FILED
Mar 06 2020, 8:52 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Chad A. Montgomery Curtis T. Hill, Jr.
Montgomery Law Office, LLC Attorney General of Indiana
Lafayette, Indiana Tiffany A. McCoy
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Aaron B. Hoskins, March 6, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2387
v. Appeal from the Warren Circuit
Court
State of Indiana, The Honorable Hunter J. Reece,
Appellee-Plaintiff. Judge
Trial Court Cause Nos.
86C01-1606-F6-21
86C01-1704-CM-39
86C01-1909-F6-79
Mathias, Judge.
[1] Aaron B. Hoskins (“Hoskins”) appeals his conviction for Level 6 felony
unlawful possession of a syringe in Cause No. 86C01-1909-F6-79 (“Cause No.
F6-79”) and the revocation of his probation in Cause Nos. 86C01-1606-F6-21
(“Cause No. F6-21”) and 86C01-1704-CM-39 (“Cause No. CM-39”). On
Court of Appeals of Indiana | Opinion 19A-CR-2387 | March 6, 2020 Page 1 of 8
appeal, Hoskins argues that he did not knowingly and intelligently waive his
right to counsel. Because Hoskins pleaded guilty, his claim cannot be raised on
direct appeal and instead must be presented in a petition for post-conviction
relief. We therefore dismiss Hoskins’s appeal.
Facts and Procedural History
[2] On June 2, 2016, the State charged Hoskins in Cause No. F6-21 with Level 6
felony failure to return to lawful detention. On April 5, 2017, the State charged
Hoskins in Cause No. CM-39 with Class B misdemeanor criminal mischief.
Hoskins pleaded guilty in both of these causes on October 25, 2018, and was
sentenced to 180 days of home detention and 719 days of probation.
[3] On August 21, 2019, the State filed a petition to revoke Hoskins’s probation in
the above causes, alleging that he had submitted a urine sample that tested
positive for methamphetamine and amphetamine. The State filed an amended
petition to revoke on September 12, 2019, alleging that Hoskins had been found
in possession of a syringe and an alcoholic beverage and also had failed to
report to probation as required. Then, on September 20, 2019, the State charged
Hoskins with Level 6 felony unlawful possession of a syringe in Cause No. F6-
79.
[4] The trial court held an initial hearing in all of the above causes on September
23, 2019. At this hearing, Hoskins stated that he was not under the influence of
alcohol or any other drugs, that he spoke and understood the English language,
and that he had graduated from high school. He also confirmed that he had
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read, signed, and understood the advisement of rights form given to him and
that he understood the possible penalties he was facing. The trial court then
advised Hoskins of his constitutional rights, including the right to a speedy and
public trial by jury, the presumption of innocence and the burden of the State to
prove his guilt beyond a reasonable doubt, the right to confront witnesses
against him, the right to procure witnesses on his behalf, the right to remain
silent, and the right to testify. The trial court also advised Hoskins that:
You have the right to be represented by an attorney at each and
every stage in the prosecution and throughout an appeal. If you
desire an attorney but you can’t afford one the Court would
appoint one for you at county expense. You have the right to
appeal any guilty plea, verdict or sentence that may be imposed
by the Court and to be represented by an attorney throughout the
stages of an appeal. If you desired an attorney at the time of your
appeal and could not afford one the Court would appoint one for
you at county expense to assist you in your appeal.
Tr. p 4. Hoskins indicated that he understood these rights.
[5] Regarding representation by counsel, the following exchange between Hoskins
and the trial court took place:
THE COURT: Alright, so with respect to the petitions to revoke
probation and the, well let’s begin first with the new criminal
case. With respect to the new criminal case, do you intend to
represent yourself on that matter, either trying to reach a
resolution with the Prosecutor or presenting your case directly to
the Court or do you intend to be represented by an attorney?
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DEFENDANT: Um, I would like to see about resolving it with
the Prosecutor and see about doing house arrest or um work
release on both of them.
THE COURT: Alright, and is that the, your same intent on the
petitions to revoke probation?
DEFENDANT: Yes sir.
THE COURT: Now you had initially on the petitions to revoke
probation hired [private counsel] to represent you. Did his
representation end in that case?
DEFENDANT: I assume, I don’t know.
THE COURT: Are you still paying him to represent you?
DEFENDANT: No sir.
THE COURT: Alright, do you want me to show his
appointment concluded then?
DEFENDANT: Yeah, I don’t need him, that’s fine.
THE COURT: Alright, so we will show the appointment of
[private counsel] terminated on Defendant’s request at this time.
If you hire him and he starts appearing for you again we can
always add him back into the case, but for right now we will
show that you are going to represent yourself in both cases and
try to negotiate a resolution with the Prosecutor and probation.
We will take a short recess on your case, we have got another
matter to take up and that will give the Prosecutor and probation
a chance to talk to you and see if they can reach a resolution. I
will advise you, you don’t have to reach any agreement with the
Prosecutor, you can reject her offer, you can make a counter
offer, provide any facts that are helpful to your case, um, you can
reject her offer completely and present your arguments here in
open Court, maybe I will do what she wants, maybe I will do
what you want, maybe I will do something neither of you want
or you can change your mind altogether and request an attorney.
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If you cannot afford one you can ask me to appoint one for you,
but if you do reach an agreement we should be able to wrap your
case up today, ok?
Id. at 6–7. The court then recessed to permit Hoskins, pro se, to negotiate with
the prosecuting attorney.
[6] When the trial court resumed the hearing, Hoskins indicated that he been
unable to reach an agreement with the State and that he wanted to “leave it up
to” the trial court. Id. at 7. The court clarified, “So you are going to plead open
and leave it all up to me?” Id. Hoskins replied, “Yes sir.” Id. The court
reiterated that Hoskins had numerous constitutional rights, including the right
to counsel and that, by pleading guilty, he would waive these rights. Hoskins
indicated that he understood this. See id. at 9–10. Hoskins then admitted to the
facts alleged in the petitions to revoke and the charging information. The trial
court found that there was an adequate factual basis to support Hoskins’s pleas,
found that Hoskins had violated the terms of his probation in Cause Nos. F6-79
and CM-39, and found him guilty in Cause No. F6-21. The trial court
sentenced Hoskins to 730 days in Cause No. F6-21. The trial court revoked
Hoskins’s probation in Cause No. F6-79 and ordered him to serve 730 days.
The trial court extended Hoskins’s probation in Cause No. CM-39 by one year.
The trial court also declared Hoskins eligible for the purposeful incarceration
program. Hoskins now appeals.
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Discussion and Decision
[7] Hoskins claims that he did not knowingly or intelligently waive his right to
counsel. The State argues that Hoskins cannot bring this claim on direct appeal
because he pleaded guilty. We agree with the State.
[8] As we explained in Creekmore v. State:
With limited exceptions, “a conviction based upon a guilty plea
may not be challenged by . . . direct appeal.” Tumulty v. State, 666
N.E.2d 394, 395 (Ind. 1996). The correct avenue for presenting
such claims is post-conviction relief. Brightman v. State, 758
N.E.2d 41 (Ind. 2001). Two exceptions to the prohibition on
challenging a guilty plea on direct appeal have been recognized.
First, a person who pleads guilty is entitled to contest on direct
appeal the merits of a trial court’s sentencing decision where the
trial court exercised sentencing discretion. Collins v. State, 817
N.E.2d 230 (Ind. 2004). Further, a person who pleads guilty is
entitled to contest on direct appeal the trial court’s discretion in
denying withdrawal of the guilty plea prior to sentencing.
Brightman v. State, 758 N.E.2d [at] 41.
853 N.E.2d 523, 532–33 (Ind. Ct. App. 2006), clarified on denial of reh’g, 858
N.E.2d 230; see also Huffman v. State, 822 N.E.2d 656, 660 (Ind. Ct. App. 2005)
(applying Tumulty to defendant who pleaded guilty to probation violation then
attacked validity of her plea on direct appeal); Ind. Post-Conviction Rule 1(a)(5)
(“[a]ny person who has been convicted of, or sentenced for, a crime by a court
of this state, and who claims . . . that . . . his probation, parole or conditional
release [was] unlawfully revoked . . . may institute at any time a proceeding
under this Rule to secure relief.”).
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[9] In Creekmore, the defendant pleaded guilty and claimed on direct appeal that he
did not knowingly or intelligently waive his right to counsel. We concluded that
“[t]he issue of whether Creekmore knowingly, voluntarily, and intelligently
waived his right to counsel should be pursued by filing a petition for post-
conviction relief.” Creekmore, 853 N.E.2d at 533. We therefore dismissed
Creekmore’s appeal as to this issue.1 Id.
[10] We reached the same conclusion in Crain v. State, 875 N.E.2d 446 (Ind. Ct.
App. 2007). In that case, the defendant pleaded guilty and argued on direct
appeal that his waiver of the right to counsel was not valid because the trial
court did not sufficiently advise him of the advantages of being represented. We
held that Crain’s argument regarding the waiver of his right to counsel must be
presented in a petition for post-conviction relief, not on direct appeal. Id. at 447
(citing Creekmore, 853 N.E.2d at 532). Because this was the only issue Crain
raised on appeal, we dismissed. Id.
[11] The same result obtains here. Hoskins pleaded guilty to both the new criminal
offense and to the probation violations. His argument on appeal regarding his
waiver of the right to counsel attacks not the trial court’s sentencing discretion,
but the validity of his plea. His claim must therefore be presented by way of a
petition for post-conviction relief. See Tumulty, 666 N.E.2d at 395–96; Crain,
875 N.E.2d at 447; Creekmore, 853 N.E.2d at 532–33. Cf. Stamper v. State, 809
1
Creekmore also challenged the trial court’s sentencing decision in a number of ways, which arguments we
addressed on the merits. Id. at 527–32.
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N.E.2d 352, 354 (Ind. Ct. App. 2004) (holding that defendant who pleaded
guilty could present a claim on direct appeal that he did not knowingly or
intelligently waive his right to counsel at the sentencing hearing because this
claim was an indirect attack on the trial court’s sentence and did not attack the
validity of the guilty plea), disagreed with on other grounds by Henley v. State, 881
N.E.2d 639, 647 n.6 (Ind. 2008).
Conclusion
[12] Because Hoskins’s claim cannot be presented on direct appeal and must instead
be presented in a petition for post-conviction relief, we dismiss this appeal
without prejudice as to his ability to present this claim in a petition for post-
conviction relief. See Huffman, 822 N.E.2d at 660 (holding that defendant who
pleaded guilty to a probation violation could not raise claims on direct appeal
attacking the validity of the plea and dismissing without prejudice as to her
right to raise these issues in a subsequent post-conviction proceeding).
[13] Dismissed.
Kirsch, J., and Bailey, J., concur.
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