MEMORANDUM DECISION
                                                                  FILED
Pursuant to Ind. Appellate Rule 65(D),                       Sep 07 2016, 9:28 am
this Memorandum Decision shall not be
                                                                  CLERK
regarded as precedent or cited before any                     Indiana Supreme Court
                                                                 Court of Appeals
court except for the purpose of establishing                       and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Alan James Hoover                                        Gregory F. Zoeller
Pendleton, Indiana                                       Attorney General of Indiana

                                                         Karl M. Scharnberg
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Alan James Hoover,                                       September 7, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         55A01-1508-PC-1286
        v.                                               Appeal from the Morgan Circuit
                                                         Court
State of Indiana,                                        The Honorable Matthew Hanson,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         55C01-1506-PC-868



Altice, Judge.


                                         Case Summary




Court of Appeals of Indiana | Memorandum Decision 55A01-1508-PC-1286 | September 7, 2016   Page 1 of 6
[1]   Alan Hoover appeals from the denial of his petition for post-conviction relief.

      Hoover presents three issues for our review, one of which we find dispositive:

      Did the trial court abuse its discretion by summarily denying his petition for

      post-conviction relief (PCR petition) without a hearing?


[2]   We reverse and remand.


                                       Facts & Procedural History


[3]   On October 29, 2008, the State charged Hoover with murder, a felony, and

      aggravated battery, a Class B felony. On February 2, 2009, the State amended

      the charging information by replacing the aggravated battery count with felony

      murder, and adding a count for robbery as a Class A felony. A four-day jury

      trial commenced on March 23, 2009. The jury found Hoover guilty of robbery,

      acquitted him of murder, and was unable to reach a verdict as to felony murder.

      The trial court held a sentencing hearing on April 22, 2009, and sentenced

      Hoover to twenty-five years imprisonment. Hoover filed a notice of appeal the

      same day.


      On direct appeal, Hoover argued that (1) the acquittal on the murder charge

      and the inability of the jury to reach a decision on the felony murder charge

      rendered his conviction for robbery as a Class A felony inconsistent; (2) the

      evidence was insufficient to support his robbery conviction; (3) the trial court

      erred in instructing the jury on felony murder; (4) the trial court erred by not

      instructing the jury on the lesser offense of theft; and (5) double jeopardy

      principles prohibited retrial on felony murder. This court affirmed Hoover’s

      Court of Appeals of Indiana | Memorandum Decision 55A01-1508-PC-1286 | September 7, 2016   Page 2 of 6
      conviction for robbery and further concluded that Hoover could not be retried

      on the felony murder count. Hoover v. State, 918 N.E.2d 724 (Ind. Ct. App.

      2009), trans. denied.


[4]   On July 30, 2010, Hoover filed a PCR petition, which was withdrawn without

      prejudice on October 23, 2013. On June 5, 2015, Hoover, pro se, filed the

      instant PCR petition. Hoover raised four issues: (1) his appellate counsel1 was

      ineffective, (2) he was denied due process when the “self-defense absolving

      affects [were] not applied to all counts/elements”, (3) he was denied due

      process because he was not provided notice of the nature of the charges against

      him, and (4) his trial counsel was ineffective for failing to raise mitigating

      circumstances at sentencing. Appellant’s Appendix at 4. Pursuant to Hoover’s

      request, he was appointed a public defender. The State filed an answer to

      Hoover’s PCR petition generally denying the allegations therein. On July 30,

      2015, the public defender filed a notice of non-representation, asserting that

      Hoover’s claims were not meritorious or in the interest of justice. See Ind. Post-

      Conviction Rule 1(9)(c). The following day the trial court entered an order

      summarily denying Hoover’s PCR petition without a hearing. Hoover now

      appeals.


                                               Discussion & Decision




      1
          It appears that the same attorney represented Hoover at trial and on appeal.


      Court of Appeals of Indiana | Memorandum Decision 55A01-1508-PC-1286 | September 7, 2016   Page 3 of 6
[5]   Post-conviction proceedings afford petitioners a limited opportunity to raise

      issues that were unavailable or unknown at trial and on direct appeal. Conner v.

      State, 711 N.E.2d 1238, 1244 (Ind. 1999); see also Ind. Post-Conviction Rule

      1(1)(a). Such proceedings are not “super appeals” through which convicted

      persons can raise issues that they failed to raise at trial or on direct appeal.

      McCary v. State, 761 N.E.2d 389, 391 (Ind. 2002). Post-conviction proceedings

      are civil in nature, and petitioners bear the burden of proving their grounds for

      relief by a preponderance of the evidence. P-C.R. 1(5).


[6]   Post-Conviction Rule 1(4) provides two different subsections under which a

      post-conviction court may deny a petition without a hearing—subsection (f)

      and subsection (g). Subsection (f) provides that a post-conviction court “may

      deny the petition without further proceedings” if “the pleadings conclusively

      show that [the] petitioner is entitled to no relief [.]” Ind. Post–Conviction Rule

      1(4)(f). Subsection (g) provides that a post-conviction court:


              may grant a motion by either party for summary disposition of
              the petition when it appears from the pleadings, depositions,
              answers to interrogatories, admissions, stipulations of fact, and
              any affidavits submitted, that there is no genuine issue of
              material fact and the moving party is entitled to judgment as a
              matter of law.


      P-C.R. 1(4)(g). Disposal of a petition under each of these two subsections leads

      to a different standard of review on appeal. Allen v. State, 791 N.E.2d 748, 752

      (Ind. Ct. App. 2003), trans. denied.



      Court of Appeals of Indiana | Memorandum Decision 55A01-1508-PC-1286 | September 7, 2016   Page 4 of 6
      Here, there was no motion filed by either party requesting summary disposition.

      Rather, the day after the public defender filed its notice of non-participation, the

      trial court summarily denied Hoover’s PCR petition, finding that his requested

      relief was “not warranted.” Appellant’s Appendix at 22. Thus, the summary

      disposition in this case was pursuant to subsection (f).


[7]   When a court disposes of a petition under P-C.R. 1(4)(f), we essentially review

      the lower court’s decision as we would a motion for judgment on the pleadings.

      Allen, 791 N.E.2d at 752. The court errs in disposing of a petition in this

      manner unless “the pleadings conclusively show that petitioner is entitled to no

      relief.” P-C.R. 1(4)(f). If the petition alleges only errors of law, then the court

      may determine without a hearing whether the petitioner is entitled to relief on

      those questions. Allen, 791 N.E.2d at 753 (Clayton v. State, 673 N.E.2d 783, 785

      (Ind. Ct. App. 1996)). However, if the facts pled raise an issue of possible

      merit, then the petition should not be disposed of under section 4(f). Id. “This

      is true even though the petitioner has only a remote chance of establishing his

      claim.” Id. (quoting Clayton, 673 N.E.2d at 785).


[8]   It is well-settled that a post-conviction proceeding is generally the preferred

      forum for adjudicating claims of ineffective assistance of counsel because the

      presentation of such claims often requires the development of new evidence not

      present in the trial record. See Jewell v. State, 887 N.E.2d 939, 941-42 (Ind.

      2008); Woods v. State, 701 N.E.2d 1208, 1220 (Ind. 1998). Hoover asserted a




      Court of Appeals of Indiana | Memorandum Decision 55A01-1508-PC-1286 | September 7, 2016   Page 5 of 6
       claim of ineffective assistance of counsel.2 Although Hoover did not specifically

       delineate how his counsel was ineffective at this stage, his claim is not subject to

       summary denial without a hearing. Indeed, the pleading does not “conclusively

       show that [Hoover] is entitled to no relief.” See P-C.R. 1(4)(f). The trial court

       erred in denying Hoover’s PCR petition without a hearing. We therefore

       reverse the trial court’s order denying Hoover’s PCR petition and remand with

       instructions to conduct a hearing thereon.


[9]    We reverse and remand.


[10]   Bailey, J. and Bradford, J., concur.




       2
        Hoover presented other claims in his PCR petition, some of which may fall under his claim of ineffective
       assistance of appellate counsel.

       Court of Appeals of Indiana | Memorandum Decision 55A01-1508-PC-1286 | September 7, 2016         Page 6 of 6
