                                                                          FILED
                                                                     Mar 21 2019, 9:15 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Stephen T. Owens                                           Curtis T. Hill, Jr.
Public Defender of Indiana                                 Attorney General of Indiana
Hope Fey                                                   J.T. Whitehead
Deputy Public Defender                                     Deputy Attorney General
Indianapolis, Indiana                                      Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

David Hooker,                                              March 21, 2019
Appellant-Petitioner,                                      Court of Appeals Case No.
                                                           18A-PC-2318
        v.                                                 Appeal from the Vanderburgh
                                                           Circuit Court
State of Indiana,                                          The Hon. David D. Kiely, Judge
Appellee-Respondent.                                       The Hon. Kelli E. Fink, Magistrate
                                                           Trial Court Cause No.
                                                           82C01-0812-PC-18



Bradford, Judge.




Court of Appeals of Indiana | Opinion 18A-PC-2318 | March 21, 2019                            Page 1 of 18
                                           Case Summary
[1]   In October of 2001, the State entered into a plea agreement with David Hooker,

      pursuant to which he would plead guilty to Class C felony burglary. At the

      change-of-plea hearing, while Hooker denied having to push the already-open

      door to gain entry to the residence in question, he did admit that he had

      squeezed through the opening. The trial court accepted Hooker’s guilty plea.

      In 2017, Hooker filed an amended petition for post-conviction relief (“PCR”) in

      which he claimed that the trial court erred in accepting his guilty plea because

      he had denied his guilt at the hearing. The post-conviction court concluded that

      Hooked had not simultaneously maintained his innocence when he pled guilty

      to Class C felony burglary and denied his PCR petition. Hooker contends that

      the post-conviction court’s conclusion is clearly erroneous. Because we

      disagree, we affirm.


                             Facts and Procedural History
[2]   On October 1, 2001, the State charged Hooker with Class B felony burglary and

      Class D felony theft. Hooker and the State reached a plea agreement pursuant

      to which Hooker would plead guilty to Class C felony burglary in exchange for

      dismissal of the theft charge. At the time, Indiana Code section 35-43-2-1

      provided that “[a] person who breaks and enters the building or structure of

      another person, with intent to commit a felony in it, commits burglary, a Class

      C felony.”




      Court of Appeals of Indiana | Opinion 18A-PC-2318 | March 21, 2019       Page 2 of 18
[3]   A change-of-plea hearing was held on November 2, 2001. Then-Judge pro

      tempore Kelli Fink asked Hooker, “[D]id you break and enter a building that

      was owned by [Z.M.]?”, to which Hooker replied, “[y]es.” Prior App. p. 12.1

      When Judge Fink asked Hooker again whether he had broken into the building,

      Hooker’s counsel interjected that Hooker “would not say he broke into the

      building” but that counsel’s “understanding of the law is that you do not have

      to break into the building [and] if he was in a building with the intention to

      commit a felony, that is sufficient.” Prior App. p. 13. The following exchange

      occurred:

                    [The State]:       He may have used some force to gain
              entry which might have been as simple as pushing a door open
              which was closed.
                     [Judge Fink]:                Right. How did he gain entry into the
              building?
                       [Hooker’s counsel]: You went through a door, right?
                       [Hooker]:                  Yeah
                       [Judge Fink]:              Did you go through a door?
                       [Hooker]:                  Yes.
                       [Judge Fink]:              Did you push the door open?
                       [Hooker]:                  It was …
                       [Hooker’s counsel]: It was open wasn’t it?
                       [Judge Fink]:              Did you push the …




      1
        The appellate record includes a scanned appendix from a previous appeal, which contains the transcripts
      from the change-of-plea and sentencing hearings. We shall refer to this document as “Prior App.” and cite to
      the handwritten page numbers therein.

      Court of Appeals of Indiana | Opinion 18A-PC-2318 | March 21, 2019                              Page 3 of 18
                    [Hooker]:          No, it was open. It had a box that was
              against the door. The door thing was open, it had a box against
              and some kind of metal thing was behind the door, I don’t …
                    [Judge Fink]:       Okay, did you have to physically touch
              the door and push it open in order to …
                       [Hooker]:                 No.
                       [Judge Fink]:             … gain entry?
                    [Hooker]:           No, it was already open. Now I
              moved by the door. I remember the door was … you’ve got to
              squeeze through there to get in.
      Prior App. pp. 13–14.


[4]   Counsel requested a recess, and, when the hearing resumed, Hooker said that

      he wanted to plead guilty. The State read the factual basis into the record,

      followed by more discussion between Hooker and Judge Fink:

                      [The State]:        Your Honor, if this were to proceed at
              trial the State would call the owner of the residence, or the renter
              of the residence who had a contractual interest in it, a woman by
              the name of [Z.M.] and she’d testify that she was moving out,
              had left some items in the house behind and the State believes
              that she would testify that the door was closed when she left the
              residence at the last time she was there. The State would also
              call a witness by the name of David Mills who lived across the
              street from the burglarized residence and he would testify that at
              approximately 11:00 when he went to bed he didn’t notice
              anything unusual about the residence, but at 1:00 to 1:30 in the
              morning he heard some dogs barking and his own dogs were
              indicating something was unusual going on. He looked out and
              saw that the house at 1607 Evans, the door was open and that
              there was a red car parked in the alley way there that had not
              been there earlier at 11:00 when he went to bed. He also saw a
              set of hands that were reaching out through the opened rear door
              stacking items on the back porch and he contacted the police.
      Court of Appeals of Indiana | Opinion 18A-PC-2318 | March 21, 2019         Page 4 of 18
        When the police arrived, Officers Hoehn and several other
        officers with the Evansville Police Department arrived, looked
        around the residence, didn’t have any luck or get any response
        and the officer finally entered through the back of the house and
        called out and the defendant finally did come out from inside the
        residence, and that’s where he was located when officers arrived.
        The State heard and the Court heard the statements by the
        defendant earlier, and through the case law I believe the Court
        can establish a factual basis through the statements having been
        given by the defendant. He indicated that he did have to squeeze
        in to get into the residence. [….] He did place himself in a
        position to commit a felony inside. He did commit the entering
        element. He did ... he was found inside. He did indicate earlier
        that he was inside the residence and he did in fact commit a
        felony by committing theft. Several items that were originally
        inside the house including a circular saw, some stereo equipment
        and an area rug were found inside the defendant’s vehicle which
        was parked in the alleyway outside the house to show the
        element of theft.
                 [….]
               [Judge Fink]:       The agreement [is] that you plead
        guilty to Burglary as a Class C felony, which means you did
        break and enter the building and […] structure on October 8th,
        2001 […] with the intent to commit a felony therein, to-wit Theft,
        contrary to Indiana law. Do you understand that’s a lesser
        included offense of Burglary a C felony that I’ve read to you?
                 [Hooker]:                 Yes.
              [Judge Fink]:                Do you want to plead guilty to that
        offense?
                 [Hooker]:                 Yeah.
               [Judge Fink]:       Now, based on the evidence that the
        State has read to you, do you still want to plead guilty to that
        offense?
                 [Hooker]:                 Ain’t got no choice, yeah. Yes.

Court of Appeals of Indiana | Opinion 18A-PC-2318 | March 21, 2019               Page 5 of 18
                [Judge Fink]:      Well, you always have a choice, Mr.
        Hooker, and that’s what’s very important for you to understand
        is that you have a choice and we can go to trial Monday if you
        want to.
                 [Hooker]:                 I have a choice, but yes I’ll take it.
               [Hooker’s counsel]: Well, are you aware Mr. Hooker that
        I’m prepared to go to trial on Monday? You know, I’ve met with
        the witnesses, I’m prepared to go. I’m not necessarily
        recommending that[,] but you need to understand that I’m ready
        to go on Monday.
                 [Hooker]:                 I understand.
              [Judge Fink]:        And that as I have explained to you
        and the State of Indiana, they’re not going to allow you to take a
        plea negotiation and deny that you did these things, do you
        understand?
                 [Hooker]:                 Yes.
               [Judge Fink]:               And if you are innocent you should
        say that and go to trial.
               [Hooker]:         But if I did that still if I get hit, I […]
        ma’am, that’s twenty-three years I’d be facing. I’ll take this. I’ll
        take this.
             [Judge Fink]:        Well, what’s very important, sir, is
        whether or not you committed the offense. Do you believe you
        committed the offense of Burglary, a Class C felony?
                 [Hooker]:                 Somewhat yes.
                 [Judge Fink]:             Okay, what was …
                 [Hooker]:                 I … I did it. I done that.
              [Judge Fink]:       I don’t want you to plead guilty to
        anything that you don’t believe you’re guilty of, okay?
                 [Hooker]:                 If I …
              [Judge Fink]:       If you’re innocent of something then I
        don’t want to take your plea.

Court of Appeals of Indiana | Opinion 18A-PC-2318 | March 21, 2019                  Page 6 of 18
             [Hooker]:             Ma’am, if I was innocent it wouldn’t
        make a difference now because of what he has it doesn’t matter, I
        would still be found guilty, so I …
              [Judge Fink]:                But I did not … I cannot accept your
        plea …
                 [Hooker]:                 I’m saying I did it.
            [Judge Fink]:                  … unless you admit that you
        committed the offense.
                 [Hooker]:                 I did it, ma’am.
               [Judge Fink]:       You want to admit that you committed
        the offense of Burglary as a Class C felony?
                 [Hooker]:                 Yes.
               [Judge Fink]:               And you’ve heard the facts from the
        State of Indiana?
                 [Hooker]:                 Yes.
               [Judge Fink]:               Do you have any comments regarding
        those facts?
                 [Hooker]:                 No ma’am.
                 [Judge Fink]:             Anything else, [State]?
                 [The State]:              No ma’am.
             [Judge Fink]:                 This happened here in Vanderburgh
        County?
                 [Hooker]:                 Excuse me?
             [Judge Fink]:       Vanderburgh … happened in
        Vanderburgh County, is that correct?
                 [Hooker]:                 Yes ma’am.
                 [Judge Fink]:             And the State of Indiana?
                 [Hooker]:                 Yes ma’am.
               [Judge Fink]:        And do you admit that you were in
        that residence in order to commit the crime of theft?

Court of Appeals of Indiana | Opinion 18A-PC-2318 | March 21, 2019                Page 7 of 18
                         [Hooker]:               Yes I was.
                     [Judge Fink]:        Show the Court at this time finds a
              factual basis for Count I, actually the lesser[–]included offense of
              Count I Burglary, a Class C felony.
      Prior App. pp. 15–17, 18–21. Judge Fink advised Hooker of his rights and set

      the matter for a sentencing hearing on December 5, 2001.


[5]   At the December 5 hearing, then-Magistrate David Kiely engaged in the

      following exchange:

                     [Hooker]:              Okay, now starting out, as far as this
              incident is concerned, initially, I want you to know that initially I
              didn’t go there to rob these people or steal anything from them, I
              went there because me and [the person to whom I am engaged],
              we were looking for a house for us and the kids and I didn’t
              break in either as far as kick any doors in or anything of that
              nature, and we’re talking about a house that was for rent, it was
              advertised in the paper, I have the article here if you would like
              to see it, I have the article for the day before of which we got it
              out of the paper, okay, that’s how I found out about the house.
                         [Magistrate Kiely]: You opened the door?
                         [Hooker]:               No, it was open.
                     [Magistrate Kiely]: Now, […] you were in front of Judge
              [Fink ] and [s]he found a factual basis or you admitted to him
                     2


              that you committed this crime?
                         [Hooker]:               I’m saying I did it, but what I’m saying
              is …
                    [Magistrate Kiely]: Well, you didn’t tell [her] that the door
              was open and you walked in?



      2
        Magistrate Kiely was apparently under the mistaken impression that it was Judge Carl Heldt who had
      conducted the change-of-plea hearing.

      Court of Appeals of Indiana | Opinion 18A-PC-2318 | March 21, 2019                           Page 8 of 18
                    [Hooker’s counsel]: You know, we had a mess on this
              thing when we did the factual basis[.]
                       [….]
                       [Magistrate Kiely]: I’m going to let [the other judge] do
              this.
                       [Hooker’s counsel]: That’s what I thought.
                     [Magistrate Kiely]: Because [s]he found the factual basis, I
              don’t believe you committed burglary unless you opened that
              door someway [sic] or pushed it open, so I’m going to let [the
              other judge] handle that.
      Prior App. pp. 35–37.


[6]   At the continued sentencing hearing later that month, there was no further

      inquiry concerning the factual basis or the plea of guilty. Judge Carl Heldt

      noted that he had reviewed the presentence investigation report and was

      “accept[ing] the parties’ plea agreement, accept[ing] the Defendant’s plea of

      guilty, and enter[ing] a judgment of conviction under Count I, to Burglary, as a

      Class C felony.” Prior App. p. 42. Judge Heldt sentenced Hooker to four years

      of incarceration.

[7]   On May 9, 2003, Hooker filed a pro se PCR petition, a petition he withdrew

      later that year. On December 18, 2008, Hooker filed another pro se PCR

      petition. On October 21, 2013, Hooker moved to withdraw his plea, which

      motion the trial court denied later that month. We affirmed the denial of the

      motion. See Hooker v. State, No. 82A01-1311-CR-523 (Ind. Ct. App. Sept. 3,

      2014), trans. denied. While Hooker was pursing his appeal, the post-conviction




      Court of Appeals of Indiana | Opinion 18A-PC-2318 | March 21, 2019           Page 9 of 18
      proceeding had been stayed. The post-conviction proceeding resumed

      following Hooker’s unsuccessful appeal.

[8]   In late 2017, Hooker’s PCR petition was amended to seek relief on the basis

      that the trial court had improperly accepted an unreliable plea. The State

      answered, denying the allegations and asserting that the amended PCR petition

      was barred by waiver, prior adjudication, laches, res judicata, collateral

      estoppel, and law of the case. On August 29, 2018, the post-conviction court,

      in an order prepared by now-Magistrate Fink and approved by now-Judge

      Kiely, denied Hooker’s PCR petition.


                                  Discussion and Decision                               3




[9]   In post-conviction matters, “[t]he petitioner has the burden of establishing his

      grounds for relief by a preponderance of the evidence.” Ind. Post-Conviction

      Rule 1(5); see also Ind. Code § 35-35-1-4(e) (identifying this burden of proof for

      post-sentencing matters regarding the withdrawal of a plea of guilty). Thus,

      when a petitioner is appealing the denial of his petition for post-conviction

      relief, he appeals from a negative judgment. Humphrey v. State, 73 N.E.3d 677,

      681 (Ind. 2017). A party appealing from a negative judgment must show that

      the evidence leads unerringly and unmistakably to an opposite conclusion. Id.

      In conducting our review, we “shall not set aside the findings or judgment



      3
        The State argues that Hooker’s claim in this proceeding is barred by the doctrines of waiver, res judicata,
      and laches. In light of our “marked preference for deciding disputes on their merits and for giving parties
      their day in court[,]” Butler v. State, 933 N.E.2d 33, 36 (Ind. Ct. App. 2010) (citation omitted), and in the
      interest of heading off potential future litigation, we choose to address the merits of Hooker’s claim.

      Court of Appeals of Indiana | Opinion 18A-PC-2318 | March 21, 2019                                Page 10 of 18
       unless clearly erroneous,” and shall give “due regard” to the opportunity of the

       post-conviction court to judge the credibility of witnesses. Ind. Trial Rule

       52(A); see P-C.R. 1(6) (requiring “specific findings of fact, and conclusions of

       law on all issues presented”). Put differently, “we do not defer to the post-

       conviction court’s legal conclusions” but will reverse its findings and judgment

       only upon a showing of clear error, or that which leaves us with a definite and

       firm conviction that a mistake has been made. Humphrey, 73 N.E.3d at 682.

[10]   Hooker is essentially attempting to withdraw the guilty plea to Class C felony

       burglary that the trial court accepted and for which it sentenced him in 2001.

       Indiana Code Section 35-35-1-4(b) provides as follows:

               After being sentenced following a plea of guilty, or guilty but
               mentally ill at the time of the crime, the convicted person may not
               as a matter of right withdraw the plea. However, upon motion of
               the convicted person, the court shall vacate the judgment and
               allow the withdrawal whenever the convicted person proves that
               withdrawal is necessary to correct a manifest injustice. A motion
               to vacate judgment and withdraw the plea made under this
               subsection shall be treated by the court as a petition for
               postconviction relief under the Indiana Rules of Procedure for
               Postconviction Remedies. For purposes of this section,
               withdrawal of the plea is necessary to correct a manifest injustice
               whenever […] the plea was not entered or ratified by the convicted
               person[.]
[11]   “[A]n Indiana trial court may not accept a guilty plea that is accompanied by a

       denial of guilt.” Carter v. State, 739 N.E.2d 126, 129 (Ind. 2000).

               [A] plea of guilty tendered by one who in the same breath protests
               his innocence, or declares he actually does not know whether or
               not he is guilty, is no plea at all. Certainly it is not a sufficient plea
               upon which to base a judgment of conviction. No plea of guilty
       Court of Appeals of Indiana | Opinion 18A-PC-2318 | March 21, 2019            Page 11 of 18
               should be accepted when it appears to be doubtful whether it is
               being intelligently and understandingly made, or when it appears
               that, for any reason, the plea is wholly inconsistent with the
               realities of the situation.
       Harshman v. State, 232 Ind. 618, 621, 115 N.E.2d 501, 502 (1953). Before a trial

       court may accept a plea of guilty, the defendant must tender a reliable

       admission of guilt. Ellis v. State, 67 N.E.3d 643, 650–51 (Ind. 2017). If a trial

       court accepts an unreliable plea, the court commits reversible error, Ross v. State,

       456 N.E.2d 420, 423 (Ind. 1983), providing a proper basis for PCR. See Ellis, 67

       N.E.3d at 646.


[12]   Hooker challenges the acceptance of his plea of guilty to burglary, an offense

       that contains the element of “breaking,” Ind. Code § 35-43-2-1, the element

       Hooker claims he failed to admit. Under the circumstances of this case, we

       conclude that Hooker’s equivocation at his guilty plea hearing did not amount

       to a denial of breaking into Z.M.’s residence. First, nothing Hooker said at any

       point amounted to an actual denial of breaking. While it is well-established

       that “[w]alking through an open door does not constitute a ‘breaking’ as such

       element is known in the crime of burglary[,]” Cockerham v. State, 246 Ind. 303,

       307, 204 N.E.2d 654, 657 (1965), this is not what Hooker claimed to have done.

       Hooker admitted that he had to “squeeze” through an opening to enter the

       residence, and “[a] ‘breaking’ is established when even the slightest force is used

       to gain unauthorized entry[.]” Trice v. State, 490 N.E.2d 757, 758–59 (Ind.

       1986). At most, Hooker indicated that he did not have to push the door open,

       which still does not take him where he needs to go. Even if we assume that the


       Court of Appeals of Indiana | Opinion 18A-PC-2318 | March 21, 2019        Page 12 of 18
       partially-open door did not move at all when Hooker squeezed through it, force

       was nonetheless used. See McCovens v. State, 539 N.E.2d 26, 29 (Ind. 1989)

       (“Appellant committed a “breaking” when he either climbed over [a fence] or

       squeezed through its sections.”).

[13]   Moreover, when the trial court asked Hooker to agree to a factual basis

       establishing the element of breaking and acknowledge his guilt, he did. After

       the State read the factual basis into the record, which indicated that Z.M. had

       closed the door before leaving her residence, Hooker indicated that he wanted

       to plead guilty. When Judge Fink asked Hooker if he believed that he had

       committed burglary, he first replied “[s]omewhat yes” before admitting that “I

       did it” when asked to clarify. Prior App. p. 20. Hooker indicated twice more

       that he “did it” and that he wanted to admit that he had committed burglary.

       Prior App. p. 20. Hooker also did not dispute the accuracy of the State’s factual

       basis when asked. While Hooker seemingly wanted it known that he had not

       violently broken into Z.M.’s residence (by kicking in a door or the like), Hooker

       did not actually ever deny committing actions that qualify as breaking. Because

       this is not a case in which the trial court accepted a guilty plea while Hooker

       was simultaneously maintaining his innocence, he has failed to establish that

       the post-conviction court’s judgment is clearly erroneous.

[14]   The judgment of the post-conviction court is affirmed.


       Brown, J., concurs.


       Bailey, J., dissents with opinion.

       Court of Appeals of Indiana | Opinion 18A-PC-2318 | March 21, 2019      Page 13 of 18
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       David Hooker,                                              Court of Appeals Case No.
                                                                  18A-PC-2318
       Appellant-Petitioner,

               v.

       State of Indiana,
       Appellee-Respondent.




       Bailey, Judge, dissenting.


[15]   I respectfully dissent. Indiana courts have broad discretion to reject a plea of

       guilty. Ind. Code § 35-35-3-3(b); Pannarale v. State, 638 N.E.2d 1247, 1248 (Ind.

       1994). However, when a trial court chooses to accept a proffered plea, the trial

       court is constrained to accept only a reliable plea of guilty. See Ellis v. State, 67

       N.E.3d 643, 650-51 (Ind. 2017). Should a court accept an unreliable plea, the

       defendant may file a petition for post-conviction relief, challenging acceptance.

       I.C. § 35-35-1-4(c); Ellis, 67 N.E.3d at 651. In doing so, the defendant need

       only show—by a preponderance of the evidence—that the court accepted an

       unreliable plea. See Ind. Post-Conviction Rule 1(5); see also I.C. § 35-35-1-4(e).



       Court of Appeals of Indiana | Opinion 18A-PC-2318 | March 21, 2019                     Page 14 of 18
[16]   A plea of guilty is rendered unreliable if “the defendant protests his innocence

       while simultaneously attempting to enter the plea.” Ellis, 67 N.E.3d at 646.

       Moreover, if a defendant disputes even a single element of an offense, the trial

       court should regard the defendant’s statements as a protestation of innocence.

       See id. at 650-51. Indeed, courts “cannot ignore such repudiations even though

       the defendant contributed to his own demise by pleading guilty.” Id. at 651.

       Ultimately, “as a matter of law, ‘a judge may not accept a plea of guilty when

       the defendant both pleads guilty and maintains his innocence at the same

       time.’” Id. at 646 (quoting Ross v. State, 456 N.E.2d 420, 423 (Ind. 1983)).


[17]   The offense of Burglary contains an element of “breaking,” I.C. § 35-43-2-1—an

       element satisfied by even the slightest use of force, see Trice v. State, 490 N.E.2d

       757, 758-59 (Ind. 1986). Our supreme court long ago held that “[w]alking

       through an open door does not constitute a ‘breaking’” for the offense of

       Burglary. Cockerham v. State, 246 Ind. 303, 204 N.E.2d 654, 657 (1965).


[18]   At his plea hearing, Hooker attempted to plead guilty to Burglary—yet, he also

       asserted that he had “moved by” and “squeez[ed] through” a propped-open

       door. Prior App. at 11-12. The majority minimizes Hooker’s statements:


               [N]othing Hooker said at any point amounted to an actual denial
               of breaking. . . . At most, Hooker indicated that he did not have
               to push the door open, which still does not take him where he
               needs to go. Even if we assume that the partially-open door did
               not move at all when Hooker squeezed through it, force was
               nonetheless used. . . . Hooker did not actually ever deny
               committing actions that qualify as breaking.


       Court of Appeals of Indiana | Opinion 18A-PC-2318 | March 21, 2019         Page 15 of 18
       Slip op. at 12-13. It seems the majority is faulting Hooker for imprecision—in

       that “squeezing” through a doorway could have involved some force against the

       door or the frame. Thus, according to the majority, Hooker never really

       disputed any element.4 Yet, Indiana law holds trial courts—not defendants—

       accountable for scrutinizing guilty pleas prior to acceptance. See Patton v. State,

       517 N.E.2d 374, 375 (Ind. 1987) (“[G]uilty pleas should be cautiously received.

       The more serious the offense, the more cautious a trial court should be.”). This

       rule was “designed to heighten the reliability of the guilty plea.” Trueblood v.

       State, 587 N.E.2d 105, 107 (Ind. 1992). This rule also avoids a practice that

       would “diminish respect” for courts: “conviction and sentencing without trial of

       citizens who tell the judge they committed no crime.” Id. As our supreme

       court has explained: “A requirement that a guilty plea manifest an unqualified

       admission of guilt does not exalt form over substance. It implements

       fundamental notions of due process essential to the fair and just administration

       of criminal law.” Ellis, 67 N.E.3d at 651 (quoting Patton, 517 N.E.2d at 376).


[19]   I cannot say the instant plea was unqualified and reliable. Even the majority

       identifies equivocation at the hearing, “conclud[ing] that Hooker’s equivocation

       at his guilty plea hearing did not amount to a denial of breaking into Z.M.’s

       residence.” Slip op. at 12. The trial court could have dispelled uncertainty by




       4
        The majority supposes that “Hooker seemingly wanted it known that he had not violently broken into
       Z.M.’s residence (by kicking in a door or the like).” Slip op. at 13. Yet, it appears that Hooker instead
       disputed having committed the offense of Burglary—which requires a breaking—while readily admitting that
       he had committed the lesser-included offense of Theft, for which he was charged under Count II. Yet, as the
       Theft was only a Class D felony, the State insisted upon squeezing Hooker for a Class C felony conviction.

       Court of Appeals of Indiana | Opinion 18A-PC-2318 | March 21, 2019                            Page 16 of 18
       asking what Hooker meant by squeezing by the door. Moreover, there was also

       opportunity for clarification at subsequent hearings, as Hooker again asserted

       the door had been open. It was not Hooker’s responsibility to clarify his own

       equivocation. Further, although Hooker eventually admitted to Burglary, he

       capitulated “only after the court repeatedly said that it could not otherwise let

       him plead guilty, after he said that he wanted to plead guilty because he was

       worried about the higher sentence he was facing, and after he said he believed

       that he was only ‘somewhat’ guilty of burglary.” Reply Br. at 8. Thus, any

       eventual admission was tainted by pervasive equivocation. See Huddleston v.

       State, 951 N.E.2d 277, 281 (Ind. Ct. App. 2011) (“[D]espite the trial court’s

       efforts to extract an unequivocal admission . . . we cannot square any such

       admission with [the defendant’s] statements, made during the same proceeding,

       that he lacked the requisite culpability for that offense.”), trans. denied.


[20]   Under these circumstances, the plea was unreliable as a matter of law. I would

       therefore conclude that the post-conviction court clearly erred in denying relief. 5




       5
         In reaching this conclusion, I would reject each of the State’s affirmative defenses. Two of these defenses—
       res judicata and waiver—relate to an appeal Hooker pursued following the denial of his Verified Motion to
       Vacate the Judgment and Withdraw the Plea. Hooker filed that pro se motion during the pendency of the
       instant proceedings. Therein, Hooker presented a different issue—whether he was entitled to a particular
       advisement—and so the doctrine of res judicata does not bar the instant claim, which is that the plea itself
       was unreliable. See Ind. Dep’t of Envtl. Mgmt. v. Conard, 614 N.E.2d 916, 923 (Ind. 1993). Further, Indiana
       Code Section 35-35-1-4(c) provides that “[a] motion to vacate judgment and withdraw the plea . . . shall be
       treated by the court as a petition for postconviction relief under the Indiana Rules of Procedure for
       Postconviction Remedies.” Thus, the post-conviction court was obligated to treat Hooker’s motion as a
       successive petition for post-conviction relief—and, under the Indiana post-conviction rules, a petitioner must
       take certain steps to pursue a successive petition. See Ind. P-C.R. 1(12). Hooker had not taken those steps.
       Therefore, I cannot say there was any preclusive adjudication—or, with respect to the defense of waiver, that
       Hooker waived the instant claim by failing to present the claim in an improper successive petition. See

       Court of Appeals of Indiana | Opinion 18A-PC-2318 | March 21, 2019                               Page 17 of 18
generally P-C.R. 1(8) (“All grounds for relief available to a petitioner under this rule must be raised in his
original petition.”). As to laches, the post-conviction court found that “most of the delays in this case were
the result of a change in counsel, the time needed for [Hooker’s] attorneys to conduct a proper investigation
and preparation, along with the Court’s failure to identify that the December 5, 2001 hearing was missing
from the chronological case summary.” Appellant’s App. Vol. IV at 53. Thus, the court implicitly concluded
that Hooker had not unreasonably delayed in seeking relief—and evidence adduced at the hearing does not
lead unerringly and unmistakably to an opposite conclusion. See Willis v. Westerfield, 839 N.E.2d 1179, 1185
(Ind. 2006) (noting that the proponent of an affirmative defense bears the burden of proof on that defense); cf.
Armstrong v. State, 747 N.E.2d 1119, 1120 (Ind. 2001) (observing that a petitioner for post-conviction relief “is
not appealing from a negative judgment” when challenging the application of an affirmative defense).

Court of Appeals of Indiana | Opinion 18A-PC-2318 | March 21, 2019                                 Page 18 of 18
