from the Clark Circuit Court The Honorable Andrew Adams,
Judge Trial Court Cause No. 10C01-1106-PC-7
Attorney for Appellant Stephen T. Owens Public Defender of
Indiana Jeffrey R. Wright Deputy Public Defender
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
of Indiana J.T. Whitehead Deputy Attorney General
Gary Hanks ("Hanks") pleaded guilty in Clark
Circuit Court to one count of Class A felony child molesting.
Hanks collaterally attacks his plea as the product of the
ineffective assistance of his trial counsel and as not
knowingly, intelligently, and voluntarily made. Hanks's
petition for post-conviction relief on those grounds was
denied by the court below.
When a defendant is deciding whether to expose himself to a
sentencing judge's absolute discretion, is local defense
counsel constitutionally required to advise his client of the
local judge's sentencing practices in cases like his
client's? Because Hanks has not persuaded us that, as
applied to the facts of his case, counsel was required to do
so, we affirm as to the ineffective assistance claim. We
remand for judgment on the voluntariness claim because it was
raised but not resolved below.
and Procedural History
On July 20, 2000, Hanks was charged with one count of Class A
felony child molesting and four counts of Class C felony
child molesting. The State's case for guilt was strong:
Hanks's grade-school-aged victim, then living with Hanks,
had come forward with credible accusations and Hanks had
admitted the truth of most or all of them during a
noncustodial taped interview in Hanks's home with a
detective of the Jeffersonville Police Department.
On February 5, 2001, after withdrawal of Hanks's private
counsel, the Clark Circuit Court appointed the Clark County
public defender to represent Hanks. On February 13, 2001,
attorney Christopher Sturgeon ("Sturgeon") of the
public defender's office entered his appearance for
Hanks. Sturgeon had had a long career in Clark County
criminal litigation, serving as a deputy prosecutor from 1989
to 1994 and as a public defender since 1994. Hanks was then
being held in the Clark County jail.
On March 7, 2001, from his office about five miles away,
Sturgeon sent Hanks a letter in jail about a plea offer
Sturgeon had received from the State. Under the offer
("the thirty-year offer"), Hanks would plead guilty
to the Class A felony charge. In return, the State would
dismiss the four Class C felony charges and recommend a
thirty-year sentence, then the presumptive sentence for a
Class A felony. Sturgeon "assume[d]" that he and
Hanks had discussed the thirty-year offer before
Sturgeon's March 7, 2001, letter, Tr. p. 31, but, in any
event, Hanks held out hope for a reduced sentence between the
twenty-year statutory minimum and the thirty-year presumptive
In his letter, Sturgeon emphasized that the prosecutor
"will not reduce her previous [thirty-year]
plea offer . . . ." Ex. Vol., Pet.'s Ex. G (original
emphasis). Hanks "must either accept her plea offer or
go to trial." Id. Sturgeon advised Hanks of the
ninety-year maximum sentence Hanks could face if he went to
trial on all five felony charges and lost. Sturgeon noted
that Hanks had previously told him that Hanks "did not
have any intention of going to trial." Id.
Hanks now needed to make a final decision "whether [he]
want[ed] to accept the plea agreement or go to trial."
Id. With trial set for March 20, 2001, Sturgeon
needed to know Hank's choice "immediately."
Id. Beyond reciting the terms of the thirty-year
offer and the statutory maximum sentence Hanks could face if
convicted of all charges, Sturgeon provided no substantive
advice as to which course to pursue and did not suggest any
Hanks did not accept the thirty-year offer. The record does
not disclose whether Hanks expressly rejected it, or whether
and when the offer expired or was withdrawn. On Hanks's
motion, trial was continued to June 26, 2001.
On May 21, 2001, the State made a new offer ("the open
offer"): Hanks would plead guilty "open, "
that is, without benefit of a sentencing recommendation from
the State, to the Class A felony charge. If the agreement
were accepted by the trial court, the trial court would
retain absolute discretion to fix any sentence between the
twenty-year statutory minimum and the fifty-year statutory
maximum. In return, as under the thirty-year offer, the State
would dismiss the four Class C felony charges.
The course of negotiations leading to this offer, and
Sturgeon's advice, if any, to Hanks as he considered it,
do not appear clearly from the record. Hanks testified that,
beyond the thirty-year offer, the "only other avenue
that [Sturgeon] presented to [him] was the [open offer] or
going to trial." Tr. p. 52. Hanks testified that he and
Sturgeon did not discuss what the sentencing judge
"might do" in sentencing Hanks on an open plea, Tr.
p. 55, and that Hanks received no guidance on the likelihood
of achieving his stated goal of a sentence under thirty
years. Tr. p. 52. Hanks accepted the open offer, still hoping
for a sentence less than thirty years. On June 11, 2001, the
plea agreement was filed and accepted by the trial court.
At that time, Judge Daniel F. Donahue ("Judge
Donahue") was judge of the Clark Circuit Court. Judge
Donahue served in that capacity from 1987 to 2008. During
that time, Judge Donahue, according to his own account,
"took a hard stance in sentencing defendants in sexual
offender sentencing proceedings." Ex. Vol., Pet.'s
Ex. E. While Judge Donahue based his sentencing decisions on
the evidence and argument presented by the parties, "it
was not uncommon for maximum sentences to be imposed" by
him in sex offender cases. Id. This "history of
imposing maximum sentences in se[x] offender cases, "
Judge Donahue thought, "would likely" have been
known to local criminal defendants and to the local defense
bar. Id. Moreover, Judge Donahue "did not
particularly care for 'blind [i.e., open] pleas, '
but preferred to have the State and the defense decide an
appropriate sentence . . . and present that determination to
the [c]ourt for its acceptance or rejection."
Id. Sturgeon, however, despite his long career in
Clark County criminal litigation, was aware neither of Judge
Donahue's sentencing practices in sex offender cases, Tr.
p. 21, nor of Judge Donahue's disfavor of open pleas. Tr.
At his July 11, 2001, sentencing before Judge Donahue, Hanks
pleaded for mercy. Sturgeon pointed out Hanks's
contrition and immediate acceptance of responsibility but
brought forward no evidence in mitigation outside what Hanks
had just told the court in allocution. The State brought
forward the victim's mother and tendered a case on
appropriate sentencing in cases like Hanks's. The
prosecutor hoped "God shows [Hanks] mercy. This [c]ourt
should show him none." Ex. Vol., Pet.'s Ex. C., p.
26. Judge Donahue exercised his absolute discretion to the
fullest and sentenced Hanks to the statutory maximum
fifty-year term in the Department of Correction. Hanks did
not appeal his sentence.
Sometime later, Hanks heard from a fellow inmate at the
that the following colloquy with Judge Donahue had taken
place at the fellow inmate's September 30, 2002,
sentencing hearing on an open guilty plea to a sex offense:
The Court: Were you aware of the fact that in two prior cases
of a similar nature in which [the fellow inmate's
counsel] was defense attorney I maxed out [i.e., gave the
maximum sentence to] the two individuals and they're ...