      MEMORANDUM DECISION
                                                                      Jul 16 2015, 8:26 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      John A. England                                           Gregory F. Zoeller
      Special Assistant to the Public Defender                  Attorney General of Indiana
      of Indiana
                                                                Ian McLean
      Indianapolis, Indiana
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Christopher W. Hovis,                                     July 16, 2015

      Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                92A03-1412-PC-418
              v.                                                Appeal from the Whitley Circuit
                                                                Court
      State of Indiana,                                         The Honorable James R. Heuer,
                                                                Judge
      Appellee-Respondent
                                                                Case No. 92C01-0212-FC-201




      Crone, Judge.


                                             Case Summary
[1]   Christopher W. Hovis appeals the postconviction court’s denial of his petition

      for postconviction relief. He challenges the postconviction court’s admission of

      certain exhibits and the voluntariness of his guilty plea on a habitual offender

      Court of Appeals of Indiana | Memorandum Decision 92A03-1412-PC-418| July 16, 2015      Page 1 of 11
      count. Finding that the exhibits were relevant and thus admissible and that his

      habitual offender guilty plea was not involuntarily made, we affirm.



                              Facts and Procedural History
[2]   The facts as summarized in an unpublished memorandum decision on Hovis’s

      second belated direct appeal are as follows:

              On July 9, 2002, Hovis, Ronrico Hatch (Hatch), James Piatt (Piatt),
              and two unnamed persons visited a cornfield in Whitley County,
              Indiana under the guise of locating marijuana in the cornfield.
              According to Hovis, Hatch and Piatt were involved in a dispute over
              marijuana money. While walking through the cornfield, Hatch fired
              several gunshots at Piatt, and Piatt shot Hatch once. Piatt was fatally
              wounded, and Hatch received a bullet wound in his abdomen. Hovis
              left Piatt’s body in the cornfield and took Hatch to a hospital, where he
              claimed that Hatch had been shot by an unknown person in Shoaff
              Park, located in Fort Wayne, Indiana.
              The following day, on July 10, 2002, Hovis and his brother took Piatt’s
              car and drove to Whitley County, where they set the car ablaze and
              destroyed it. On July 11, 2002, Hovis and his brother returned to the
              cornfield with the intention of killing Piatt if he were still alive. Piatt
              was dead when they found him, so they dragged his body further into
              the cornfield where it would not be visible from the road. Piatt’s body
              remained there for 47 days until it was discovered on August 25, 2002.
              At that point, Piatt’s body had decomposed to the extent that it could
              not be embalmed and Piatt's mother was unable to have an open
              casket for Piatt’s funeral. Piatt’s family searched the cornfield and
              found two pieces of Piatt’s braided hair, one of which was attached to
              part of Piatt’s skull.
              On December 19, 2002, the State filed an Information charging Hovis
              with Count I, assisting a criminal, a Class C felony, I.C. § 35-44-3-2;
              Count II, arson, a Class D felony, I.C. § 35-43-1-1(d); Count III,
              moving a body, a Class D felony, I.C. § 36-2-14-17(b); and Count IV,
              habitual offender. On January 2, 2003, the trial court held an initial
              hearing, at which point Hovis entered a plea of not guilty. On June 23,

      Court of Appeals of Indiana | Memorandum Decision 92A03-1412-PC-418| July 16, 2015   Page 2 of 11
              2003, Hovis filed a motion to withdraw his former plea of not guilty
              and to enter a plea of guilty to all Counts.

              On August 25, 2003, the trial court held a sentencing hearing and
              merged Hovis’ convictions for Counts II and III with Count I, finding
              that the same factual bases supported each conviction. [Hovis admitted
              to being a habitual offender.] The trial court sentenced Hovis to eight
              years for assisting a criminal, with an enhancement of twelve years for
              being an habitual offender. In total, Hovis received a sentence of 20
              years' incarceration in the Indiana Department of Correction, with no
              time suspended.
      Hovis v. State, No. 92A03-1011-CR-613 (Ind. Ct. App. Dec. 27, 2011).


[3]   With respect to the habitual offender count, a clerical error in the charging

      information misstated the sentencing year for the first predicate offense as 2001

      instead of 2000. Other evidence, including the presentence investigation report

      (“PSI”), showed that Hovis’s first predicate offense was a felony auto theft

      conviction (“Cause DF-25”) for which he was sentenced to one and a-half

      years’ probation on March 24, 2000. On or about May 11, 2000, he committed

      theft and was charged with three counts of class D felony theft (“Cause DF-

      617”). Because he was on probation when he committed theft, the State filed a

      petition to revoke his probation on August 2, 2000. On November 14, 2000,

      while the probation revocation was still pending in Cause DF-25, Hovis pled

      guilty and was convicted in Cause DF-617. On December 4, 2000, the trial

      court revoked Hovis’s probation in Cause DF-25 and remanded him to the

      Indiana Department of Correction (“DOC”). At the same hearing, the trial

      court sentenced him in Cause DF-617 to one year in the DOC, to be served

      consecutive to his sentence in Cause DF-25.


      Court of Appeals of Indiana | Memorandum Decision 92A03-1412-PC-418| July 16, 2015   Page 3 of 11
[4]   In January 2006, Hovis filed a petition for postconviction relief. He filed

      belated direct appeals in 2010 and 2011, the first of which was dismissed and

      the second of which resulted in the affirmance of his sentence. 1 In January

      2014, he filed an amended petition for postconviction relief, claiming that his

      guilty plea to the habitual offender count was not voluntarily entered.


[5]   At the May 2014 postconviction hearing, Hovis argued that the prosecutor

      misled him concerning his eligibility as a habitual offender. The State offered

      Postconviction (“PC”) Exhibits A through G over Hovis’s relevancy objections.

      These exhibits comprise copies of chronological case summaries (“CCS”),

      charging informations, probable cause affidavits, and sentencing orders from

      Causes CF-25 and CF-617. The postconviction court admitted the exhibits and

      took judicial notice of Hovis’s 2003 PSI. On August 7, 2014, the

      postconviction court issued its findings of facts and conclusions of law denying

      Hovis’s petition.


[6]   Hovis filed a motion to correct error and request for an evidentiary hearing. At

      the hearing, he introduced copies of DOC records concerning his commitments.

      The State was granted leave to file a written response, and the postconviction

      court subsequently denied Hovis’s motion to correct error. Hovis now appeals.

      Additional facts will be provided as necessary.




      1
        The sentencing issues raised in Hovis’s second belated direct appeal are distinct from the issues raised in
      this appeal.

      Court of Appeals of Indiana | Memorandum Decision 92A03-1412-PC-418| July 16, 2015                  Page 4 of 11
                                   Discussion and Decision
[7]   Hovis contends that the postconviction court erred in denying his petition for

      postconviction relief. The petitioner in a postconviction proceeding “bears the

      burden of establishing grounds for relief by a preponderance of the evidence.”

      Ind. Postconviction Rule 1(5); Passwater v. State, 989 N.E.2d 766, 770 (Ind.

      2013). When issuing its decision to grant or deny relief, the postconviction

      court must make findings of fact and conclusions of law. Ind. Postconviction

      Rule 1(6). A petitioner who appeals the denial of his postconviction petition

      faces a rigorous standard of review. Massey v. State, 955 N.E.2d 247, 253 (Ind.

      2011). In conducting our review, we neither reweigh evidence nor judge

      witness credibility; rather, we consider only the evidence and reasonable

      inferences most favorable to the judgment. McKnight v. State, 1 N.E.3d 193, 199

      (Ind. Ct. App. 2013), trans. denied (2014). “A post-conviction court’s findings

      and judgment will be reversed only upon a showing of clear error—that which

      leaves us with a definite and firm conviction that a mistake has been made.”

      Passwater, 989 N.E.2d at 770 (citation and quotation marks omitted). In other

      words, if a postconviction petitioner was denied relief in the proceedings below,

      he must show that the evidence as a whole leads unerringly and unmistakably

      to a conclusion opposite the one reached by the postconviction court. Massey,

      955 N.E.2d at 253. Postconviction relief does not offer the petitioner a super

      appeal; rather, subsequent collateral challenges must be based on grounds

      enumerated in the postconviction rules. McKnight, 1 N.E.3d at 199. These




      Court of Appeals of Indiana | Memorandum Decision 92A03-1412-PC-418| July 16, 2015   Page 5 of 11
       rules limit the scope of relief to issues unknown or unavailable to the petitioner

       on direct appeal. Id.


         Section 1 – The postconviction court acted within its
        discretion in admitting State’s Postconviction Exhibits
                             A through G.
[8]    Hovis challenges the postconviction court’s admission of State’s PC Exhibits A

       through G. We review a postconviction court’s ruling on the admissibility of

       evidence for an abuse of discretion. Badelle v. State, 754 N.E.2d 510, 521 (Ind.

       Ct. App. 2001), trans. denied. An abuse of discretion occurs where the trial

       court’s decision is clearly against the logic and effect of the facts and

       circumstances before it. Members v. State, 857 N.E.2d 1019, 1021 (Ind. Ct. App.

       2006).


[9]    Hovis maintains that the State’s PC Exhibits A through G were inadmissible on

       relevancy grounds. See Ind. Evidence Rule 402 (“Evidence which is not

       relevant is not admissible.”). Indiana Evidence Rule 401 defines relevant

       evidence as “evidence having any tendency to make the existence of any fact

       that is of consequence to the determination of the action more probable or less

       probable than it would be without the evidence.”


[10]   With respect to the relevancy of the challenged exhibits, the postconviction

       court found that “State’s Exhibits A through G clearly establish that

       Christopher W. Hovis was an Habitual Felony Offender when he was

       sentenced, herein, on August 25, 2003, pursuant to his guilty plea.” Appellant’s

       Court of Appeals of Indiana | Memorandum Decision 92A03-1412-PC-418| July 16, 2015   Page 6 of 11
       App. at 141. State’s PC Exhibits A through C consist of the CCS, probable

       cause affidavit, and guilty plea and sentencing transcripts respectively, all for

       Cause DF-25. State’s PC Exhibits D through G consist of the CCS, charging

       information, probable cause affidavit, and judgment of conviction respectively,

       all for Cause DF-617. Exhibit D is highly probative as it explains Hovis’s

       assertion that he remembered being sentenced for Causes DF-25 and DF-617 at

       the same time by the same judge, “right around Christmas.” Tr. at 12. This

       exhibit, comprising the CCS for Cause DF-617, shows that on December 4,

       2000, the trial court imposed sentence on Cause DF-617. At that time, the trial

       court (and CCS) did reference Cause DF-25 because Hovis had previously been

       sentenced to probation in that case and had violated that probation and been

       remanded to the DOC. Thus, the trial court simply ruled that Hovis’s sentence

       for Cause DF-617 would run consecutive to his reinstated sentence for Cause

       DF-25 following his probation revocation. As such, Hovis’s recollection of

       simultaneous sentencing in Causes DF-25 and DF-617 is inaccurate.


[11]   Considered individually and together, State’s PC Exhibits A through G contain

       dates and other information relevant to establishing the substance and sequence

       of Hovis’s prior unrelated felony convictions as required under the habitual

       offender statute. Ind. Code § 35-50-2-8(c). Thus, the exhibits were not

       inadmissible on relevancy grounds. Based on the foregoing, we conclude that

       the postconviction court did not abuse its discretion in admitting them.




       Court of Appeals of Indiana | Memorandum Decision 92A03-1412-PC-418| July 16, 2015   Page 7 of 11
       Section 2 – The postconviction court did not clearly err
        in denying Hovis’s petition for postconviction relief.
[12]   Hovis contends that the trial court clearly erred in finding that he had failed to

       meet his burden of establishing grounds for postconviction relief. His sole

       contention is that his plea of guilty to the habitual offender charge was not

       voluntarily made but was the result of allegedly misleading conduct by the

       prosecutor. “Pleas entered after coercion, judicial or otherwise, will be set

       aside. Defendants who can prove that they were actually misled by the judge,

       the prosecutor, or defense counsel about the choices before them will present

       colorable claims for relief.” White v. State, 497 N.E.2d 893, 905-06 (Ind. 1986).


[13]   Indiana Code Section 35-50-2-8 (2001) outlines the requirements for a habitual

       offender count in pertinent part as follows:

               (a) Except as otherwise provided in this section, the state may seek to
               have a person sentenced as a habitual offender for any felony by
               alleging, on a page separate from the rest of the charging instrument,
               that the person has accumulated two (2) prior unrelated felony
               convictions.
               ….

               (c) A person has accumulated two (2) prior unrelated felony
               convictions for purposes of this section only if:


                        (1) the second prior unrelated felony conviction was
                        committed after sentencing for the first prior unrelated felony
                        conviction; and

                        (2) the offense for which the state seeks to have the person
                        sentenced as a habitual offender was committed after


       Court of Appeals of Indiana | Memorandum Decision 92A03-1412-PC-418| July 16, 2015   Page 8 of 11
                        sentencing for the second prior unrelated felony conviction.


[14]   In its order denying Hovis’s petition for postconviction relief, the

       postconviction court found as follows with respect to the habitual offender

       count:

                4. The information for Habitual Felony Offender filed on December
                19, 2002, contains a clerical error in that the sentencing date of the first
                felony conviction alleges “the 24th day of March, 2001,” and the
                correct date is the “24th da[y] of March, 2000.”

                5. State’s Exhibits A through G clearly establish that Christopher W.
                Hovis was an Habitual Felony Offender when he was sentenced,
                herein, on August 25, 2003, pursuant to his guilty plea.

                6. Weatherford v. State[,] 619 N.E.2d 915 (Ind. 1993) is applicable to
                this proceeding.

                7. The Petitioner was not “misled” by the State as a result of the
                clerical error.


       Appellant’s App. at 140-41.


[15]   In Weatherford, our supreme court explained that in postconviction cases, “[w]e

       have considered possible defects in habitual offender proofs as ‘fundamental

       error’ such that they may be raised notwithstanding failure to do so on direct

       appeal. Where we have granted relief, however, the evidence has demonstrated

       that the commission/conviction/sentencing were not in the proper order.” 619

       N.E.2d at 917 (emphasis added). The Weatherford court emphasized that a

       postconviction petitioner “must demonstrate that his various convictions did

       not in fact occur in the required order.” Id. at 918.

       Court of Appeals of Indiana | Memorandum Decision 92A03-1412-PC-418| July 16, 2015   Page 9 of 11
[16]   Here, the habitual offender information contained a typographical error, listing

       the sentencing year for the first predicate offense as 2001 rather than 2000,

       therefore taking it out of sequence. The prosecutor read the information aloud

       in court, complete with error, and Hovis admitted that he was a habitual

       offender. Hovis now claims that this conduct misled him “regarding his

       eligibility for habitual offender status” and thus induced him to enter a coerced,

       involuntary guilty plea. Reply Br. at 2. We fail to see how. If the sentencing

       date listed in the information for Cause DF-25 had appeared to be in sequence

       when it actually was not, then his claim would have merit. Here, however, the

       reverse occurred. The information contained a date that was clearly out of

       sequence and which, if true, would have invalidated the habitual offender

       count. If anything, the clerical error and prosecutor’s examination of him using

       the erroneous date would have given him the false hope that he did not qualify

       as a habitual offender. In contrast, the PSI clearly outlines the correct sequence

       of the commission, conviction, and sentencing for his predicate offenses, and

       Hovis admitted to the trial court at sentencing that he had read and reviewed

       the PSI. Petitioner’s Ex. 3. The only concerns that Hovis raised as to the

       accuracy of the information contained in the PSI concerned a pending criminal

       charge in Allen County. Id. at 16.


[17]   In short, Hovis’s prior unrelated felonies and sentencing dates were, in fact, in

       the proper sequence, and he has failed to establish that the State used the

       clerical error in the information to induce him to enter a guilty plea that he

       otherwise would not have entered. As such, he has failed to establish clear


       Court of Appeals of Indiana | Memorandum Decision 92A03-1412-PC-418| July 16, 2015   Page 10 of 11
       error in the postconviction court’s finding that he was not misled into pleading

       guilty to the habitual offender count. Consequently, we affirm.


[18]   Affirmed.


       Brown, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 92A03-1412-PC-418| July 16, 2015   Page 11 of 11
