The Indiana Court of Appeals has upheld the denial of a man’s request for post-conviction relief because he couldn’t prove that his trial or appellate counsel were ineffective.
In Anthony Hogan v. State of Indiana, No. 20A03-1103-PC-158, Anthony Hogan had been convicted of criminal deviate conduct, attempted rape, battery resulting in serious bodily injury, and being a habitual offender. On direct appeal, the COA vacated his battery conviction on double jeopardy grounds. He then sought post-conviction relief pro se.
Hogan claimed his trial and appellate counsel failed to argue that a statement that he made to a detective was inadmissible for any purpose because it was involuntary; his trial counsel didn’t advise him of his right to a jury trial on the habitual offender charge, and appellate counsel should have argued that the record was devoid of evidence of a valid waiver of that right; and his trial counsel should have requested an instruction on criminal deviate conduct as a Class B felony as a lesser-included offense of the Class A felony criminal deviate conduct charge, and appellate counsel should have raised the issue as fundamental error.
The appellate court found that Hogan was correct that his statement couldn’t be used unless it was taken voluntarily, but he didn’t present any evidence that it was involuntary. He was also correct that an advisement of his right to a jury trial on the habitual offender charge and his personal waiver should have been made on the record, but he failed to show that he was prejudiced by this, the court found.
Hogan also didn’t show that his trial attorney’s decision not to tender an instruction on a lesser-included offense was an unacceptable strategy or that the appellate counsel should have raised the issue as a fundamental error.