                                                                              FILED
                                                                          Mar 06 2020, 8:52 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Chad A. Montgomery                                         Curtis T. Hill, Jr.
      Montgomery Law Office, LLC                                 Attorney General of Indiana
      Lafayette, Indiana                                         Tiffany A. McCoy
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Aaron B. Hoskins,                                          March 6, 2020
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 19A-CR-2387
              v.                                                 Appeal from the Warren Circuit
                                                                 Court
      State of Indiana,                                          The Honorable Hunter J. Reece,
      Appellee-Plaintiff.                                        Judge
                                                                 Trial Court Cause Nos.
                                                                 86C01-1606-F6-21
                                                                 86C01-1704-CM-39
                                                                 86C01-1909-F6-79



      Mathias, Judge.


[1]   Aaron B. Hoskins (“Hoskins”) appeals his conviction for Level 6 felony

      unlawful possession of a syringe in Cause No. 86C01-1909-F6-79 (“Cause No.

      F6-79”) and the revocation of his probation in Cause Nos. 86C01-1606-F6-21

      (“Cause No. F6-21”) and 86C01-1704-CM-39 (“Cause No. CM-39”). On
      Court of Appeals of Indiana | Opinion 19A-CR-2387 | March 6, 2020                           Page 1 of 8
      appeal, Hoskins argues that he did not knowingly and intelligently waive his

      right to counsel. Because Hoskins pleaded guilty, his claim cannot be raised on

      direct appeal and instead must be presented in a petition for post-conviction

      relief. We therefore dismiss Hoskins’s appeal.


                                  Facts and Procedural History
[2]   On June 2, 2016, the State charged Hoskins in Cause No. F6-21 with Level 6

      felony failure to return to lawful detention. On April 5, 2017, the State charged

      Hoskins in Cause No. CM-39 with Class B misdemeanor criminal mischief.

      Hoskins pleaded guilty in both of these causes on October 25, 2018, and was

      sentenced to 180 days of home detention and 719 days of probation.


[3]   On August 21, 2019, the State filed a petition to revoke Hoskins’s probation in

      the above causes, alleging that he had submitted a urine sample that tested

      positive for methamphetamine and amphetamine. The State filed an amended

      petition to revoke on September 12, 2019, alleging that Hoskins had been found

      in possession of a syringe and an alcoholic beverage and also had failed to

      report to probation as required. Then, on September 20, 2019, the State charged

      Hoskins with Level 6 felony unlawful possession of a syringe in Cause No. F6-

      79.


[4]   The trial court held an initial hearing in all of the above causes on September

      23, 2019. At this hearing, Hoskins stated that he was not under the influence of

      alcohol or any other drugs, that he spoke and understood the English language,

      and that he had graduated from high school. He also confirmed that he had

      Court of Appeals of Indiana | Opinion 19A-CR-2387 | March 6, 2020         Page 2 of 8
      read, signed, and understood the advisement of rights form given to him and

      that he understood the possible penalties he was facing. The trial court then

      advised Hoskins of his constitutional rights, including the right to a speedy and

      public trial by jury, the presumption of innocence and the burden of the State to

      prove his guilt beyond a reasonable doubt, the right to confront witnesses

      against him, the right to procure witnesses on his behalf, the right to remain

      silent, and the right to testify. The trial court also advised Hoskins that:


              You have the right to be represented by an attorney at each and
              every stage in the prosecution and throughout an appeal. If you
              desire an attorney but you can’t afford one the Court would
              appoint one for you at county expense. You have the right to
              appeal any guilty plea, verdict or sentence that may be imposed
              by the Court and to be represented by an attorney throughout the
              stages of an appeal. If you desired an attorney at the time of your
              appeal and could not afford one the Court would appoint one for
              you at county expense to assist you in your appeal.


      Tr. p 4. Hoskins indicated that he understood these rights.


[5]   Regarding representation by counsel, the following exchange between Hoskins

      and the trial court took place:


              THE COURT: Alright, so with respect to the petitions to revoke
              probation and the, well let’s begin first with the new criminal
              case. With respect to the new criminal case, do you intend to
              represent yourself on that matter, either trying to reach a
              resolution with the Prosecutor or presenting your case directly to
              the Court or do you intend to be represented by an attorney?




      Court of Appeals of Indiana | Opinion 19A-CR-2387 | March 6, 2020              Page 3 of 8
        DEFENDANT: Um, I would like to see about resolving it with
        the Prosecutor and see about doing house arrest or um work
        release on both of them.

        THE COURT: Alright, and is that the, your same intent on the
        petitions to revoke probation?

        DEFENDANT: Yes sir.

        THE COURT: Now you had initially on the petitions to revoke
        probation hired [private counsel] to represent you. Did his
        representation end in that case?

        DEFENDANT: I assume, I don’t know.

        THE COURT: Are you still paying him to represent you?

        DEFENDANT: No sir.

        THE COURT: Alright, do you want me to show his
        appointment concluded then?

        DEFENDANT: Yeah, I don’t need him, that’s fine.

        THE COURT: Alright, so we will show the appointment of
        [private counsel] terminated on Defendant’s request at this time.
        If you hire him and he starts appearing for you again we can
        always add him back into the case, but for right now we will
        show that you are going to represent yourself in both cases and
        try to negotiate a resolution with the Prosecutor and probation.
        We will take a short recess on your case, we have got another
        matter to take up and that will give the Prosecutor and probation
        a chance to talk to you and see if they can reach a resolution. I
        will advise you, you don’t have to reach any agreement with the
        Prosecutor, you can reject her offer, you can make a counter
        offer, provide any facts that are helpful to your case, um, you can
        reject her offer completely and present your arguments here in
        open Court, maybe I will do what she wants, maybe I will do
        what you want, maybe I will do something neither of you want
        or you can change your mind altogether and request an attorney.
Court of Appeals of Indiana | Opinion 19A-CR-2387 | March 6, 2020             Page 4 of 8
              If you cannot afford one you can ask me to appoint one for you,
              but if you do reach an agreement we should be able to wrap your
              case up today, ok?


      Id. at 6–7. The court then recessed to permit Hoskins, pro se, to negotiate with

      the prosecuting attorney.


[6]   When the trial court resumed the hearing, Hoskins indicated that he been

      unable to reach an agreement with the State and that he wanted to “leave it up

      to” the trial court. Id. at 7. The court clarified, “So you are going to plead open

      and leave it all up to me?” Id. Hoskins replied, “Yes sir.” Id. The court

      reiterated that Hoskins had numerous constitutional rights, including the right

      to counsel and that, by pleading guilty, he would waive these rights. Hoskins

      indicated that he understood this. See id. at 9–10. Hoskins then admitted to the

      facts alleged in the petitions to revoke and the charging information. The trial

      court found that there was an adequate factual basis to support Hoskins’s pleas,

      found that Hoskins had violated the terms of his probation in Cause Nos. F6-79

      and CM-39, and found him guilty in Cause No. F6-21. The trial court

      sentenced Hoskins to 730 days in Cause No. F6-21. The trial court revoked

      Hoskins’s probation in Cause No. F6-79 and ordered him to serve 730 days.

      The trial court extended Hoskins’s probation in Cause No. CM-39 by one year.

      The trial court also declared Hoskins eligible for the purposeful incarceration

      program. Hoskins now appeals.




      Court of Appeals of Indiana | Opinion 19A-CR-2387 | March 6, 2020           Page 5 of 8
                                      Discussion and Decision
[7]   Hoskins claims that he did not knowingly or intelligently waive his right to

      counsel. The State argues that Hoskins cannot bring this claim on direct appeal

      because he pleaded guilty. We agree with the State.


[8]   As we explained in Creekmore v. State:


              With limited exceptions, “a conviction based upon a guilty plea
              may not be challenged by . . . direct appeal.” Tumulty v. State, 666
              N.E.2d 394, 395 (Ind. 1996). The correct avenue for presenting
              such claims is post-conviction relief. Brightman v. State, 758
              N.E.2d 41 (Ind. 2001). Two exceptions to the prohibition on
              challenging a guilty plea on direct appeal have been recognized.
              First, a person who pleads guilty is entitled to contest on direct
              appeal the merits of a trial court’s sentencing decision where the
              trial court exercised sentencing discretion. Collins v. State, 817
              N.E.2d 230 (Ind. 2004). Further, a person who pleads guilty is
              entitled to contest on direct appeal the trial court’s discretion in
              denying withdrawal of the guilty plea prior to sentencing.
              Brightman v. State, 758 N.E.2d [at] 41.


      853 N.E.2d 523, 532–33 (Ind. Ct. App. 2006), clarified on denial of reh’g, 858

      N.E.2d 230; see also Huffman v. State, 822 N.E.2d 656, 660 (Ind. Ct. App. 2005)

      (applying Tumulty to defendant who pleaded guilty to probation violation then

      attacked validity of her plea on direct appeal); Ind. Post-Conviction Rule 1(a)(5)

      (“[a]ny person who has been convicted of, or sentenced for, a crime by a court

      of this state, and who claims . . . that . . . his probation, parole or conditional

      release [was] unlawfully revoked . . . may institute at any time a proceeding

      under this Rule to secure relief.”).


      Court of Appeals of Indiana | Opinion 19A-CR-2387 | March 6, 2020            Page 6 of 8
[9]    In Creekmore, the defendant pleaded guilty and claimed on direct appeal that he

       did not knowingly or intelligently waive his right to counsel. We concluded that

       “[t]he issue of whether Creekmore knowingly, voluntarily, and intelligently

       waived his right to counsel should be pursued by filing a petition for post-

       conviction relief.” Creekmore, 853 N.E.2d at 533. We therefore dismissed

       Creekmore’s appeal as to this issue.1 Id.


[10]   We reached the same conclusion in Crain v. State, 875 N.E.2d 446 (Ind. Ct.

       App. 2007). In that case, the defendant pleaded guilty and argued on direct

       appeal that his waiver of the right to counsel was not valid because the trial

       court did not sufficiently advise him of the advantages of being represented. We

       held that Crain’s argument regarding the waiver of his right to counsel must be

       presented in a petition for post-conviction relief, not on direct appeal. Id. at 447

       (citing Creekmore, 853 N.E.2d at 532). Because this was the only issue Crain

       raised on appeal, we dismissed. Id.


[11]   The same result obtains here. Hoskins pleaded guilty to both the new criminal

       offense and to the probation violations. His argument on appeal regarding his

       waiver of the right to counsel attacks not the trial court’s sentencing discretion,

       but the validity of his plea. His claim must therefore be presented by way of a

       petition for post-conviction relief. See Tumulty, 666 N.E.2d at 395–96; Crain,

       875 N.E.2d at 447; Creekmore, 853 N.E.2d at 532–33. Cf. Stamper v. State, 809



       1
        Creekmore also challenged the trial court’s sentencing decision in a number of ways, which arguments we
       addressed on the merits. Id. at 527–32.

       Court of Appeals of Indiana | Opinion 19A-CR-2387 | March 6, 2020                               Page 7 of 8
       N.E.2d 352, 354 (Ind. Ct. App. 2004) (holding that defendant who pleaded

       guilty could present a claim on direct appeal that he did not knowingly or

       intelligently waive his right to counsel at the sentencing hearing because this

       claim was an indirect attack on the trial court’s sentence and did not attack the

       validity of the guilty plea), disagreed with on other grounds by Henley v. State, 881

       N.E.2d 639, 647 n.6 (Ind. 2008).


                                                  Conclusion
[12]   Because Hoskins’s claim cannot be presented on direct appeal and must instead

       be presented in a petition for post-conviction relief, we dismiss this appeal

       without prejudice as to his ability to present this claim in a petition for post-

       conviction relief. See Huffman, 822 N.E.2d at 660 (holding that defendant who

       pleaded guilty to a probation violation could not raise claims on direct appeal

       attacking the validity of the plea and dismissing without prejudice as to her

       right to raise these issues in a subsequent post-conviction proceeding).


[13]   Dismissed.


       Kirsch, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-2387 | March 6, 2020              Page 8 of 8
