Sentencing hearing ordered on remand for man in ineffective assistance appeal

Additional sentencing proceedings have been ordered for a man convicted of child molesting after the Indiana Court of Appeals determined his trial counsel’s performance on his behalf “fell below professional norms.”

In David Earl Hamilton v. State of Indiana, 20A-PC-1220, David Hamilton was convicted of Class A felony child molesting and sentenced to 40 years’ imprisonment, with 10 years suspended to probation.

In explaining its reasoning and pronouncing his sentence, the Elkhart Superior Court repeatedly stated that the victim had been five years old at the time the crime was committed. Notwithstanding references to a timeframe that pre-dated the enactment of the credit restriction statute, the trial court classified Hamilton as a credit restricted felon. His counsel did not challenge the imposition of the restriction

Hamilton eventually filed a petition for post-conviction relief, arguing he had been subjected to ex post facto punishment and deprived of the effective assistance of trial counsel. During an evidentiary hearing on the matter, defense counsel testified that he had anticipated the imposition of a credit restriction and had advised Hamilton accordingly.

The attorney also testified that he had no recollection of reviewing cases addressing ex post facto punishment and that Hamilton, elderly and in ill health, had articulated the expectation that he would die in prison.

The trial court ultimately denied Hamilton relief, finding that “the time frame referenced was neither disputed nor in any way narrowed by the Petitioner,” and the trial court’s references to the victim’s age had been made solely in the context of considering whether an aggravated sentence was appropriate. It also found that “the totality of the evidence allowed an inference of molestation on three occasions in 2007 to 2008,” that the trial court had not imposed an ex post facto sentence, and therefore that “the ineffectiveness claim lacks merit.”

But the Indiana Court of Appeals concluded otherwise, finding that although

Gaby v. State, 949 N.E.2d 870, 882-83 (Ind. Ct. App. 2011), and Upton v. State, 904 N.E.2d 700, 704-05 (Ind. Ct. App. 2009), were decided well in advance of Hamilton’s sentencing, defense counsel testified at the post-conviction hearing that he had no recollection of reviewing the case law.

“We can readily conclude that counsel fell short of prevailing professional norms when he did not undertake any determination of the extent of Hamilton’s exposure to criminal punishment or seek to elicit any relevant evidence,” Judge L. Mark Bailey wrote for the appellate court.

“The material averments of the Information, the truth of which Hamilton admitted under oath, alleged a single act of child molestation (although he would later, in his pre-sentencing investigation interview, admit to at least two additional acts and describe the time frame in conflicting terms). The date of the act admitted to as part of the factual basis has not been established,” Bailey wrote. “The post-conviction court observed, ‘the time frame referenced was neither disputed nor in any way narrowed by the Petitioner.’ Thus, the implications as to a credit restriction have not been addressed. Simply, counsel did not anticipate, prepare for, or muster a challenge to the imposition of the credit restriction.”

Additionally, the appellate court found that the exhibits and argument presented at sentencing suggested that the timeframe might have been narrowed had testimony been elicited. Thus, in order to determine whether Hamilton was prejudiced by that omission, the appellate court remanded for additional sentencing proceedings consistent with its opinion.

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