The opinion
MEMORANDUM DECISION
Jul 16 2015, 8:26 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
John A. England Gregory F. Zoeller
Special Assistant to the Public Defender Attorney General of Indiana
of Indiana
Ian McLean
Indianapolis, Indiana
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Christopher W. Hovis, July 16, 2015
Appellant-Petitioner, Court of Appeals Case No.
92A03-1412-PC-418
v. Appeal from the Whitley Circuit
Court
State of Indiana, The Honorable James R. Heuer,
Judge
Appellee-Respondent
Case No. 92C01-0212-FC-201
Crone, Judge.
Case Summary
[1] Christopher W. Hovis appeals the postconviction court’s denial of his petition
for postconviction relief. He challenges the postconviction court’s admission of
certain exhibits and the voluntariness of his guilty plea on a habitual offender
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count. Finding that the exhibits were relevant and thus admissible and that his
habitual offender guilty plea was not involuntarily made, we affirm.
Facts and Procedural History
[2] The facts as summarized in an unpublished memorandum decision on Hovis’s
second belated direct appeal are as follows:
On July 9, 2002, Hovis, Ronrico Hatch (Hatch), James Piatt (Piatt),
and two unnamed persons visited a cornfield in Whitley County,
Indiana under the guise of locating marijuana in the cornfield.
According to Hovis, Hatch and Piatt were involved in a dispute over
marijuana money. While walking through the cornfield, Hatch fired
several gunshots at Piatt, and Piatt shot Hatch once. Piatt was fatally
wounded, and Hatch received a bullet wound in his abdomen. Hovis
left Piatt’s body in the cornfield and took Hatch to a hospital, where he
claimed that Hatch had been shot by an unknown person in Shoaff
Park, located in Fort Wayne, Indiana.
The following day, on July 10, 2002, Hovis and his brother took Piatt’s
car and drove to Whitley County, where they set the car ablaze and
destroyed it. On July 11, 2002, Hovis and his brother returned to the
cornfield with the intention of killing Piatt if he were still alive. Piatt
was dead when they found him, so they dragged his body further into
the cornfield where it would not be visible from the road. Piatt’s body
remained there for 47 days until it was discovered on August 25, 2002.
At that point, Piatt’s body had decomposed to the extent that it could
not be embalmed and Piatt's mother was unable to have an open
casket for Piatt’s funeral. Piatt’s family searched the cornfield and
found two pieces of Piatt’s braided hair, one of which was attached to
part of Piatt’s skull.
On December 19, 2002, the State filed an Information charging Hovis
with Count I, assisting a criminal, a Class C felony, I.C. § 35-44-3-2;
Count II, arson, a Class D felony, I.C. § 35-43-1-1(d); Count III,
moving a body, a Class D felony, I.C. § 36-2-14-17(b); and Count IV,
habitual offender. On January 2, 2003, the trial court held an initial
hearing, at which point Hovis entered a plea of not guilty. On June 23,
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2003, Hovis filed a motion to withdraw his former plea of not guilty
and to enter a plea of guilty to all Counts.
On August 25, 2003, the trial court held a sentencing hearing and
merged Hovis’ convictions for Counts II and III with Count I, finding
that the same factual bases supported each conviction. [Hovis admitted
to being a habitual offender.] The trial court sentenced Hovis to eight
years for assisting a criminal, with an enhancement of twelve years for
being an habitual offender. In total, Hovis received a sentence of 20
years' incarceration in the Indiana Department of Correction, with no
time suspended.
Hovis v. State, No. 92A03-1011-CR-613 (Ind. Ct. App. Dec. 27, 2011).
[3] With respect to the habitual offender count, a clerical error in the charging
information misstated the sentencing year for the first predicate offense as 2001
instead of 2000. Other evidence, including the presentence investigation report
(“PSI”), showed that Hovis’s first predicate offense was a felony auto theft
conviction (“Cause DF-25”) for which he was sentenced to one and a-half
years’ probation on March 24, 2000. On or about May 11, 2000, he committed
theft and was charged with three counts of class D felony theft (“Cause DF-
617”). Because he was on probation when he committed theft, the State filed a
petition to revoke his probation on August 2, 2000. On November 14, 2000,
while the probation revocation was still pending in Cause DF-25, Hovis pled
guilty and was convicted in Cause DF-617. On December 4, 2000, the trial
court revoked Hovis’s probation in Cause DF-25 and remanded him to the
Indiana Department of Correction (“DOC”). At the same hearing, the trial
court sentenced him in Cause DF-617 to one year in the DOC, to be served
consecutive to his sentence in Cause DF-25.
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[4] In January 2006, Hovis filed a petition for postconviction relief. He filed
belated direct appeals in 2010 and 2011, the first of which was dismissed and
the second of which resulted in the affirmance of his sentence. 1 In January
2014, he filed an amended petition for postconviction relief, claiming that his
guilty plea to the habitual offender count was not voluntarily entered.
[5] At the May 2014 postconviction hearing, Hovis argued that the prosecutor
misled him concerning his eligibility as a habitual offender. The State offered
Postconviction (“PC”) Exhibits A through G over Hovis’s relevancy objections.
These exhibits comprise copies of chronological case summaries (“CCS”),
charging informations, probable cause affidavits, and sentencing orders from
Causes CF-25 and CF-617. The postconviction court admitted the exhibits and
took judicial notice of Hovis’s 2003 PSI. On August 7, 2014, the
postconviction court issued its findings of facts and conclusions of law denying
Hovis’s petition.
[6] Hovis filed a motion to correct error and request for an evidentiary hearing. At
the hearing, he introduced copies of DOC records concerning his commitments.
The State was granted leave to file a written response, and the postconviction
court subsequently denied Hovis’s motion to correct error. Hovis now appeals.
Additional facts will be provided as necessary.
1
The sentencing issues raised in Hovis’s second belated direct appeal are distinct from the issues raised in
this appeal.
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Discussion and Decision
[7] Hovis contends that the postconviction court erred in denying his petition for
postconviction relief. The petitioner in a postconviction proceeding “bears the
burden of establishing grounds for relief by a preponderance of the evidence.”
Ind. Postconviction Rule 1(5); Passwater v. State, 989 N.E.2d 766, 770 (Ind.
2013). When issuing its decision to grant or deny relief, the postconviction
court must make findings of fact and conclusions of law. Ind. Postconviction
Rule 1(6). A petitioner who appeals the denial of his postconviction petition
faces a rigorous standard of review. Massey v. State, 955 N.E.2d 247, 253 (Ind.
2011). In conducting our review, we neither reweigh evidence nor judge
witness credibility; rather, we consider only the evidence and reasonable
inferences most favorable to the judgment. McKnight v. State, 1 N.E.3d 193, 199
(Ind. Ct. App. 2013), trans. denied (2014). “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.”
Passwater, 989 N.E.2d at 770 (citation and quotation marks omitted). In other
words, if a postconviction petitioner was denied relief in the proceedings below,
he must show that the evidence as a whole leads unerringly and unmistakably
to a conclusion opposite the one reached by the postconviction court. Massey,
955 N.E.2d at 253. Postconviction relief does not offer the petitioner a super
appeal; rather, subsequent collateral challenges must be based on grounds
enumerated in the postconviction rules. McKnight, 1 N.E.3d at 199. These
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rules limit the scope of relief to issues unknown or unavailable to the petitioner
on direct appeal. Id.
Section 1 – The postconviction court acted within its
discretion in admitting State’s Postconviction Exhibits
A through G.
[8] Hovis challenges the postconviction court’s admission of State’s PC Exhibits A
through G. We review a postconviction court’s ruling on the admissibility of
evidence for an abuse of discretion. Badelle v. State, 754 N.E.2d 510, 521 (Ind.
Ct. App. 2001), trans. denied. An abuse of discretion occurs where the trial
court’s decision is clearly against the logic and effect of the facts and
circumstances before it. Members v. State, 857 N.E.2d 1019, 1021 (Ind. Ct. App.
2006).
[9] Hovis maintains that the State’s PC Exhibits A through G were inadmissible on
relevancy grounds. See Ind. Evidence Rule 402 (“Evidence which is not
relevant is not admissible.”). Indiana Evidence Rule 401 defines relevant
evidence as “evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.”
[10] With respect to the relevancy of the challenged exhibits, the postconviction
court found that “State’s Exhibits A through G clearly establish that
Christopher W. Hovis was an Habitual Felony Offender when he was
sentenced, herein, on August 25, 2003, pursuant to his guilty plea.” Appellant’s
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App. at 141. State’s PC Exhibits A through C consist of the CCS, probable
cause affidavit, and guilty plea and sentencing transcripts respectively, all for
Cause DF-25. State’s PC Exhibits D through G consist of the CCS, charging
information, probable cause affidavit, and judgment of conviction respectively,
all for Cause DF-617. Exhibit D is highly probative as it explains Hovis’s
assertion that he remembered being sentenced for Causes DF-25 and DF-617 at
the same time by the same judge, “right around Christmas.” Tr. at 12. This
exhibit, comprising the CCS for Cause DF-617, shows that on December 4,
2000, the trial court imposed sentence on Cause DF-617. At that time, the trial
court (and CCS) did reference Cause DF-25 because Hovis had previously been
sentenced to probation in that case and had violated that probation and been
remanded to the DOC. Thus, the trial court simply ruled that Hovis’s sentence
for Cause DF-617 would run consecutive to his reinstated sentence for Cause
DF-25 following his probation revocation. As such, Hovis’s recollection of
simultaneous sentencing in Causes DF-25 and DF-617 is inaccurate.
[11] Considered individually and together, State’s PC Exhibits A through G contain
dates and other information relevant to establishing the substance and sequence
of Hovis’s prior unrelated felony convictions as required under the habitual
offender statute. Ind. Code § 35-50-2-8(c). Thus, the exhibits were not
inadmissible on relevancy grounds. Based on the foregoing, we conclude that
the postconviction court did not abuse its discretion in admitting them.
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Section 2 – The postconviction court did not clearly err
in denying Hovis’s petition for postconviction relief.
[12] Hovis contends that the trial court clearly erred in finding that he had failed to
meet his burden of establishing grounds for postconviction relief. His sole
contention is that his plea of guilty to the habitual offender charge was not
voluntarily made but was the result of allegedly misleading conduct by the
prosecutor. “Pleas entered after coercion, judicial or otherwise, will be set
aside. Defendants who can prove that they were actually misled by the judge,
the prosecutor, or defense counsel about the choices before them will present
colorable claims for relief.” White v. State, 497 N.E.2d 893, 905-06 (Ind. 1986).
[13] Indiana Code Section 35-50-2-8 (2001) outlines the requirements for a habitual
offender count in pertinent part as follows:
(a) Except as otherwise provided in this section, the state may seek to
have a person sentenced as a habitual offender for any felony by
alleging, on a page separate from the rest of the charging instrument,
that the person has accumulated two (2) prior unrelated felony
convictions.
….
(c) A person has accumulated two (2) prior unrelated felony
convictions for purposes of this section only if:
(1) the second prior unrelated felony conviction was
committed after sentencing for the first prior unrelated felony
conviction; and
(2) the offense for which the state seeks to have the person
sentenced as a habitual offender was committed after
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sentencing for the second prior unrelated felony conviction.
[14] In its order denying Hovis’s petition for postconviction relief, the
postconviction court found as follows with respect to the habitual offender
count:
4. The information for Habitual Felony Offender filed on December
19, 2002, contains a clerical error in that the sentencing date of the first
felony conviction alleges “the 24th day of March, 2001,” and the
correct date is the “24th da[y] of March, 2000.”
5. State’s Exhibits A through G clearly establish that Christopher W.
Hovis was an Habitual Felony Offender when he was sentenced,
herein, on August 25, 2003, pursuant to his guilty plea.
6. Weatherford v. State[,] 619 N.E.2d 915 (Ind. 1993) is applicable to
this proceeding.
7. The Petitioner was not “misled” by the State as a result of the
clerical error.
Appellant’s App. at 140-41.
[15] In Weatherford, our supreme court explained that in postconviction cases, “[w]e
have considered possible defects in habitual offender proofs as ‘fundamental
error’ such that they may be raised notwithstanding failure to do so on direct
appeal. Where we have granted relief, however, the evidence has demonstrated
that the commission/conviction/sentencing were not in the proper order.” 619
N.E.2d at 917 (emphasis added). The Weatherford court emphasized that a
postconviction petitioner “must demonstrate that his various convictions did
not in fact occur in the required order.” Id. at 918.
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[16] Here, the habitual offender information contained a typographical error, listing
the sentencing year for the first predicate offense as 2001 rather than 2000,
therefore taking it out of sequence. The prosecutor read the information aloud
in court, complete with error, and Hovis admitted that he was a habitual
offender. Hovis now claims that this conduct misled him “regarding his
eligibility for habitual offender status” and thus induced him to enter a coerced,
involuntary guilty plea. Reply Br. at 2. We fail to see how. If the sentencing
date listed in the information for Cause DF-25 had appeared to be in sequence
when it actually was not, then his claim would have merit. Here, however, the
reverse occurred. The information contained a date that was clearly out of
sequence and which, if true, would have invalidated the habitual offender
count. If anything, the clerical error and prosecutor’s examination of him using
the erroneous date would have given him the false hope that he did not qualify
as a habitual offender. In contrast, the PSI clearly outlines the correct sequence
of the commission, conviction, and sentencing for his predicate offenses, and
Hovis admitted to the trial court at sentencing that he had read and reviewed
the PSI. Petitioner’s Ex. 3. The only concerns that Hovis raised as to the
accuracy of the information contained in the PSI concerned a pending criminal
charge in Allen County. Id. at 16.
[17] In short, Hovis’s prior unrelated felonies and sentencing dates were, in fact, in
the proper sequence, and he has failed to establish that the State used the
clerical error in the information to induce him to enter a guilty plea that he
otherwise would not have entered. As such, he has failed to establish clear
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error in the postconviction court’s finding that he was not misled into pleading
guilty to the habitual offender count. Consequently, we affirm.
[18] Affirmed.
Brown, J., and Pyle, J., concur.
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