Court of Appeals of Indiana | Memorandum Decision 55A01-1508-PC-1286 | September 7, 2016 Page 1 of 6

MEMORANDUM DECISION

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.

APPELLANT PRO SE

Alan James Hoover

Pendleton, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Karl M. Scharnberg

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Alan James Hoover,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

September 7, 2016

Court of Appeals Case No.

55A01-1508-PC-1286

Appeal from the Morgan Circuit

Court

The Honorable Matthew Hanson, 

Judge

Trial Court Cause No.

55C01-1506-PC-868

Altice, Judge.

Case Summary
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[1] Alan Hoover appeals from the denial of his petition for post-conviction relief. 

Hoover presents three issues for our review, one of which we find dispositive: 

Did the trial court abuse its discretion by summarily denying his petition for 

post-conviction relief (PCR petition) without a hearing?

[2] We reverse and remand.

Facts & Procedural History

[3] On October 29, 2008, the State charged Hoover with murder, a felony, and 

aggravated battery, a Class B felony. On February 2, 2009, the State amended 

the charging information by replacing the aggravated battery count with felony 

murder, and adding a count for robbery as a Class A felony. A four-day jury 

trial commenced on March 23, 2009. The jury found Hoover guilty of robbery, 

acquitted him of murder, and was unable to reach a verdict as to felony murder. 

The trial court held a sentencing hearing on April 22, 2009, and sentenced 

Hoover to twenty-five years imprisonment. Hoover filed a notice of appeal the 

same day.

On direct appeal, Hoover argued that (1) the acquittal on the murder charge 

and the inability of the jury to reach a decision on the felony murder charge 

rendered his conviction for robbery as a Class A felony inconsistent; (2) the 

evidence was insufficient to support his robbery conviction; (3) the trial court 

erred in instructing the jury on felony murder; (4) the trial court erred by not 

instructing the jury on the lesser offense of theft; and (5) double jeopardy 

principles prohibited retrial on felony murder. This court affirmed Hoover’s 
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conviction for robbery and further concluded that Hoover could not be retried 

on the felony murder count. Hoover v. State, 918 N.E.2d 724 (Ind. Ct. App. 

2009), trans. denied.

[4] On July 30, 2010, Hoover filed a PCR petition, which was withdrawn without 

prejudice on October 23, 2013. On June 5, 2015, Hoover, pro se, filed the 

instant PCR petition. Hoover raised four issues: (1) his appellate counsel1 was 

ineffective, (2) he was denied due process when the “self-defense absolving 

affects [were] not applied to all counts/elements”, (3) he was denied due 

process because he was not provided notice of the nature of the charges against 

him, and (4) his trial counsel was ineffective for failing to raise mitigating 

circumstances at sentencing. Appellant’s Appendix at 4. Pursuant to Hoover’s 

request, he was appointed a public defender. The State filed an answer to 

Hoover’s PCR petition generally denying the allegations therein. On July 30, 

2015, the public defender filed a notice of non-representation, asserting that 

Hoover’s claims were not meritorious or in the interest of justice. See Ind. PostConviction Rule 1(9)(c). The following day the trial court entered an order

summarily denying Hoover’s PCR petition without a hearing. Hoover now 

appeals.

Discussion & Decision

 

1

It appears that the same attorney represented Hoover at trial and on appeal. 
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[5] Post-conviction proceedings afford petitioners a limited opportunity to raise 

issues that were unavailable or unknown at trial and on direct appeal. Conner v. 

State, 711 N.E.2d 1238, 1244 (Ind. 1999); see also Ind. Post-Conviction Rule 

1(1)(a). Such proceedings are not “super appeals” through which convicted 

persons can raise issues that they failed to raise at trial or on direct appeal. 

McCary v. State, 761 N.E.2d 389, 391 (Ind. 2002). Post-conviction proceedings 

are civil in nature, and petitioners bear the burden of proving their grounds for 

relief by a preponderance of the evidence. P-C.R. 1(5).

[6] Post-Conviction Rule 1(4) provides two different subsections under which a 

post-conviction court may deny a petition without a hearing—subsection (f) 

and subsection (g). Subsection (f) provides that a post-conviction court “may 

deny the petition without further proceedings” if “the pleadings conclusively 

show that [the] petitioner is entitled to no relief [.]” Ind. Post–Conviction Rule 

1(4)(f). Subsection (g) provides that a post-conviction court:

may grant a motion by either party for summary disposition of 

the petition when it appears from the pleadings, depositions, 

answers to interrogatories, admissions, stipulations of fact, and 

any affidavits submitted, that there is no genuine issue of 

material fact and the moving party is entitled to judgment as a 

matter of law.

P-C.R. 1(4)(g). Disposal of a petition under each of these two subsections leads 

to a different standard of review on appeal. Allen v. State, 791 N.E.2d 748, 752 

(Ind. Ct. App. 2003), trans. denied.
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Here, there was no motion filed by either party requesting summary disposition. 

Rather, the day after the public defender filed its notice of non-participation, the 

trial court summarily denied Hoover’s PCR petition, finding that his requested 

relief was “not warranted.” Appellant’s Appendix at 22. Thus, the summary 

disposition in this case was pursuant to subsection (f).

[7] When a court disposes of a petition under P-C.R. 1(4)(f), we essentially review 

the lower court’s decision as we would a motion for judgment on the pleadings. 

Allen, 791 N.E.2d at 752. The court errs in disposing of a petition in this 

manner unless “the pleadings conclusively show that petitioner is entitled to no 

relief.” P-C.R. 1(4)(f). If the petition alleges only errors of law, then the court 

may determine without a hearing whether the petitioner is entitled to relief on 

those questions. Allen, 791 N.E.2d at 753 (Clayton v. State, 673 N.E.2d 783, 785 

(Ind. Ct. App. 1996)). However, if the facts pled raise an issue of possible 

merit, then the petition should not be disposed of under section 4(f). Id. “This 

is true even though the petitioner has only a remote chance of establishing his 

claim.” Id. (quoting Clayton, 673 N.E.2d at 785).

[8] It is well-settled that a post-conviction proceeding is generally the preferred 

forum for adjudicating claims of ineffective assistance of counsel because the 

presentation of such claims often requires the development of new evidence not 

present in the trial record. See Jewell v. State, 887 N.E.2d 939, 941-42 (Ind. 

2008); Woods v. State, 701 N.E.2d 1208, 1220 (Ind. 1998). Hoover asserted a 
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claim of ineffective assistance of counsel.2 Although Hoover did not specifically 

delineate how his counsel was ineffective at this stage, his claim is not subject to 

summary denial without a hearing. Indeed, the pleading does not “conclusively 

show that [Hoover] is entitled to no relief.” See P-C.R. 1(4)(f). The trial court 

erred in denying Hoover’s PCR petition without a hearing. We therefore 

reverse the trial court’s order denying Hoover’s PCR petition and remand with 

instructions to conduct a hearing thereon.

[9] We reverse and remand.

[10] Bailey, J. and Bradford, J., concur.

 

2 Hoover presented other claims in his PCR petition, some of which may fall under his claim of ineffective 

assistance of appellate counsel.