from the Vanderburgh Circuit Court No. 82C01-0812-PC-18. The
Hon. David D. Kiely, Judge, The Hon. Kelli E. Fink,
ATTORNEYS FOR APPELLANT Stephen T. Owens Public Defender of
Indiana Hope Fey Deputy Public Defender Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
of Indiana J.T. Whitehead Deputy Attorney General
In October of 2001, the State entered into a plea agreement
with David Hooker, pursuant to which he would plead guilty to
Class C felony burglary. At the change-of-plea hearing, while
Hooker denied having to push the already-open door to gain
entry to the residence in question, he did admit that he had
squeezed through the opening. The trial court accepted
Hooker's guilty plea. In 2017, Hooker filed an amended
petition for post-conviction relief ("PCR") in
which he claimed that the trial court erred in accepting his
guilty plea because he had denied his guilt at the hearing.
The post-conviction court concluded that Hooked had not
simultaneously maintained his innocence when he pled guilty
to Class C felony burglary and denied his PCR petition.
Hooker contends that the post-conviction court's
conclusion is clearly erroneous. Because we disagree, we
and Procedural History
On October 1, 2001, the State charged Hooker with Class B
felony burglary and Class D felony theft. Hooker and the
State reached a plea agreement pursuant to which Hooker would
plead guilty to Class C felony burglary in exchange for
dismissal of the theft charge. At the time, Indiana Code
section 35-43-2-1 provided that "[a] person who breaks
and enters the building or structure of another person, with
intent to commit a felony in it, commits burglary, a Class C
A change-of-plea hearing was held on November 2, 2001.
Then-Judge pro tempore Kelli Fink asked
Hooker, "[D]id you break and enter a building that was
owned by [Z.M.]?", to which Hooker replied,
"[y]es." Prior App. p. 12.When Judge Fink asked Hooker
again whether he had broken into the building, Hooker's
counsel interjected that Hooker "would not say he broke
into the building" but that counsel's
"understanding of the law is that you do not have to
break into the building [and] if he was in a building with
the intention to commit a felony, that is sufficient."
Prior App. p. 13. The following exchange occurred:
[The State]: He may have used some force to gain entry which
might have been as simple as pushing a door open which was
[Judge Fink]: Right. How did he gain entry into the building?
[Hooker's counsel]: You went through a door, right?
[Judge Fink]: Did you go through a door?
[Judge Fink]: Did you push the door open?
[Hooker]: It was …
[Hooker's counsel]: It was open wasn't it?
[Judge Fink]: Did you push the …
[Hooker]: No, it was open. It had a box that was against the
door. The door thing was open, it had a box against and some
kind of metal thing was behind the door, I don't …
[Judge Fink]: Okay, did you have to physically touch the door
and push it open in order to …
[Judge Fink]: … gain entry?
[Hooker]: No, it was already open. Now I moved by the door. I
remember the door was … you've got to squeeze
through there to get in.
Prior App. pp. 13-14.
Counsel requested a recess, and, when the hearing resumed,
Hooker said that he wanted to plead guilty. The State read
the factual basis into the record, followed by more
discussion between Hooker and Judge Fink:
[The State]: Your Honor, if this were to proceed at trial the
State would call the owner of the residence, or the renter of
the residence who had a contractual interest in it, a woman
by the name of [Z.M.] and she'd testify that she was
moving out, had left some items in the house behind and the
State believes that she would testify that the door was
closed when she left the residence at the last time she was
there. The State would also call a witness by the name of
David Mills who lived across the street from the burglarized
residence and he would testify that at approximately 11:00
when he went to bed he didn't notice anything unusual
about the residence, but at 1:00 to 1:30 in the morning he
heard some dogs barking and his own dogs were indicating
something was unusual going on. He looked out and saw that
the house at 1607 Evans, the door was open and that there was
a red car parked in the alley way there that had not been
there earlier at 11:00 when he went to bed. He also saw a set
of hands that were reaching out through the opened rear door
stacking items on the back porch and he contacted the police.
When the police arrived, Officers Hoehn and several other
officers with the Evansville Police Department arrived,
looked around the residence, didn't have any luck or get
any response and the officer finally entered through the back
of the house and called out and the defendant finally did
come out from inside the residence, and that's where he
was located when officers arrived. The State heard and the
Court heard the statements by the defendant earlier, and
through the case law I believe the Court can establish a
factual basis through the statements having been given by the
defendant. He indicated that he did have to squeeze in to get
into the residence. [….] He did place himself in a
position to commit a felony inside. He did commit the
entering element. He did ... he was found inside. He did
indicate earlier that he was inside the residence and he did
in fact commit a felony by committing theft. Several items
that were originally inside the house including a circular
saw, some stereo equipment and an area rug were found inside
the defendant's vehicle which was parked in the alleyway
outside the house to show the element of theft.
[Judge Fink]: The agreement [is] that you plead guilty to
Burglary as a Class C felony, which means you did break and
enter the building and […] structure on October
8th, 2001 […] with the intent to commit a
felony therein, to-wit Theft, contrary to Indiana law. Do you
understand that's a lesser included offense of Burglary a
C felony that I've read to you?
[Judge Fink]: Do you want to plead guilty to that offense?
[Judge Fink]: Now, based on the evidence that the State has
read to you, do you still want to plead ...