of
the custody dispute. In regard to the possibility that A.B. might
have had a motive to do so, it is relevant that A.B. testified at
trial that she had been induced to deny the abuse by Petitioner’s
threats, the “big one” of which was that “he would send me back
to Florida with my mom[.]” Tr. 175. A.B. explained that this
was such a big threat “[b]ecause my mom was a really bad mom.
She was an abuser. She wasn’t a mom to me at all.” Tr. 176. As
to her father, in contrast, she testified that “I love my dad with all
my heart.” Id.
7. A.B. testified at trial that “in the summer that they got custody
of me, which was 2012, there was allegations made against Sean
and I denied everything[.]” Tr. 174. A report dated September
5, 2012, of an investigation of alleged child abuse or neglect by
the Indiana Department of Child Services (DCS), indicated that
A.B. did, in fact “den[y] everything.” Specifically, the report
stated that “[A.B.] denied that her stepfather [Mr. Hogan] had
ever tongue kissed her, touched her groin area or her breasts.
[A.B.] stated that no one has ever touched her inappropriately
and stated that she feels safe around her dad, Alan and her dad
[sic] Sean [Hogan].” Petitioner’s Exhibit B. Attorney Bolinger
did not cross-examine A.B. about her admitted denial of
“everything.” A.B. also testified at trial that, before she disclosed
the abuse to her counselor, her counselor had previously asked
1
Most of the bracketed text appears in the post-conviction court’s order.
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her “if he [Petitioner] had ever done anything to me”; A.B.
“denied it” and said “I don’t know what you’re talking about.”
Tr. 175. She explained that she denied it because “[h]e made so
many threats to me, and I was scared”; she went on to elaborate
at some length about the threats. Tr. 175-176.
8. Attorney Bolinger did not subpoena C.H. to testify at trial,
and unsuccessfully ordered a telephonic deposition of C.H. in
lieu of live testimony. In her deposition (Petitioner’s Exhibit G),
C.H. testified [that she did not see Hogan touch A.B. on her
buttocks, breasts, or vagina, answered affirmatively when asked if
A.B. ever slept in Hogan’s bed, and that she, C.H., slept on
Hogan’s floor while Hogan slept in bed with A.B.]. In a recorded
statement, C.H. had stated that she sometimes did sleep in the
bed with A.H. and Petitioner, but she (C.H.) always slept in the
middle.
9. In a letter dated November 1, 2013, Attorney Bolinger
recommended that Petitioner accept a plea agreement. The
reasons for Attorney Bolinger’s recommendation were basically
that the evidence against Petitioner was quite strong, the risk of
going forward was great, Petitioner was potentially facing over
140 years in prison, and the plea agreement would provide for a
sentence of 40 years. Petitioner’s Exhibit F, at 1-2. Petitioner
claimed that he was innocent and declined to accept the State’s
plea offer.
*****
11. Petitioner denied that any of the charged offenses had
occurred. Tr. 564-588. A.B. was like a daughter to him, he said,
and he disciplined her. Tr. 564, 567. She programmed his
phone, and he made repeated calls to make sure she was where
she was telling him she was. Tr. 569. He called her school often
because, he said, she was missing a lot of time. Tr. 571. He also
texted her a lot to verify that she wasn’t getting in trouble [Tr.
577]; he said she kept getting into fights at school, 12 to 14 of
them [Tr. 600]. He sent her one or three pictures of girls with
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belly rings in order to instruct her that she was not to get one,
although her dad had said she could. Tr. 586 (one picture), 598
(three pictures). He grounded her [id.]; he said she got annoyed
and angry when he disciplined her [Tr. 568], and in the spring of
2013 she got mad because she went to a friend’s house where she
was not allowed to go [Tr. 588]. She cried a lot, Petitioner said,
and she was a “drama queen.” Tr. 588. He did not know
whether he had texted her saying that he “felt like shit,” “like a
used dirty tampon,” and he felt “used and lied to.” Tr. 605. He
did not recall having texted her saying that he felt “worthless and
like a shitty sucker taken advantage of all the time, lies and love,
too much hurt, in pain, too much hope she would do that again,
too stupid to know the truth, the sucker.” Tr. 605-606. He knew
nothing about a text, apparently sent by him to A.B., saying
“when you get ready for bed, I come get you.” Tr. 606-607.
Finally, he acknowledged that he had told Detective Bridget
Glaser that “you need to go check him [A.B.’s father] out
because he’s the one that’s obsessed with her. He wants to tattoo
himself . . . all the way down to his butt with her.” Tr. 608-609.
Witness Amy Jacobowitz testified that Petitioner’s response to
the allegations against him was as follows: “When I told him
that, you know, he was going to be on administrative leave [from
work as a result of the investigation of the allegations], he just
looked at me and said, I didn’t do anything, she just . . . [A.B.] is
just mad at me for grounding her.” Tr. 438.
12. Guidance counselor Anita Nevils, when asked at trial
whether A.B. had attendance problems or was skipping school,
said, “No. None what so ever.” Tr. 271. She also testified that
A.B. was not “in a lot of trouble with fights or things at school”
[Tr. 271-271] and that it was not common for parents to call their
children at school to see where they were [Tr. 286]. Science
teacher Debra Calvin testified that A.B. was a very good, bright
student, who did not have excessive absences from her science
class and did not have disciplinary problems or fights. Tr. 294-
295. School Principal Matt Schiebel, though he acknowledged
that he did not “monitor all 900 of our kids,” likewise testified
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that A.B. was not getting into fights or having disciplinary
problems at school, and he did not recall A.B. having an extreme
attendance problem. Tr. 315. He also testified that he heard a
voice mail message from A.B.’s phone from a person who
appeared to be Petitioner, containing “a lot of love of my life type
of comments that to me just seemed not appropriate for a
student.” Tr. 318. A.B.’s best friend [H.] testified that A.B. told
her “once in third grade he [Petitioner] molested me” and that
A.B. “begged me not to tell anyone, so I didn’t.” Tr. 404. A.B.’s
friend [B.] testified that Petitioner sometimes touched A.B. on
her butt [Tr. 421], and that once A.B. said to her, “Oh my God,
Sean [Petitioner] just sent me a picture” which, [B.] observed,
showed a naked lady with her breasts visible [Tr. 424].
CONCLUSIONS OF LAW
*****
3. Had Attorney Bolinger done everything that Petitioner wishes
he had done, the events of the original proceeding might have
been different in the following ways. Additional evidence
regarding the custody dispute might have been admitted, had the
Court somehow been induced to change its ruling that “[d]elving
into the nature of the custody fight is irrelevant” [Findings of
Fact, ¶ 6]. The 2012 DCS report (Petitioner’s Exhibit B) might
have been offered to corroborate A.B.’s acknowledgment that she
“denied everything” in 2012 [id., ¶ 7]. C.H. might have given
testimony consistent with her earlier statements [id. ¶ 8].
Attorney Bolinger might have refrained from recommending that
Petitioner accept the State’s plea offer [id., ¶ 9]. . . . For the
following reasons, Petitioner has not shown a reasonable
probability that the outcome of the original proceeding would
have been different even if all these things had occurred.
4. Petitioner asserts that evidence regarding the custody dispute
was “crucial to [his] defense” [Petitioner’s Brief, at 7], but he
appears to give no hint as to why this is supposed to be so.
Hypothetically, evidence regarding a custody dispute might be
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relevant if it tended to show that an alleged child victim had
fabricated or repeated allegations of abuse in hope of influencing
the outcome of the custody dispute, so as to reside with the
parent preferred by the alleged victim. In the present case,
however, A.B.’s testimony indicated that she strongly preferred
her father (who, like Petitioner, lived in Fort Wayne) over her
mother (who lived in Florida) [Findings of Fact, ¶ 6].
Allegations that Petitioner had abused her would have had no
tendency to influence the dispute in favor of allowing her to
reside with her father rather than her mother, and indeed might
have had the opposite tendency – inasmuch as her father, living
in the same city as Petitioner and regarding him as a trusted
friend [id., ¶ 5], had failed to prevent the alleged abuse. No
evidence would suggest that A.B. was lying about which parent
she preferred. For these reasons, evidence regarding the custody
dispute would have done nothing to cast doubt upon the
credibility of A.B.’s extremely detailed account, nor to affect the
outcome of the original proceeding in any way.
5. Counsel will not be found ineffective for failing to present
cumulative evidence. Chupp v. State, 509 N.E.2d 835, 839 (Ind.
1987). A.B. admitted at trial that, in 2012, she “denied
everything” regarding allegations that Petitioner had abused her
[Findings of Fact, ¶ 7]. The 2012 DCS report [Petitioner’s
Exhibit B] would simply have shown the same thing, that she
“denied everything,” and therefore would have been merely
cumulative. Furthermore, her explanation of why she also
denied any abuse by Petitioner when questioned by her counselor
– i.e., that Petitioner had made many threats to her and she was
scared [Findings of Fact, ¶ 7] – would have applied equally well
to her denial of any abuse in the 2012 DCS investigation.
Petitioner has made no showing that Attorney Bolinger could
have done anything to increase the credibility of A.B.’s
acknowledged denial of abuse in 2012, nor to decrease the
credibility of her account at trial by further comparison with her
denial in 2012. The 2012 DCS report, if presented at trial, would
have done nothing to affect the outcome.
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6. C.H.’s deposition established that C.H. did not remember
having observed anything relevant to Petitioner’s case [Findings
of Fact, ¶ 8]. Had C.H. given the same testimony at trial, any
effect of such testimony upon the outcome could only have
arisen from an inference that events not remembered by C.H. did
not occur because she would have observed and remembered
them had they occurred. No evidence, at trial or in this post-
conviction proceeding, suggested that any of the charged offenses
were alleged to have occurred on any occasion when C.H. could
have observed that they were occurring. Indeed, as noted by the
Court of Appeals, A.B. took pains to prevent C.H. from finding
out about the abuse [id., ¶ 5].
7. A.B.’s testimony does include two specific mentions of fairly
striking events, at least tangentially relevant, that C.H. might
arguably have been expected to remember if she had observed
them. One is the incident in which, A.B. testified, Petitioner
poured hot water on her while she was sleeping in C.H.’s room;
the other is the incident in which, A.B. testified, she screamed
when Petitioner was beginning to engage in sexual intercourse
with her, and soon afterward she told C.H. that she had merely
stubbed her toe [Findings of Fact, ¶ 5]. Had C.H.’s testimony
that she did not remember these incidents been presented at trial,
the jury conceivably might have found that C.H. did not observe
these events and therefore they might not have happened as
related by A.B. On the other hand, the jury might simply have
found that the memory of C.H. (who remembered nothing
relevant) was not nearly as good as that of A.B. (who testified
about her detailed memory of a very large number of events).
For the following reasons, in view of the evidence presented at
trial as a whole, there is no reasonable probability that C.H.’s
testimony would have affected the outcome if presented at trial.
8. Like A.B. at the time of the 2012 DCS investigation,
Petitioner “denied everything” at trial as to alleged abuse of A.B.
– but he did not stop there. His testimony [Findings of Fact, ¶
11] suggested possible exculpatory explanations (and sometimes
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a remarkable lack of memory) regarding his own actual or
apparent conduct, as well as a possible motive for A.B. to testify
falsely, and a possible alternate perpetrator of the alleged abuse.
Interpreting Petitioner’s testimony in such a way as to emphasize
the portions with maximum purported exculpatory significance,
one might fairly summarize that testimony and its implications as
follows. Petitioner was simply acting like a concerned parent, in
lieu of A.B.’s father who failed to do so. A.B. needed intensive
supervisions, and Petitioner provided it by intensive calling and
texting, as well as illustrating what she was not to do. A.B.
became highly displeased when Petitioner disciplined her. Being
a “drama queen”, A.B. retaliated for the discipline by going all
out to discredit Petitioner and put him in prison for a very long
time, by fabricating an extremely detailed account of abuse
occurring over many years. Being also a skillful phone-
programmer, perhaps she altered the content of his text messages
to make it falsely appear that he had used language such as
“shitty sucker,” “used and dirty tampon,” “Where is my pic,”
“Dumb ass,” “When you get ready for bed [I] come and get
you,” and so on, which would appear to be inconsistent with
rational parental or pseudo-parental discipline. (Petitioner did
not suggest any explanation, however, for the voice mail
messages containing expressions such as “love of my life,”
“You’re my baby, I can’t live without you,” and the like.)
Because her real father did not discipline her, in contrast, A.B.
was willing to overlook her father’s obsession with her; indeed,
perhaps she did not invent her account of Petitioner’s abuse, but
simply alleged that Petitioner had done what her father had really
done, all because of her vindictive outrage at Petitioner for
disciplining her.
9. Petitioner claims his case was a “he said, she said” case, and
“essentially a credibility contest between Hogan and A.B.”
Petitioner’s Brief, at 6. What “he said” was basically that (1)
A.B. was lying about everything because she was displeased
about being disciplined, (2) Petitioner did not know whether he
had sent objectionable texts to her or not, and (3) A.B.’s father,
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not Petitioner, was obsessed with A.B. In order to find that
Petitioner’s testimony created a reasonable doubt as to his guilt,
the jury would have had to reach one of two remarkable and
highly improbable conclusions. Either the “drama queen” A.B.
might have displayed exceptional creativity and skill in
fabricating her entire account and forging objectionable text
messages to be attributed to Petitioner or else A.B. might not
have fabricated her account in its entirety, but simply substituted
Petitioner for her father as the perpetrator – and forged
objectionable text messages to be attributed to Petitioner.
10. Furthermore, any minimal credibility that what “he said”
might have had, when considered simply in contrast to what “she
said,” would have been entirely destroyed by other evidence,
even if C.H. had testified at trial. Petitioner’s explanation of why
he called and texted A.B. at school so often – that he needed to
supervise her closely because she was “missing a lot of time”
from school and getting into many fights – was contradicted by
A.B.’s guidance counselor, her science teacher, and her school
principal [Findings of Fact, ¶ 12]. This conduct on Petitioner’s
part was not common, even for a real parent [id.]. Petitioner had
no explanation or denial of calling A.B. about 35 times a day,
texting her all day long, and sending frequent messages to her
Facebook page while she was in Florida, as reported by A.B.’s
mother [id., ¶ 5]. Another real parent, [H.’s] mother Bridgette
[id.], found Petitioner’s constant calling (while A.B. was not at
school) to be “creepy” and observed that Petitioner acted like a
jealous boyfriend, not a father figure. Petitioner did not explain,
and could not well have denied, his voice mail messages
containing expressions such as “love of my life” [id. ¶ 12] and
“You’re my baby, I can’t live without you” [id., ¶ 5]. The
evidence of Petitioner’s text messages, containing additional
unsuitable expressions, was not really called into question by
anything other than Petitioner’s baseless suggestions and his
claimed lack of memory [id., ¶ 11]. No evidence cast doubt upon
A.B.’s prior consistent statement that Petitioner had molested
her, as reported by her friend [H.], nor upon her friend [B.’s]
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personal observations of improper touching and her report that
A.B. immediately identified Petitioner as the sender of the
indecent picture seen by [B.] [id., ¶ 12]. In short, the great weight
of evidence, other than what “he said” or “she said,” was
strongly consistent with what “she said.” That evidence
established that Petitioner was a fake father figure, obsessed with
A.B. in a manner entirely consistent with A.B.’s allegations.
11. For the reasons stated above, C.H.’s testimony would have
had little or no tendency to affect the outcome if presented at
trial. The jury would most likely have found that A.B.’s memory
was simply much better than that of C.H., explaining why A.B.
remembered the events in question and C.H. did not. Even if
C.H.’s testimony had cast doubt upon the two parts of A.B.’s
testimony specified above [Conclusions of Law, ¶ 7], those parts
were minor and tangential in relation to A.B.’s entire account.
There is no reasonable probability that the jury would have
concluded that the two specified events did not occur as narrated
by A.B. – and, even if the jury had somehow drawn that unlikely
conclusion, there is no reasonable probability that the jury would
have concluded that A.B. was lying about Petitioner’s
commission of the charged offenses.
12. Indiana law does not allow a judge to accept a plea of guilty
when the defendant both pleads guilty and maintains his
innocence at the same time, but does allow a judge to accept a
plea of guilty from a defendant who maintained his innocence at
a previous time, even very shortly before the defendant ultimately
entered the guilty plea. See Frazier v. State, 490 N.E.2d 315 (Ind.
1986); Bland v. State, 708 N.E.2d 880 (Ind. Ct. App. 1999).
Attorney Bolinger did not recommend that Petitioner should try
to plead guilty while maintaining his innocence at the same time,
but did suggest that Petitioner should change his mind about
whether to continue to maintain his innocence in view of the
strength of the evidence against him, the risk going forward, and
the benefit available through acceptance of the plea agreement
[Findings of Fact, ¶ 9]. In any event, as Petitioner did not accept
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the State’s plea offer, Attorney Bolinger’s recommendation that
he accept the offer ascertainably had no effect on the outcome of
the original proceeding, and therefore resulted in no prejudice to
Petitioner’s defense.
13. A claim of prosecutorial misconduct requires a
determination (1) that there was misconduct by the prosecutor,
and (2) that it had a probable persuasive effect on the jury’s
decision. Cox v. State, 696 N.E.2d 853, 859 (Ind. 1998)[, reh’g
denied]. Petitioner alleges that the State engaged in misconduct
by failing to disclose the 2012 DCS report and failing to establish
a proper chain of custody for Petitioner’s handcuff key. Neither
instance of alleged misconduct had any probable persuasive effect
on the jury’s decision. Had the 2012 DCS report been
unquestionably disclosed and had it been used at trial, it would
have been merely cumulative of A.B.’s own acknowledgment
that she “denied everything” in 2012 [Findings of Fact, ¶ 7]. The
jury would not have been persuaded to disbelieve A.B.’s account
of the charged offenses by documentary evidence indicating that
A.B. was telling the truth at trial when she said she “denied
everything” in 2012. . . . Because a claim of prosecutorial
misconduct would have had no merit, Attorney Bolinger cannot
be found ineffective for failing to raise such a claim. Vaughn v.
State, 559 N.E.2d 610, 615 (Ind. 1990) (counsel will not be
deemed ineffective for failing to present a meritless claim).
14. As may be seen above, the probability that Attorney
Bolinger’s various claimed errors affected the outcome of
Petitioner’s trial is as follows: custody dispute, none
[Conclusions of Law, ¶ 4]; 2012 DCS report, none [id., ¶ 5];
C.H.’s testimony, little or none [id., ¶¶ 6-11]; plea agreement,
none [id., ¶ 12]; prosecutorial misconduct, none [id., ¶ 13].
Taken together, the effect of the claimed errors falls far short of
amounting to a reasonable probability of a different outcome,
sufficient to undermine confidence in the outcome of Petitioner’s
trial. Attorney Bolinger therefore cannot be found ineffective,
and Petitioner is not entitled to post-conviction relief.
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Appellant’s Appendix Volume II at 119-136.
Discussion
[11] The petitioner in a post-conviction proceeding bears the burden of establishing
grounds for relief by a preponderance of the evidence. Fisher v. State, 810
N.E.2d 674, 679 (Ind. 2004); Ind. Post-Conviction Rule 1(5). When appealing
from the denial of post-conviction relief, the petitioner stands in the position of
one appealing from a negative judgment. Fisher, 810 N.E.2d at 679. On
review, we will not reverse the judgment unless the evidence as a whole
unerringly and unmistakably leads to a conclusion opposite that reached by the
post-conviction court. Id. “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.” Id. In this review,
we accept findings of fact unless clearly erroneous, but we accord no deference
to conclusions of law. Id. The post-conviction court is the sole judge of the
weight of the evidence and the credibility of witnesses. Id.
[12] To prevail on a claim of ineffective assistance of counsel a petitioner must
demonstrate both that his counsel’s performance was deficient and that the
petitioner was prejudiced by the deficient performance. French v. State, 778
N.E.2d 816, 824 (Ind. 2002) (citing Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052 (1984), reh’g denied). A counsel’s performance is deficient if it falls
below an objective standard of reasonableness based on prevailing professional
norms. Id. To meet the appropriate test for prejudice, the petitioner must show
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that there is 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.
Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001). Failure to satisfy either prong
will cause the claim to fail. French, 778 N.E.2d at 824. Most ineffective
assistance of counsel claims can be resolved by a prejudice inquiry alone. Id.
[13] When considering a claim of ineffective assistance of counsel, a “strong
presumption arises that counsel rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.”
Morgan v. State, 755 N.E.2d 1070, 1072 (Ind. 2001). “[C]ounsel’s performance
is presumed effective, and a defendant must offer strong and convincing
evidence to overcome this presumption.” Williams v. State, 771 N.E.2d 70, 73
(Ind. 2002). Evidence of isolated poor strategy, inexperience, or bad tactics will
not support a claim of ineffective assistance of counsel. Clark v. State, 668
N.E.2d 1206, 1211 (Ind. 1996), reh’g denied, cert. denied, 520 U.S. 1171, 117 S.
Ct. 1438 (1997). “Reasonable strategy is not subject to judicial second
guesses.” Burr v. State, 492 N.E.2d 306, 309 (Ind. 1986). We “will not lightly
speculate as to what may or may not have been an advantageous trial strategy
as counsel should be given deference in choosing a trial strategy which, at the
time and under the circumstances, seems best.” Whitener v. State, 696 N.E.2d
40, 42 (Ind. 1998).
[14] Hogan argues that he received ineffective assistance of trial counsel because his
counsel attempted to convince him to take a plea agreement despite knowing he
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maintained his innocence, failed to obtain and utilize the 2012 DCS report,
failed to subpoena C.H. to testify at trial or present her taped statement, and
failed to utilize evidence regarding the custody battle as a circumstance leading
to the criminal charges against him.
A. Guilty Plea
[15] The United States Supreme Court has 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.”
Missouri v. Frye, 566 U.S. 134, 145, 132 S. Ct. 1399, 1408 (2012). Hogan’s trial
counsel testified there was a plea offer by the State of forty years and he advised
Hogan that, after reviewing the evidentiary package, there was a substantial risk
to him to go forward with trial and he could face a “very, very lengthy jail
time.” Post-Conviction Transcript Volume II at 36. Hogan did not accept the
plea agreement. We cannot say Hogan demonstrated his trial counsel’s
performance was deficient or he was prejudiced.
B. DCS Report
[16] Hogan asserts the 2012 DCS report indicates A.B. denied being molested by
him. The 2012 DCS report contained an allegation that Hogan grabbed A.B. in
the groin and breast area and that A.B. denied the allegation. As pointed out
by the post-conviction court, A.B. testified at trial that there were allegations
against Hogan in 2012, stated that she initially denied everything, and described
telling her counselor what happened because she could not “take this
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anymore.” Trial Transcript Volume I at 175. When asked why she initially
denied the allegations against Hogan, she answered:
He made so many threats to me, and I was scared. I don’t know.
He always told me that he would kill my dad, he would send me
back to Florida with my mom, that’s the big one. He would end
[sic] me back to Florida with my mom or he would always make
it, if I ever did tell he would make it look like I did it, like it was
my fault.
Id. at 175-176. She also testified that her mother was a “really bad mom” and
“an abuser” and she loved her father “with all [her] heart.” Id. at 176.
[17] During the post-conviction hearing, the following exchange occurred during the
direct examination of Hogan’s trial counsel:
Q Okay, and in fact you had seen [the 2012 DCS report], is that
something that you should have used?
A I don’t think it would have changed the course of the battle
plan.
Q The fact that the same complaining witness previously was
interviewed and said nothing happened to her?
A I would still stick with that line. She also attested, if my
memory serves correctly that for many years while the conduct
ensued prior to the DCS investigation –
Post-Conviction Transcript Volume II at 52. Hogan’s trial counsel also stated
that A.B. “also attested that during, when she was three until she turned
thirteen she denied all of the conduct until she broke down at school . . . .” Id.
at 53. Under the circumstances, we cannot say reversal is warranted on this
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basis. See Chupp v. State, 509 N.E.2d 835, 838-839 (Ind. 1987) (defense
counsel’s failure to present exculpatory statement by victim not ineffective
assistance where victim made same statement in court under oath); Williams v.
State, 508 N.E.2d 1264, 1268 (Ind. 1987) (“counsel’s failure to present
exculpatory evidence may not constitute ineffective assistance where that
evidence is introduced to the jury through other witnesses”).
[18] To the extent Hogan asserts that the State’s failure to include the 2012 DCS
report was a violation of Brady v. Maryland, 373 U.S. 83 (1963), and violated
his right to due process, we observe under Brady that the State has an
affirmative duty to disclose material evidence favorable to the defendant. State
v. Hollin, 970 N.E.2d 147, 153 (Ind. 2012). “To prevail on a Brady claim, a
defendant must establish: (1) that the prosecution suppressed evidence; (2) that
the evidence was favorable to the defense; and (3) that the evidence was
material to an issue at trial.” Id. (quoting Minnick v. State, 698 N.E.2d 745,
755 (Ind. 1998) (citing Brady, 373 U.S. at 87, 83 S. Ct. 1194), reh’g denied, cert.
denied, 528 U.S. 1006, 120 S. Ct. 501 (1999)). Evidence is material when there
is a reasonable probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different. Id. The State will not
be found to have suppressed material information if that information was
available to a defendant through the exercise of reasonable diligence.
Stephenson v. State, 864 N.E.2d 1022, 1057 (Ind. 2007), reh’g denied, cert.
denied, 552 U.S. 1314, 128 S. Ct. 1871 (2008). As mentioned above, the 2012
DCS report, which contained an allegation that Hogan grabbed A.B. in the
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groin and breast area, indicated that A.B. denied the allegation. The record
contained cumulative evidence including A.B.’s testimony that there were
allegations against Hogan in 2012 and that she initially denied everything.
Further, the record reveals Hogan’s trial counsel was aware of the DCS
investigation into Hogan. We again cannot say reversal is warranted on this
basis.
C. C.H.’s Testimony
[19] Hogan argues that his trial counsel was ineffective for failing to subpoena C.H.
or present her taped statement. He notes that C.H. stated in her telephonic
deposition that she claimed she would sleep on the floor while A.B. and Hogan
were in the bed and this contradicted her taped statement in which she stated
that A.B. did sometimes sleep in the bed with Hogan but she, C.H., would
always sleep in the middle. He contends, “[h]ad C.H. been called to testify at
trial, she could have clarified this inconsistency and repeated the exculpatory
evidence contained in both statements.” Appellant’s Brief at 20.
[20] Generally, deciding which witnesses to call is the “epitome of a strategic
decision,” Wrinkles v. State, 749 N.E.2d 1179, 1200 (Ind. 2001), cert. denied, 535
U.S. 1019, 122 S. Ct. 1610 (2002), and such decisions are insufficient to
establish ineffective representation. See Kelly v. State, 452 N.E.2d 907, 910 (Ind.
1983). “When ineffective assistance of counsel is alleged and premised on the
attorney’s failure to present witnesses, it is incumbent upon the petitioner to
offer evidence as to who the witnesses were and what their testimony would
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have been.” Lee v. State, 694 N.E.2d 719, 722 (Ind. 1998) (quoting Lowery v.
State, 640 N.E.2d 1031, 1047 (Ind. 1994) (citing Wallace v. State, 553 N.E.2d 456
(Ind. 1990), cert. denied, 500 U.S. 948, 111 S. Ct. 2250 (1991)), cert. denied, 516
U.S. 992, 116 S. Ct. 525 (1995)), cert. denied, 525 U.S. 1023, 119 S. Ct. 554
(1998).
[21] At trial, A.B. testified that she would sleep in Hogan’s bed when she spent the
night at his residence and C.H. would sometimes sleep in his bed and
sometimes she would sleep in her room when Hogan kicked her out of the
room. S.P. testified that she was A.B.’s friend, she spent thirty or forty nights at
Hogan’s residence, and she slept with A.B. and Hogan in his bed. B.S. testified
that she was A.B.’s friend, she spent the night at Hogan’s residence with A.B.,
she slept on the couch, in a bed next to Hogan’s room, or in the bed, sometimes
A.B. would sleep with her, and sometimes she would wake up and A.B. would
be gone.
[22] While Hogan’s trial counsel indicated a belief that C.H. would have been a
witness favorable to Hogan, when asked to explain, he answered: “She may
have attested that the allegations that A.B. made never occurred. But at the
same time she was never notified of those, what I’ll call contacts, or allegations,
so when asked point blank in her deposition, she simply responded as I read
down the list of allegations that that’s how she responded.” Post-Conviction
Transcript Volume II at 42. When asked if he remembered whether there was
any effort to subpoena C.H. for trial, he answered that he did not recall.
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[23] We observe that Hogan did not present C.H.’s testimony at the post-conviction
hearing. 2 We cannot say that Hogan’s assertion that C.H. could have clarified
the inconsistency between her telephonic deposition and her recorded statement
demonstrates prejudice. During the taped interview, C.H. stated A.B. visited
her, A.B. had her own room but slept on the couch a lot, A.B. sometimes slept
in Hogan’s room, and they slept on the floor or on the bed when they slept in
Hogan’s room. When asked if there were ever times when A.B. slept in
Hogan’s room without her, she answered in the negative. She indicated there
were times when A.B. slept in the bed with Hogan but she, C.H., would get in
the middle. We cannot say the evidence as a whole unerringly and
unmistakably leads to a conclusion opposite that reached by the post-conviction
court.
D. Custody Battle
[24] With respect to trial counsel’s failure to investigate, Hogan asserts that the
circumstances included his involvement in a bitter custody battle with Mother
over C.H., the custody battle also involved A.B.’s biological father, and both
men employed Attorney Tourkow who successfully fought for Hogan and
A.B.’s biological father to have custody of their respective daughters. He argues
2
At the hearing, Hogan’s counsel asserted that C.H. was currently residing in Florida “so we can’t even get a
subpoena because we’re not a party to the Uniform Interstate Depositions and Discovery Act, so even if we
asked the Court to issue a subpoena it wouldn’t do any good because we wouldn’t be able to enforce it.”
Post-Conviction Transcript Volume II at 75. On appeal, Hogan does not develop an argument under the
Uniform Interstate Depositions and Discovery Act.
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that A.B.’s father stated to DCS in 2012 that Hogan had always been a great
caregiver to A.B. and A.B.’s father told DCS that he believed somebody made
up the false allegations because they were mad that he obtained full custody of
A.B.
[25] At trial, A.B.’s father testified that he had been friends with Hogan, he helped
Hogan obtain a job, and he allowed A.B. to spend time with Hogan and C.H.
because he “thought he always would take care of her and be there for her.”
Trial Transcript Volume II at 456. On cross-examination, A.B.’s father testified
that he knew Hogan for thirteen years before the allegations and felt safe and
secure during that period and trusted Hogan with A.B. Further, A.B. referred
to the “custody battle” at trial. Trial Transcript Volume I at 166.
[26] During the post-conviction hearing, Hogan’s post-conviction counsel
mentioned the custody battle during direct examination of Hogan’s trial
counsel. When asked if the State opens the door to be able to make arguments
when a State’s witness brings up a custody battle, Hogan’s trial counsel stated:
“Can, and sometimes when you make those arguments, it blows up in your
face.” Post-Conviction Transcript Volume II at 54. In light of the custody
battle referenced at trial, the testimony of A.B.’s father, and the testimony of
Hogan’s trial counsel regarding the decision not to further discuss the custody
battle, we cannot say that the evidence as a whole unerringly and unmistakably
leads to a conclusion opposite that reached by the post-conviction court.
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[27] For the foregoing reasons, we affirm the denial of Hogan’s petition for post-
conviction relief.
[28] Affirmed.
Baker, J., and Riley, J., concur.
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