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Hooker v. State

Court of Appeals of Indiana

March 21, 2019

David Hooker, Appellant-Petitioner,
State of Indiana, Appellee-Respondent.

          Appeal from the Vanderburgh Circuit Court No. 82C01-0812-PC-18. The Hon. David D. Kiely, Judge, The Hon. Kelli E. Fink, Magistrate

          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 Indianapolis, Indiana

          BRADFORD, JUDGE.

         Case Summary

         [¶1] 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 affirm.

         Facts and Procedural History

         [¶2] 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 felony."

         [¶3] 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.[1]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 closed.
[Judge Fink]: Right. How did he gain entry into the building?
[Hooker's counsel]: You went through a door, right?
[Hooker]: Yeah
[Judge Fink]: Did you go through a door?
[Hooker]: Yes.
[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 …
[Hooker]: No.
[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.

         [¶4] 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?
[Hooker]: Yes.
[Judge Fink]: Do you want to plead guilty to that offense?
[Hooker]: Yeah.
[Judge Fink]: Now, based on the evidence that the State has read to you, do you still want to plead ...

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