Court of Appeals of Indiana | Opinion 10A01

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- 690 | March 15, 2017 Page 1 of 22 A TTORNEY FOR A PPELLANT Stephen T. Owens Public Defender of Indiana Jeffrey R. Wright Deputy Public Defender Indianapolis, Indiana A TTORNEY S FOR A PPELLEE C urtis T. Hill, Jr. Attorney General of Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA

Gary Hanks , Appellant

- Petitioner ,

v. 

### State of Indiana , Appellee

- Respondent

. March 15, 2017 Court of Appeals Ca se No. 10A01

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- 690 Appeal from the Clark Circuit Court The Honorable Andrew Adams, Judge Trial C ourt Cause No. 10C01

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- 7

Mathias , Judge
.

[1] 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

.Court of Appeals of Indiana | Opinion 10A01

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- 690 | March 15, 2017 Page 2 of 22 [2] When a defendant is de ciding whether to expose himself to a sentencing judge’s absolute discretion, i s local defense counsel constitutionally re quired to advise his client of the local judge’s sentencing practices in cases like his client’s? Because Hanks has not persuaded us t hat, as applied to the f acts of his case, counsel wa s required to do so , w e affirm as to the ineffective assistance claim. We remand for judgment on the voluntariness claim because it was raised but

not resolved below. 

### Facts and Procedural History

[3] 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 acc usations 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.

[4] 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.Court of Appeals of Indiana | Opinion 10A01

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- 690 | March 15, 2017 Page 3 of 22 [5] On March 7, 2001, from his office about five miles away, Sturgeon sent Hanks a letter in jail abo ut 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 tw enty

- year statutory minimum and the thirty

- year presumptive sentence.

[6] 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 acce pt her plea offer or go to trial.” Id. Sturgeon advised Hanks of the nine ty

- year maximum sentence Hanks c ould 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 inten tion 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 alternative courses.Court of Appeals of Indiana | Opinion 10A01

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- 690 | March 15, 2017 Page 4 of 22 [7] Hanks did not accept the thirt y - 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

.

[8] 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 a bsolute 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.

[9] 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 tha t he and Sturgeon did not discuss what the sentencing judge “might do” in s entencing 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 acc epted the open offer , still hoping for a sentence less than thirty years

. On June 11, 2001, t he plea agreement was filed and accepted by the trial court.

[10] At that time, Judge Daniel F. Donahue (“Judge Donahue”) was judge of the Clark Circuit Court. Judge Do nahue served in that capacity from 1987 to 2008.Court of Appeals of Indiana | Opinion 10A01

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- 690 | March 15, 2017 Page 5 of 22 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 base d his s en tencing 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 thoug ht, “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 sente nce . . . 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 practice s in sex offender cases, T r. p. 21, nor of Judge Donahue’s disfavor of open pleas. Tr. p. 22.

[11] At his J uly 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 cas es 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 theCourt of Appeals of Indiana | Opinion 10A01

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- 690 | March 15, 2017 Page 6 of 22 statutory maximum fifty

- year term in the Department of Correction. Hanks did not appeal his sentence.

[12] Sometime later , Hanks heard from a fellow inmate at the Department of Correction that the following colloquy with Judge Donahue had taken place at the fellow inmate’ s September 30, 2002, s entencing hearing on a n 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 tw o individuals and they’re both serving fifty years in prison. Were you aware of that?
[Fellow Inmate ]: No, sir.

. . . .
The Court: [The fellow inmate’s counsel] represented them and they were blind pleas and I listened to it all. I read the Pre

- Sentence In vestigation Report. I heard what every, each side had to say. And in those cases I maxed them out . . . . So I’m going to do the same thing here. I don’t know, as I sit here I cannot tell you immediately what sentence I’m going to impose, but you need to k now for the record that in these kinds of cases I

— [i]t ought to be known to criminal [d]efendants that I take a pretty hard stand. . . . . I want you to know that that’s the history that I have. And to be fair to you, you need to know it up front before we go forward and before you enter pleas . . . . I don’t particularly care for blind pleas. I’d muchCourt of Appeals of Indiana | Opinion 10A01

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- 690 | March 15, 2017 Page 7 of 22 rather the State and the defense, and defense counsel decide what is appropriate based upon history. . . . I’ll tell you what we’ll do. We’ll go off record. And I’ll step down and we’ll give [the fellow inmate] and [his attorney] five or ten minutes to discuss this. . . . [Y]ou need to know up front, and you, quite frankly, should have been told.

Confidential Ex . Vol., Pet.’s Ex. D1, pp. 20

– 21

.

[13] Hanks petitione d for post

- conviction relief on June 16, 2011

. The post

conviction court heard evidence and argument on Hanks’s amended petition on January 22, 2016. Particularly, the court heard the testimony of Hanks, Sturgeon , and Jeffrey Stonebraker (“Stonebraker”), chief public defender for Clark County in 2001 and at the time of the hearing in this case. The post

conviction court denied the petition on March 8, 2016.

[14] This appeal timely followed. Hanks claims that Sturgeon provided constitutionally ineffecti ve assis tance in failing to advise Hanks of Judge Donahue’s sentencing practices with regard to open pleas in sex offender cases, but for which failure Hanks would not have rejected the thirty

- year offer. Hanks claims further that, from his ignorance of Judge Dona hue’s sentencing practices, his guilty plea was not knowingly, intel ligently, and voluntarily made. To remedy these alleged deficiencies, Hanks seeks reduction of his fifty

- year sentence to thirty years.Court of Appeals of Indiana | Opinion 10A01

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### Standard of Review

[15] A post

- conviction petitioner be ars the burden of showing he is entitled to relief by a preponderance of the evidence. Bethea v. State , 983 N.E.2d 1134, 1138 (Ind. 2013); Ind. Post

- Conviction Rule 1(5). A petitioner appealing the denial of his petition thus appeals from a negative judgme nt , that is, from an adverse decision of an issue on which the petitioner bore the burden of proof

. Bethea , 983 N.E.2d at 1138. To prevail on appeal of a negative judgment, the petitioner must show that the evidence as a whole leads unerringly and unmistak ably to a conclusion opposite that reached by the post

- conviction court. Id. We disturb that court’s factual findings only where clearly erroneous, leaving us with a definite and firm conviction that a mistake has been made. Id. We review legal conclusions de novo. Id.


### Discussion and Decision I. Ineffective Assistance of Counsel

[16] The Sixth Amendment to the federal constitution, applied to this state in relevant part by the Fourteenth Amendment, protects the right of an accused “[i]n all criminal prosecution s . . . to have the assistance of counsel for his defense.” U.S. Const. amend. VI; Powell v. Alabama , 287 U.S. 45, 68 (1932). Our state constitution protects the same right. Ind. Const. art. I, § 13 (“In all criminal prosecutions, the accused shall have the right . . . to be heard by . . .Court of Appeals of Indiana | Opinion 10A01

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- 690 | March 15, 2017 Page 9 of 22 counsel . . . .” ). 1 The assistance of counsel means the effective assistance of counsel. Powell , 287 U.S. at 71. Counsel himself can deprive an accused of his Sixth Amendment right by failing to render adequate legal assistance. Strickland v. Washington , 466 U.S. 668, 686 (1984). A defendant who receives ineffective assistance is entitled to a remedy that will “neutralize the taint of [the] constitutiona l violation, ” Lafler v. Cooper , 132 S. Ct. 1376, 1388 (2012) (internal quotation and citation omitted), including setting aside a guilty plea where
necessary
. Id. at 1389.

[17] To prevail on a claim that he has received ineffective assistance of counsel, a def endant must satisfy a two

- pronged test: first, that counsel’s performance fell below an objective standard of professional reasonableness (“the performance prong”) ; second, that there is a reasonable probability the outcome of the proceeding would have bee n different but for counsel’s unprofessional errors (“the prejudice prong”). Strickland , 466 U.S. at 687 ; Bethea , 983 N.E.2d at 1138

– 39

. Failure to satisfy either prong causes the whole claim to fail

. French v. State , 778 N.E.2d 816, 824 (Ind. 2002). This analysis applies equally to plea negot iations as to trial performance, Hill v. Lockhart , 474 U.S. 52 (1985), Segura v. State , 749 N.E.2d 296 (Ind. 2001), as plea negotiation is one of the “critical phase[s] of litigation” to which the Si xth Amendment right attaches. Padilla v. Kentucky , 559 U.S. 356, 373 (2010).

1 Hanks raises no separate argument from this provision of our constitution.Court of Appeals of Indiana | Opinion 10A01

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- 690 | March 15, 2017 Page 10 of 22 [18] T he alleged deficiency in Sturgeon’s performance is hi s failure to advise Hanks of Judge Donahue’s sentencing practices in sex offender cases

. The post

conviction court expressly found that Sturgeo n “did not know” of those practices. Appellant’s App. p. 156. Hanks does not ask us to revisit that finding; indeed, he argues that the standard of review prohibits us from doing so. Appellant’s Br. p. 17. Rather, Hanks claims, Sturgeon’s “lack of knowledg e, alone” was deficient performance. Id.

[19] This was the same claim the post

- conviction court rejected as a matter of law. Appellant’s App. p. 157 ( post

- conviction court’s memorandum decision, ruling that, in the absence of evidence that “[Sturgeon] had any knowledge of what the judge would do or that [Sturgeon] mislead his client, [Sturgeon’s] failure to know, alone, does not meet the standard for ineffective assistance . . . .”). We owe no de ference to the post

- conviction court’s legal conclusion that Sturg eon’s failure to know, alone, cannot rise to the level of constitutionally deficient performance

.

[20] “Even under de novo review, ” however, “ the standard for judging counsel’s representation is a most deferential one.” Premo v. Moore , 562 U.S. 115, 122 (2011) (internal quotation and italics omitted). “[C]ounsel’s performance is presumed effective,” a presumption overcome only by “strong and convincing evidence” of ineffectiveness. Overstreet v. State , 877 N.E.2d 144, 152 (Ind. 2007). Accordingly, we presume that all significant decisions were made in the exercise of counsel’s reasonable professional judgment. Timberlake v. State , 753Court of Appeals of Indiana | Opinion 10A01

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- 690 | March 15, 2017 Page 11 of 22 N.E.2d 591, 603 (Ind. 2001). In particular, counsel enjoys broad discretion in making tactical and str ategic decisions, and we defer to such decisions. Id.

[21] “[H]ow to define the duty and responsibilities of defense counsel in the plea bargain process” is a “difficult question.” Missouri v. Frye , 132 S. Ct. 1399, 1408 (2012). The interaction of Strickland wi th the Supreme Court’s more recent decisions in Padilla , Lafler , and Frye has created “a new field not only of plea

bargaining law, [as charged by the Lafler dissenters, 132 S. Ct. at 1391 (Scalia, J., dissenting) , ] but also of pretrial advice law.” Richar d E. Myers II, The Future of Effective Assistance of Counsel: Rereading Cronic and Strickland in Light of Padilla , Frye , and Lafler, 25 Tex. Tech. L. Rev. 229, 234 (2013). The boundaries of this new field are still undefined. Neither Hanks nor the State ha ve provided us with adequate guidance for resolving this question of first impression: When a defendant is deciding whether to expose himself to a local sentencing judge’s absolute discretion, is local defense counsel constitutionally required to advise hi s client of the local judge’s sentencing practices in cases like his client’s?

[22] First, t he distinction s between failure to know , failure to advise , and affirmative ly bad advice are not dispositive to the legal analysis of Hanks’s claim . To the extent that t he post

- conviction court’ s decision relied on those distinction s , the court erred

.

[23] The Supreme Court considered the operation of the distinction between failure to advise and bad advice in Padilla . There, a long

- time lawful permanentCourt of Appeals of Indiana | Opinion 10A01

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- 690 | March 15, 2017 Page 12 of 22 resident of the United States pleaded guilty to several drug offenses. Counsel did not tell Padilla that his guilty plea “made his deportation virtually mandatory,” 559 U.S. at 359, and affirmatively advised him not “to worry about immigration status.” Id.

[24] The Court squarely h eld “that counsel must inform her client whether his plea carries a risk of deportation.” Id. at 374 (emphasis added). This holding expressly rejects the distinction between failure to advise and bad advice

. See also id. at 369

- 70 (considering whether to l imit Strickland to cases of bad advice , where its application is well settled, and deciding not to so limit it), 388 (Alito, J., concurring in the judgment) (“[S]ilence alone is not enough to satisfy counsel ’s duty to assist the client.”); Black v. State , 54 N.E.3d 414, 427 ( Ind. Ct. App. 2016) (reading Padilla to hold that “there is no relevant difference between an act of commission and an act of omission”), trans. denied

. This holding also impliedly rejects the distinction between failure to advise of wh at is known and failure to know, alone.

[25] Similarly, in Frye , a case close to the facts before us , defense counsel failed to inform the defendant of a favorable plea offer from the prosecution. The offer lapsed. Frye later pleaded guilty open, as Hanks did, and received a harsher sentence than he would have under the lapsed offer. There as here, “the guilty plea that was accepted, and the plea proceedings concerning it in court, were all based on accurate advice and information from counsel.” Frye , 132 S. Ct. at 1406. There as here, “[t]he challenge is not to the advice pertaining to the plea that was accepted [viz., in Hanks’s case, the choice between the open offer andCourt of Appeals of Indiana | Opinion 10A01

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- 690 | March 15, 2017 Page 13 of 22 trial] but rather to the course of legal representation that preceded it with respect to o ther potential pleas and plea offers [viz., in Hanks’s case, the choice between the thirty

- year offer, trial, or seeking a more favorable offer].” Id.

[26] The Court held that, “as a general rule, defense counsel has the duty to
communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.” Id. at 1408 (emphasis added)

. N othing here suggests that counsel’s duty to communicate would have evaporated if Missouri had shown that Frye’ s counsel did not actually know of the plea offer (for example, if counsel never opened the prosecutor’s letter communicating the offer) , so long as it could fairly be said that counsel should have known of the offer.

[27] If failure to advise may be constitutionally deficient on the same terms as bad advice, the cause of a failure to advise, whether because of overwork, 2 procrastination, or ignorance, is immaterial. The right at issue is the right “ the accused shall enjoy,” U.S. Const. amend

. VI (emphasis added) , to receive the effective assistance of counsel. It is either the right of an accused to be advised of a particular fact, or it is not. If information about a local judge’s sentencing practices is a necessary component of receiving effective assistance from local

2 In Frye , “ Galin Frye’s lawyer did not make a strategic choice to decline to relay the prosecutor’s offer because he thought it was unreasonable or that Frye had a case worth taki ng to trial. Rather, he was struggling with a crushing caseload that so preoccupied him that he did not even find the time to communicate a favorable plea offer to Frye.” Peter A. Joy & Rodney J. Uphoff, Systemic Barriers to Effective Assistance of Counsel in Plea Bargaining , 99 Iowa L. Rev. 2103, 2112 (2014).Court of Appeals of Indiana | Opinion 10A01

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- 690 | March 15, 2017 Page 14 of 22 counsel in a particular case , the accused’s lack of such information satisfies the performance prong without regard for why counsel failed to supply it. Put another way, the content of the Sixth Amendment right is defined by an objective standard of professional reasonableness, not by individual counsel’s subjective knowledge, skill, or diligence.

[28] Next , with no barrier as a matter of law to Hanks’s claim, i t rema ined Hanks’s burden to show that, on the facts of his case, Sturgeon’ s failur e to advise him of Judge Donahue’s sentencing practices fell below an objective standard of professional reasonableness. This Hanks has not done.

[29] In its standards for criminal practitioners, the American Bar Association (“ABA”) states, with respect to sent encing, “Defense counsel’s preparation should . . . include familiarization with the court’s practices in exercising sentencing discretion . . . and [with] the normal pattern of sentences for the offense involved . . . .” Criminal Justice Standards: Prosec ution Function and Defense Function Standard 4

- 8.1 (Am. Bar Ass’n 1993). The comment to Standard 4

- 8.1 explains further that “[c]ounsel must . . . become familiar with the judge’s actual sentencing practices. . . . The lawyer should carefully explain to th e defendant the sentencing alternatives available to the court and what they will mean for the defendant personally . . . .” Id. at cmt. We note that the language of the governing standard itself is hortatory (“should”); onl y the language of the comment is mandatory (“must”). Neither the ABA’s Model Rules of Professional Conduct nor Indiana’s Rules of Professional Conduct speak directly to this issue.Court of Appeals of Indiana | Opinion 10A01

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- 690 | March 15, 2017 Page 15 of 22 [30] W hethe r, as a general rule, performance is measured by a national or local standard is not settled

. See Str ickland , 466 U.S. at 689 (“Prevailing norms of practice as reflected in [ABA] standards and the like . . . are guides to determini ng what is reasonable . . . .”). Compare Rompilla v. Beard , 545 U.S. 374, 387 (2005) (The ABA standards state counsel’s obliga tion to investigate “in

t erms no one could misunderstand . . . .”), Wiggins v. Smith , 539 U.S. 510, 524 (2003) (“Counsel’s conduct . . . fell short of the standards for capital defense work articulated by the [ABA] . . . .”), Williams v. Taylor , 529 U.S. 3 62, 396 (2000) (finding deficient performance in capital sentencing where “trial counsel did not fulfill their obligation to conduct a thorough investigation of the defendant’s background” as required by ABA standards), with Cullen v. Pinholster , 563 U.S. 170, 196 (2011) (denying relief and faulting dissenters for failing to cite evidence that counsel’s conduct “would have been inconsistent with the standard of professional competence in capital cases that prevailed in Los Angeles in 1984 ”), Wiggins , 539 U. S. at 524 (“Counsel’s decision . . . fell short of the professional standards that prevailed in Maryland in 1989.”).

[31] The strongest claims for deficient performance, of course, present failures of multiple standards. See Frye , 132 S. Ct. at 1408 ( granting relief relying on ABA standards, holdings of five state high courts and seven federal circuits, and six state codes of professional conduct), Wiggins , 539 at 524

– 25 (relying on both national and local standards). T he Supreme Court has emphasized that national

sta ndards like the ABA’s are “guides to determining what is reasonable, but they are only guides.” Strickland , 466 U.S. at 688.Court of Appeals of Indiana | Opinion 10A01

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- 690 | March 15, 2017 Page 16 of 22 [32] In the case of familiarity with local judges’ sentencing practices, a national standard, standing alone, seems parti cularly inadequate to determining the lower bounds of reasonably effective performance. We acknowledge that the federal constitution must mean the same thing in Clark County as in Marion County, see Tr. p. 65 (prosecutor expressing doubt about how Hanks’ s argument

c ould apply to large counties like Marion) , and the same thing in Indiana as in Illinois. Martin v. Hunter’s Lessee , 14 U.S. 304, 348 (1816) (Story, J.) (“If . . . the constitution of the United States [c]ould be different in different states, . . . [t]he public mischiefs that would attend such a state of things would be truly deplorable . . . . ” ). Further, w e acknowledge that use of a local standard may validate as “tactical” the individual decisions imposed on counsel by a structurally def icient system of representation, whether due to systemic prejudice, systemic lack of resources, or other systemic defect. See Tollet t v. Henderson , 411 U.S. 258, 269 (1973) ( “[T]he chances of respondent’ s being able to [prove an incompetently counseled guilty plea on remand] would appear slim” in view of the lower courts’ reliance on “the statement of the concurring judge in the Tennessee Court of Criminal Appeals that ‘[n]o lawyer in this State would have ever thought of obje cting to the fact that Negroes did not serve on the Grand Jury in Tennessee in 1948 . . . .’”)

.

[33] Nevertheless, in the case of local counsel’s familiarity with a local judge’s sentencing practices in a class of cases, w hile the ABA standards impose a general , national obligation on defense counsel to attain such familiarity, the particular content of this obligation is susceptible to local variation in a wayCourt of Appeals of Indiana | Opinion 10A01

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- 690 | March 15, 2017 Page 17 of 22 that other professional standards, for example, the duty to adequately investigate or the duty to comm unicate plea offers , are not. What level of familiarity with local judges in a class of cases is professionally reasonable, and how quickly it is professionally reasonable to attain that level of familiarity , will obviously be very different in Clark Count y, Indiana, than in Cook County, Illinois, with a population nearly fifty times as great. 3

[34] When a claim of ineffective assistance is predicated on failure to advise of or act

on local, extralegal idiosyncra sies , as Hanks’s is, a showing of deficient perfo rmance req uires strong evidence that the local, extralegal idiosyncrasy rose to the level of governing professional norm. See Premo v. Moore , 562 U.S. at 122 (“The question is whether an attorney’s representation amounted to incompetence under prevailing p rofessional norms, not whether it deviated from best practices or most common custom.” (internal quotation and citation omitted) )

.

[35] Crucially , there is no evidence in the record that re asonable professional competence in Clark County in 2001 required knowle dge of Judge Donahue’s sentencing practices in sex offender cases. T he only evidence in the record is that Sturgeon did not know of these pr actices; that Stonebraker, the chief public defender for Clark County, and his office did not formally or informally instruct

3 Clark County, population 110,232; Cook County, population 5,194,675. U.S. Census Bureau, 2010 Census Interactive Population Search , http://www.census.gov/2010census/popmap/ipmtext.php?fl=18019:17031 (last updated May 26, 2011).Court of Appeals of Indiana | Opinion 10A01

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- 690 | March 15, 2017 Page 18 of 22 i ts attorneys on these or other judges’ practices; and that Judge Donahue speculated local attorn eys “would likely” know of his practices. Ex. Vol., Pet.’s Ex. E.

[36] Neither Judge Donahue nor a single local attorney claimed that any local attorney actually did know of Judge Donahue’s practices. There is no evidence of the frequency with which sex offender cases were brought before Judge Donahue, still less of how many such cases were brought before the judge on open pleas, such that the judge’s “ har d stance ” in those cases, id. , could or should have been inferred by local counsel. No evidence tended to show Judge Donahue actually ha d his self

- ascribed reputation

. To the contrary, Stonebraker testified that, in general, Judge Donahue “did not have a reputation for giving the maximum sentence in every case,” that Judge Donahue was thought to “evaluat[e] each case on its merits,” and that Judge Donahue did not have a reputation as a “hanging judge, so to speak.” Tr. p. 45. Judge Donahue’s speculation that he “would likely” have had such a reputation in sex offender

cases is far from showing that loc al attorneys as a matter of professional competence should have known o f his sentencing practices in such cases

. Ex. Vol., Pet.’s Ex. E.

[37] Below, Hanks argued that “an attorney has to more than just say, you know, here’s the offer, here’s the sentence . . . , what do you want to do. An attorney has to give his client a little m ore guidance than that.” Tr. p. 69; see Boria v.
Keane , 99 F.3d 492, 495 (2d Cir. 1996) (finding counsel’s agnosticism as to a plea offer to be constitutionally deficient because the ABA “standard on theCourt of Appeals of Indiana | Opinion 10A01

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- 690 | March 15, 2017 Page 19 of 22 precise question before us is . . . [that a] ‘defens e lawyer in a criminal case has the duty to advise his client on whether a particular plea to a charge appears to be desirable.’” (internal citation omitted)).

[38] It is true that Sturgeon’s March 7, 2001, letter to Hanks offered no evaluation of or substanti ve advice regarding the wisdom of accepting the thirty

- year offer. Sturgeon testified that such letters were his “standard practice” when a client did not want to accept a pending plea offer, drafted “the same day or within days,” Tr. p. 20, leaving little time for meaningful investigation or evaluation. Sturgeon implied that anything more would remove the decision from his clients’ hands. See Tr. p. 31. Sturgeon further testified that another “standard practice” was “always to take about fifteen minutes an d go through . . . plea agreements with [his] clients, paragraph by paragraph.” Tr. p. 32 (emphasis added). 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 H anks received no guidance on the likelihood of achieving his stated goal of a sentence under thirty years. Tr. p. 52. Though Sturgeon could not recall any specifics of Hanks’s case, this testimony suggests that Hanks decided to throw himself at the mercy o f Ju dge Donahue , exposing himself to fifty years’ incarceration, on the strength of one letter reciting the applicableCourt of Appeals of Indiana | Opinion 10A01

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- 690 | March 15, 2017 Page 20 of 22 statutory maximum and minimum sentences , one fifteen

- minute read

- through of the terms of the plea agreement, and nothing else. 4

[39] Hanks has not , however, renewed broad arguments from these facts on appeal, and they do not go to his narrow claim for failure to advise of Judge Donahue’s sentencing practices.

[40] For all of these reasons, w e conclude that Hanks has not carried his burden to show that the facts of this case lead unerringly and unmistakably to the conclusion that Sturgeon , by his failure to advise Hanks of Judge Donahue’s sentencing practices in sex offender cases, fell short of the standard of reasonable competence demanded of Clar k County defense counsel in 2001

. We must decline Hanks’s invitation to constitutionalize Judge Donahue ’s opinion about what a different crim inal defendant, “quite frankly, should have been told.” Confidential Ex. Vol., Pet.’s Ex. D1, p. 21.

4 Moreover, in a case where Hanks’s guilt was nearly a foregone conclusion, and nearly all the benefit Hanks could get from counsel would be had either in plea bargaining or at sentencing, Sturgeon presented effectively
no ca se in mitigation. Hanks pleaded for mercy in allocution; Sturgeon pointed out that Hanks had just accepted resp onsibility and was contrite. However, Sturgeon did emphasize that “nobody . . . can undo what has been done to [Hanks’s victim],” Ex. Vol., Pet.’ s Ex. B, p. 18, that Hanks was “willing to accept whatever punishment the [c]ourt deems necessary,” id. at p. 19, that “whatever the [c]ourt does to [Hanks] is nothing compared to what he has done to [his victim],” id. , that “it’s between Mr. Hanks and God ,” id. , and that Sturgeon was not “going to sit here and try to recommend anything specific to the [c]ourt,” id. at p. 20, despite his client’s repeatedly expressed desire for a sentence less than the presumptive. Tr. pp. 51

– 52. Sturgeon’s parsimony and su a maxima culpa could not, of course, have been a tactical preference in the face of Judge Donahue’s “hard stance” in sex offender cases, Ex. Vol., Pet.’s Ex. E, because Sturgeon did not know of that stance.Court of Appeals of Indiana | Opinion 10A01

- 1604

- PC

- 690 | March 15, 2017 Page 21 of 22 [41] Because Hanks failed to show deficient performance, his entire ineffective assistance claim fails, and we need no t reach the question of prejudice

. French v.
State , 778 N.E.2d 816, 824 (Ind. 2002).


### II. Knowing, Intelligent, and Voluntary Plea

[42] Hanks claims further that his plea, f rom ignorance of Judge Donahue’s

senten cing practices, was not knowing, intelligent, and voluntary. Hanks properly raised this claim in the post

- conviction court , supporting it with evidence and ar gument. Appellant’s App. pp. 55

- 57 (memorandum of law in

su pport of amended petition), 148

- 49 (proposed findings of fact and conclusions of law)

. Hanks renews these arguments on appeal. Appellant’s Br. pp. 19

- 22.

[43] That claim, however, was never resolved by the court below. See Appellant’s App. pp. 152

- 157 (trial court’s memorandum order denying relief , never discussing or deciding the voluntariness issu e). Post

- conviction courts are required “to make specific findings of fact, and conclusions of law on all issues presented” by a petition for post

- conviction relief. P

- C.R. 1(6). The State has

not addressed the voluntariness claim with separate argument on appeal. See Appellee’s Br. pp. 14

- 15 ( treating ineffective assistance and voluntariness claims as indistinguishable ).

[44] “[V]olu ntariness [of pleas] is distinct from ineffective assistance of counsel.” Cornelious v. State , 846 N.E.2d 354, 358 (Ind. Ct. App. 2006) (citing State v.
Moore , 678 N.E.2d 1258, 1266 (Ind. 1997) ) , trans. denied

. The two claims are reviewed under different s tandards. Id. “Voluntariness in Indiana practiceCourt of Appeals of Indiana | Opinion 10A01

- 1604

- PC

- 690 | March 15, 2017 Page 22 of 22 focuses on whether the defendant knowingly and freely entered the plea, in contrast to ineffective assistance, which turns on the performance of counsel and resulting prejudice.” Id. (internal quotation and citation omitted). “[D]efendants who can show that they were coerced or misle d into pleading guilty by the judge, prosecutor or defense counsel will present colorable claims for relief.” Moore , 678 N.E.2d at 1266. Further, a plea may be involuntary because improperly induced by unfulfillable promises. Lineberry v. State , 747 N.E.2d 1151 (Ind. Ct. App. 2001).

[45] Hanks is entitled to be heard and receive the post

- conviction court ’ s ruling on this issue. We remand for a determination of whether Hanks was misled by Sturgeon’s omission or improperly induced to accept the open offer on the incorrect understanding that the open offer was more favorable than the thirty

year offer.


### Conclusion

[46] For all of these reasons, w e affir m the post

- conviction court’s denial of Hanks’s ineffective assistance claim. We remand for judgment on whether Hanks’s plea was knowing, intelligent, and voluntary in light of the applicable standard

.

[47] Affirmed in part and remanded.

Robb, J., and Brown, J. , concur.