COA affirms PCR denial after home explosion

A Dearborn County man who detonated a homemade bomb in his own home failed to prevail on his appellate claims for post-conviction relief.

After an April 2017 explosion in his home, Bradley Back was charged with four felonies including manufacturing or possessing a destructive device, attempt to manufacture a destructive device, criminal recklessness and possession of a destruction device. Prior to the explosion, Back and his girlfriend, Tracy Henderson, had broken up, and Back had made repeated attempts to contact her in person and online.

In July 2018, Indianapolis criminal defense attorney Robert Hammerle, who was representing Back, received an offer from the state for Back to plead guilty to Level 3 felony attempted aggravated battery, requiring him to admit that he intended to use the explosive to harm Henderson. However, Back had previously indicated that he would not admit to intending to injure Henderson and thus would not plead to attempted aggravated battery.

Hammerle presented multiple counteroffers, and he and the state ultimately reached an agreement whereby Back would plead guilty to Level 2 felony possessing a destructive device. Hammerle met with Back and his family to review the written plea agreement, which Back signed. He was then sentenced to 25 years with 10 years suspended.

Roughly one year later, Back filed for post-conviction relief, raising numerous ineffective-assistance-of-counsel claims against Hammerle. Once such claim was that Hammerle had failed to communicate the state’s initial offer for Back to plead guilty to Level 3 felony attempted aggravated battery.

Also, in his proposed findings and conclusions, Back wrote that “the factual basis [for his guilty plea] was insufficient because the Prosecutor stated he ‘did not’ possess a destructive device.” The state said the prosecutor merely misspoke, so the Dearborn Superior Court sua sponte listened to the audio recording from the guilty hearing, where the prosecutor said Back “did” possessive a destructive device. The transcript, however, showed the prosecutor saying “did not.”

After the parties gathered to listen to the recording, Back filed an objection to the sua sponte review of the transcript while the state moved to correct it. Ultimately, the trial court denied Back’s PCR petition, finding that Hammerle wasn’t ineffective, that his argument challenging the factual basis of the plea was waived, and that the record should reflect the “actual factual basis” that Back “did” possess a destructive device.

Back appealed, but the Indiana Court of Appeals affirmed Wednesday in Bradley C. Back v. State of Indiana, 20A-PC-1173.

As to Back’s argument that Hammerle was ineffective for failing to communicate the Level 3 felony plea offer, Judge Melisa May wrote, “Hammerle testified he communicated the Level 3 felony attempted aggravated battery plea offer to Back and Back’s family prior to Back signing the final plea but Back had previously and consistently indicated he would not admit he intended to harm his ex-girlfriend.”

“Because we cannot reweigh the evidence or judge the credibility of witnesses, we find no error in the post-conviction court’s determination that Hammerle did not render ineffective assistance of counsel because he communicated the Level 3 felony plea offer to Back and Back’s family.”

Further, on the issue of the correction of the transcript, May pointed to Indiana Trial Rule 60(A), which allows errors in the record to be “corrected by the trial court at any time before the Notice of Completion of Clerk’s Record is filed under Appellate Rule 8.”

“To suggest that the post-conviction court could not, or should not, have corrected this error leads this court to believe that Back seeks to take advantage of a clerical error that he did not even detect until late in the post-conviction proceedings as an avenue by which to relieve him of any penalty for constructing, possessing, and detonating a homemade bomb, which resulted in substantial property damage,” the judge wrote. “The post-conviction court had the authority to correct the transcript of Back’s Guilty Plea Hearing and ensured the preservation of an accurate record in doing so.”

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