MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Jul 27 2020, 9:17 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Brian Hook Curtis T. Hill, Jr.
Pendleton, Indiana Attorney General of Indiana
Courtney L. Staton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brian Hook, July 27, 2020
Appellant-Petitioner, Court of Appeals Case No.
20A-PC-306
v. Appeal from the
Wayne Superior Court
State of Indiana, The Honorable
Appellee-Respondent. Clay M. Kellerman, Special Judge
Trial Court Cause No.
89D03-1905-PC-2
Kirsch, Judge.
[1] Brian Hook (“Hook”) appeals the denial of his petition for post-conviction relief
raising two issues:
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I. Whether the trial court misled Hook during the guilty plea
hearing by failing to advise him that a felony conviction could be
used in the future to allege that Hook was an habitual offender;
and,
II. Whether trial counsel was ineffective.
[2] We affirm.
Facts and Procedural History
On March 13, 2012, Hook pleaded guilty to Class D felony operating a motor
vehicle while intoxicated (“the 2012 OWI conviction”). Tr. Vol. II at 2, 6, 13-
17.1 Before he pleaded guilty, the trial court advised Hook of the potential
penalty range he faced and the rights he was waiving by pleading guilty. Id. at
5, 7-10. It also advised Hook that he was “creating a permanent adult felony
record” and that this record could “be counted against” him in the future,
which may cause him to “receive a worse sentence than” he might receive if he
did not have those convictions on his record. Id. at 9. The trial court advised
Hook that, by pleading guilty to OWI, the conviction could be used in the
future to allege that Hook was a habitual substance offender2 or a habitual
traffic violator.3 Id. Hook indicated that he understood. Id. The trial court did
1
Citations to the record are as follows: “Tr” indicates citations to the transcript from Hook’s plea and
sentencing hearing, which resulted in the 2012 OWI conviction, and “PC” indicates citations to the transcript
for the 2019 hearing on Hook’s PCR petition.
2
See Ind. Code § 35-50-2-10 (repealed July 1, 2014).
3
See Ind. Code § 9-30-10-4.
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not advise Hook that an OWI conviction could be used in the future to allege
that Hook was an habitual offender. The trial court also told Hook that his
conviction, as a motor vehicle offense, would be sent to the Bureau of Motor
Vehicles and would be added to his permanent driving record. Id. Hook
indicated that he understood this effect of his guilty plea. Id. At the end of the
hearing, the trial court sentenced Hook to the Indiana Department of
Correction for one year. Id. at 47-48; Appellant’s App. Vol. 2 at 11-12.
[3] On February 26, 2015, Hook was convicted of burglary as a Class B felony,
battery as a class A misdemeanor, and adjudicated an habitual offender with
the 2012 OWI conviction serving as one of the predicate convictions for his
habitual offender status. Id. at 60. He was sentenced to twenty years for the
burglary conviction and one year for the battery conviction, and his sentence
was enhanced by twenty years because of the habitual offender adjudication,
yielding an aggregate sentence of forty-one years. Id. at 60-61. On May 8,
2019, Hook filed a verified petition for post-conviction relief, contending that
trial counsel was ineffective in two ways regarding his 2012 OWI conviction:
1) she allegedly failed to advise Hook that if he pleaded guilty, the 2012 OWI
conviction could be used in the future to support an allegation that Hook was
an habitual offender and 2) she failed to ask the trial court to impose alternative
misdemeanor sentencing by entering judgment on the 2012 OWI conviction as
a Class A misdemeanor, instead of as a Class D felony. Appellant’s App. Vol. 2
at 13-20. Hook also argued that the trial court misled him during the 2012 plea
and sentencing because, while it advised him about the possibility that the 2012
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OWI conviction could support future adjudications for being a habitual traffic
violator or habitual substance offender, it failed to advise him that the 2012
OWI conviction could be used to support a future habitual offender
adjudication. He claims that because of these failures, his plea was not
knowing, intelligent, and voluntary. Id.
[4] At the September 13, 2019 hearing on Hook’s petition for post-conviction relief,
Hook’s trial attorney testified that before Hook pleaded guilty to the 2012 OWI
charge, she had advised him that such a conviction could be used in the future
to support a habitual offender adjudication and that there were notes in her file
to confirm that she had advised Hook to this effect. PC Tr. Vol. II at 5-10;
State’s Ex. 1. She testified that she had not argued for alternative misdemeanor
sentencing because she believed Hook was ineligible for that sentencing option
because Hook had three pending matters: 1) the instant Class D felony OWI
charge; 2) another Class D felony OWI charge; and 3) a request by the State to
revoke his probation because of the new charges. PC Tr. at 7; Tr. Vol. II at 4.
[5] On January 14, 2020, the post-conviction court denied Hook’s petition for post-
conviction relief. Appellant’s App. Vol. 2 at 8-9. It determined that the trial court
had appropriately advised Hook of the “possibility of a future worse sentence
due to having felonies on his record” and that his decision to enter into the plea
agreement was knowing, intelligent, and voluntary. Id. The post-conviction
court also determined that Hook was not denied the effective assistance of
counsel as to his sentence. Id. at 9. The court found that trial counsel had
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called several witnesses, introduced several pieces of evidence, and argued that
the trial court should consider numerous mitigating factors. Id.
Discussion and Decision
[6] The petitioner in a post-conviction proceeding bears the burden to establish
grounds for relief by a preponderance of the evidence. Humphrey v. State, 73
N.E.3d 677, 681-82 (Ind. 2017). When appealing the denial of a petition for
post-conviction relief, the petitioner is appealing a negative judgment. Campbell
v. State, 19 N.E.3d 271, 274 (Ind. 2014). Thus, he must show that the evidence
leads unerringly and unmistakably to a conclusion opposite to the post-
conviction court’s conclusion. Humphrey, 73 N.E.3d at 681. Although we do
not defer to the post-conviction court’s legal conclusions, its findings and
judgment will be reversed only upon a showing of clear error which leaves us
with the definite and firm conviction that the trial court erred. Id. at 682.
I. Was Hook’s Plea Knowing, Intelligent, and Voluntary?
[7] Hook contends his guilty plea was not knowing, intelligent and voluntary
because the trial court misled him by advising him that an OWI conviction
could be used to support a future charge that Hook was an habitual traffic
violator or habitual substance offender, but failing to warn him that an OWI
conviction could also be used to support a future habitual offender allegation.
[8] A petitioner who claims that his plea was involuntary and unintelligent must
plead specific facts from which the finder of fact could conclude by a
preponderance of the evidence that the trial court’s failure to make a full inquiry
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in accordance with Indiana Code section 35-35-1-2 rendered his decision
involuntary or unintelligent. Stoltz v. State, 657 N.E.2d 188, 190 (Ind. Ct. App.
1995) (citing White v. State, 497 N.E.2d 893, 905 (Ind. 1986)). At the time Hook
pleaded guilty, Indiana Code section 35-35-1-2 provided:
(a) The court shall not accept a plea of guilty or guilty but
mentally ill at the time of the crime without first determining that
the defendant:
(1) understands the nature of the charge against him;
(2) has been informed that by his plea he waives his rights to:
(A) a public and speedy trial by jury;
(B) confront and cross-examine the witnesses against him;
(C) have compulsory process for obtaining witnesses in his favor;
and
(D) require the state to prove his guilt beyond a reasonable doubt
at a trial at which the defendant may not be compelled to testify
against himself;
(3) has been informed of the maximum possible sentence and
minimum sentence for the crime charged and any possible
increased sentence by reason of the fact of a prior conviction or
convictions, and any possibility of the imposition of consecutive
sentences;
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(4) has been informed that the person will lose the right to
possess a firearm if the person is convicted of a crime of domestic
violence (IC 35-41-1-6.3); and
(5) has been informed that if:
(A) there is a plea agreement as defined by IC 35-35-3-1; and
(B) the court accepts the plea;
the court is bound by the terms of the plea agreement.
(b) A defendant in a misdemeanor case may waive the rights
under subsection (a) by signing a written waiver.
(c) Any variance from the requirements of this section that does
not violate a constitutional right of the defendant is not a basis
for setting aside a plea of guilty.
Ind. Code § 35-35-1-2.
[9] Hook does not contend that the trial court did not give these advisements, and,
therefore, we reject Hook’s claim that the trial court’s failure to advise him that
an OWI conviction could be used in the future for a habitual offender charge
rendered his plea unknowing, unintelligent, and involuntary. In advising Hook
pursuant to Indiana Code section 35-35-1-2, the trial court did everything it was
required to do because advisements about potential future consequences, such
as an habitual offender charge, are collateral matters that a trial court is not
required to address during a guilty plea hearing. See Owens v. State, 437 N.E.2d
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501, 504 (Ind. Ct. App. 1982) (potential future habitual offender status is a
collateral consequence of a guilty plea). The trial court “is not required to
inform the defendant of the possible collateral consequences of his plea as long
as the defendant has knowledge and understands the penalty or range of
penalties for the commission of the specific act to which he enters his plea of
guilty.” Id. Hook does not contend the trial court did not advise him about the
penalty ranges.
[10] Moreover, we have previously held that that a trial court’s decision to not
advise a person about a potential future enhancement did not mean the plea
was not knowing, intelligent, and voluntary. In Stoltz, 657 N.E.2d at 92, we
held that the defendant’s plea of guilty to operating a motor vehicle with blood
alcohol level greater than .10% was not rendered involuntary by the trial court's
failure to inform the defendant that the conviction would result in an automatic
ten-year license suspension because a license suspension was a collateral
consequence of the guilty plea. Similarly, in Allender v. State, 560 N.E.2d 545,
546 (Ind. Ct. App. 1990), we rejected a claim that a guilty plea was not
knowing, voluntary and intelligent because the trial court did not advise the
defendant that his driver’s license could be suspended for ten years if the Bureau
of Motor Vehicles determined that he was an habitual traffic offender. See also
Wright v. State, 495 N.E.2d 804, 805 (Ind. Ct. App. 1986) (rejecting defendant’s
claim that guilty plea was not entered knowingly, intelligently, and voluntarily
because trial court did not advise him of license suspension ramifications before
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accepting his guilty plea), trans. denied.4 Therefore, Hook has failed to
demonstrate that the trial court’s decision to advise Hook about some, but not
all, of the potential collateral consequences of pleading guilty means that his
plea was not knowing, intelligent, and voluntary.
II. Was Trial Counsel Ineffective?
[11] Hook argues that his trial counsel was ineffective because she failed to 1) advise
him that an OWI conviction could be used in the future to support an habitual
offender charge and 2) argue at sentencing that while the OWI conviction was a
Class D felony, the trial court should have entered judgment on that conviction
as a Class A misdemeanor.
[12] To prevail on a claim that counsel was ineffective, a defendant must show that
1) counsel’s performance fell below an objective standard of reasonableness
based on prevailing professional norms; and 2) there was a reasonable
probability that, but for counsel’s errors, the result of the proceeding would
have been different. Jervis v. State, 28 N.E.3d 361, 365 (Ind. Ct. App. 2015),
trans. denied. The right to effective counsel includes the plea-bargaining phase.
Lafler v. Cooper, 566 U.S. 156, 162-63 (2012). To establish prejudice from
counsel’s inadequate advice during plea negotiations, a defendant must show
4
We also observe that the trial court advised Hook that he was “creating a permanent adult felony record”
that could cause him to “receive a worse sentence than” he might receive if he did not have those convictions
on his record. Tr. Vol. II at 9. This statement plus the advisement from counsel about the potential exposure
to a future habitual offender charge further convince us that Hook was not misled.
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there was a reasonable probability that he would have rejected the guilty plea
and insisted on going to trial. Bobadilla v. State, 117 N.E.3d 1272, 1284 (Ind.
2019). To establish this reasonable probability, a defendant must show “special
circumstances” that support his claim that he would have proceeded to trial. Id.
In other words, a defendant must provide facts that demonstrate why he would
have moved forward to trial. Id. A defendant’s naked assertion that he would
have proceeded to trial but for the bad advice is insufficient. Id. “‘Courts
should not upset a plea solely because of post hoc assertions from a defendant
about how he would have pleaded but for his attorney’s deficiencies.’ Judges
should instead look to contemporaneous evidence to substantiate a defendant’s
expressed preferences.” Id. at 1286 (quoting at Lee v. United States, 137 S.Ct.
1958, 1967 (2017)).
[13] Here, Hook has failed to demonstrate that trial counsel was ineffective. First,
the record plainly establishes that counsel did, in fact, advise Hook that an
OWI conviction could be used in the future to claim that he was an habitual
offender. PC Tr. Vol. II at 5-10; State’s Ex. 1. Moreover, even if counsel had
failed to provide such information, Hook has failed to establish prejudice
because he does not support his allegations with facts that demonstrate
“rational reasons” for him to proceed to trial. See Bobadilla, 117 N.E.3d at
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1284. Hook’s bare assertion, that but for counsel’s alleged advice he would
have proceeded to trial, does not suffice.5
[14] Hook has also failed to demonstrate that trial counsel was ineffective for failing
to argue at sentencing that the trial court should enter judgment on Class D
felony OWI as a Class A misdemeanor. At the time Hook pleaded guilty, the
relevant statute provided, in part:
(b) Notwithstanding subsection (a), if a person has committed a
Class D felony, the court may enter judgment of conviction of a
Class A misdemeanor and sentence accordingly. However, the
court shall enter a judgment of conviction of a Class D felony if:
(1) the court finds that:
(A) the person has committed a prior, unrelated felony for which
judgment was entered as a conviction of a Class A misdemeanor;
and
(B) the prior felony was committed less than three (3) years
before the second felony was committed [.] . . .
Ind. Code § 35-50-2-7.
5
Hook also argues trial counsel was ineffective because during the guilty plea hearing she failed to ask the
trial court to advise Hook that an OWI conviction could later support an habitual offender allegation. This
claim has no merit because as we explained earlier in this decision, the trial court was not obligated to advise
Hook about any potential collateral consequences of pleading guilty and also because trial counsel had
advised Hook that an OWI conviction could be used to support a future habitual offender charge. See PC Tr.
Vol. II at 5-10; State’s Ex. 1.
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[15] We first observe that Hook’s argument fails because he has not demonstrated
that he would, in fact, have been eligible for this sentencing option. Hook
carries the burden to establish grounds for post-conviction relief, and, because
he is appealing a negative judgment, he must show that the evidence leads
unerringly and unmistakably to a conclusion opposite that reached by the post-
conviction trial court. Humphrey, 73 N.E.3d at 681-82. Hook fails to allege and
provide supporting evidence that he had not committed a prior unrelated felony
for which judgment was entered as a conviction of a Class A misdemeanor and,
if he had committed such a prior unrelated felony, the prior unrelated felony
was committed more than three years before the second felony was committed;
Hook’s failure to do so is a failure to establish that he would have been eligible
for alternative misdemeanor sentencing. See Ind. Code § 35-50-2-7(b)(1).
[16] Moreover, even if Hook was eligible for alternative misdemeanor sentencing, he
has failed to show the trial counsel was ineffective for not arguing for that
sentencing option because he has not shown there was a reasonable probability
that the trial court would have actually entered judgment on the conviction as a
Class A misdemeanor. See Jervis, 28 N.E.3d at 365 (petitioner must
demonstrate that but for counsel’s errors, the result of the proceeding would
have been different). A trial court has broad discretion whether to grant
alternative misdemeanor sentencing. F.D.F. v. State, 916 N.E.2d 708, 711 (Ind.
Ct. App. 2009).
[17] In 2012, when Hook pleaded guilty to OWI, he had an additional Class D
felony OWI charge pending and had violated the terms and conditions of his
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probation for a 2011 conviction for Class D felony OWI while endangering a
person. Tr. Vol. II at 7. Between 2008 and the time of Hook’s 2012 guilty plea,
he had accumulated four separate OWI convictions Id. at 41. Before imposing
the sentence, the sentencing court described Hook’s criminal history as
“frightening,” “particularly troubling,” and “crazy bad.” Id. at 45, 47.
Considering this criminal history, Hook has not persuaded us that if trial
counsel had argued for alternative misdemeanor sentencing, there would have
been a reasonable probability that the trial court would have used its discretion
to grant alternative misdemeanor sentencing. See Jervis, 28 N.E.3d at 365.
Accordingly, Hook has failed to demonstrate that trial counsel was ineffective
for failing to argue for alternative misdemeanor sentencing. 6
[18] Affirmed.
Najam, J., and Brown, J., concur.
6
We also observe that trial counsel zealously represented Hook at the guilty plea sentencing hearing.
Among other things, she called several witnesses, introduced several pieces of evidence, and argued that the
trial court should consider numerous mitigating factors. Appellant’s App. Vol. 2 at 9.
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