COA rejects ineffective counsel claim based on judge’s sentencing practices

A man who pleaded guilty to child molesting cannot prove that he received ineffective assistance of trial counsel, the Indiana Court of Appeals held Wednesday, but the post-conviction court must still address the issue of whether his plea was voluntary.

In Gary Hanks v. State of Indiana, 10A01-1604-PC-690, Gary Hanks was charged with one count of Class A felony child molesting and four counts of Class C felony child molesting.  Christopher Sturgeon, a Clark County public defender appointed to represent Hanks, advised his client of a plea offer from the state that would allow Hanks to plead guilty to only the Class A felony and be sentenced to 30 years.

Hanks rejected the plea deal, so that state made an “open offer” that would have allowed him to plead guilty to the Class A felony charge without the benefit of a sentencing recommendation from the state.  Hanks testified that he and Sturgeon did not discuss how the judge might sentence him on an open plea, but Hanks still chose to accept the offer.

Clark Circuit Judge Daniel F. Donahue, who admitted that he had a reputation for taking “a hard stance in sentencing defendants in sexual offender sentencing proceedings,” especially in open pleas, sentenced Hanks to the statutory maximum of 50 years in the Department of Correction. Hanks then filed for post-conviction relief, which was denied one year ago.

On appeal, Hanks argued that Sturgeon provided ineffective assistance of counsel by failing to advise him of Donahue’s sentencing practices, but for which he would not have rejected the original 30-year offer. Further, Hanks argued that because he did not know of Donahue’s sentencing practices, his guilty was plea was not knowing, intelligent or voluntary.

Judge Paul Mathias, writing for the Indiana Court of Appeals, said in a Wednesday opinion that, “If information about a local judge’s sentencing practices is a necessary component of receiving effective assistance from local counsel in a particular case, the accused’s lack of such information satisfied the performance prong (of an ineffective counsel claim) without regard for why counsel failed to supply it.”

However, Mathias also wrote that “there is no evidence in the record that reasonable professional competence in Clark County in 2001 required knowledge of Judge Donahue’s sentencing practices in sex offender cases.” Thus, Hanks has failed to carry his burden to show that Sturgeon’s failure to advise him of Donahue’s practices fell short of the standard of reasonable competence, the appellate judge said.

The appellate panel did, however, remand Hanks’ knowing, intelligent and voluntary plea claim to the post-conviction court after determining that the issue was not resolved.

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