Alexa R. Hamilton v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Sep 17 2020, 8:48 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Amy E. Karozos Curtis T. Hill, Jr.
Public Defender of Indiana Attorney General of Indiana
John Pinnow Caroline G. Templeton
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Alexa R. Hamilton, September 17, 2020
Appellant-Petitioner, Court of Appeals Case No.
20A-PC-641
v. Appeal from the
Elkhart Circuit Court
State of Indiana, The Honorable
Appellee-Respondent. Michael A. Christofeno, Judge
Trial Court Cause No.
20C01-1812-PC-70
Kirsch, Judge.
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[1] Alexa R. Hamilton (“Hamilton”) appeals the denial of her petition for post-
conviction relief. Hamilton raises one issue, which we restate as whether she
received effective assistance of counsel at her sentencing hearing.
[2] We affirm.
Facts and Procedural History
[3] On February 27, 2018, Hamilton was arrested and later charged with dealing in
methamphetamine. Conf. PCR Ex. 2; Tr. Vol. II at 46. At the time of her arrest,
Hamilton possessed ninety-five grams of methamphetamine and was out on
bond in three other cases, two of which were also methamphetamine possession
cases and the third involved two counts of operating while intoxicated. Tr. Vol.
II at 44-46; Conf. PCR Ex. 5 at 56-57. On March 18, 2018, the State charged
Hamilton with dealing in methamphetamine as a Level 2 felony. Conf. PCR Ex.
2. On June 14, 2018, Hamilton pleaded guilty to the charge of dealing in
methamphetamine as a Level 2 felony and to operating while intoxicated as
Level 6 felony pursuant to a written plea agreement, which imposed a
sentencing cap of twenty years executed, and had two of her other felony
methamphetamine possession cases dismissed. Conf. PCR Ex. 3. At the guilty
plea hearing, Hamilton admitted that on February 27, 2018, she had at least ten
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grams of methamphetamine, that she knew it was methamphetamine, and that
she planned to distribute it. PCR Ex. 1 at 19.1
[4] A presentence investigation report (“the PSI”) was prepared. PCR Conf. Ex. 5.
The PSI detailed Hamilton’s criminal history as both an adult and a juvenile.
Id. at 55-57. As a juvenile, Hamilton had five juvenile referrals. Id. at 55-56. In
2009, Hamilton had a juvenile referral for possession of marijuana that did not
result in an adjudication and for which she “completed AVIP and [a] Drug
Education Program.” Id. at 55. In 2011, Hamilton had a juvenile referral for
burglary, which resulted in an adjudication, and she was placed at Bashor
Children’s Home for drug treatment. Id. Also, in 2011, Hamilton had juvenile
referrals for possession of marijuana, possession of paraphernalia, and illegal
possession of an alcoholic beverage, none of which resulted in an adjudication,
and she was again placed at Bashor Children’s Home. Id. at 56. In addition to
the three other cases for which she was out on bond, as an adult, Hamilton had
been convicted of possession of a controlled substance as a Class A
misdemeanor, operating while intoxicated as a Class A misdemeanor, and
possession of marijuana as a Class B misdemeanor. Id. She was placed on
probation for those misdemeanor convictions and successfully completed her
probation in 2017. Id. In the PSI, Hamilton also reported that she was drug
free from approximately 2012 through 2017 but that she relapsed following the
1
PCR Ex. 1 is the transcript of Hamilton’s guilty plea hearing and her sentencing hearing.
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death of Justin Dean (“Dean”), her oldest child’s father, in February 2017. Id.
at 60.
[5] On July 12, 2018, the trial court held a sentencing hearing. Appellant’s App. Vol.
II at 8. Hamilton’s trial counsel made argument but did not call any witnesses
or present evidence at the sentencing hearing. PCR Ex. 1 at 29. Instead, her
trial counsel argued that Hamilton’s criminal history reflected her struggles with
drug addiction, but that despite her struggles Hamilton’s history also showed
that she could be drug free for an extended period. Id. at 29-30. Hamilton’s
trial counsel further argued the charge leading to Hamilton’s plea was related to
the death of Dean and despite her attendance at a six-week grief course on the
recommendation of her probation officer, she failed to address her grief issues.
Id. at 31. Finally, her trial counsel argued that Hamilton had “good potential”
and that she had begun classes at Ross Medical College. Id. at 32.
[6] Hamilton then made a statement at sentencing in which she apologized to her
family, the community, the families of people that she sold drugs to, and
expressed her desire to receive help. Id. at 34. As a supplement to trial
counsel’s argument, the trial court also had before it a letter from Hamilton’s
mother, Teri Hamilton (“Teri”). Appellant’s App. Vol. II at 88-89. In the letter,
Teri described Hamilton as “very intelligent & kind-hearted” and that Hamilton
was “fairly typical” until her sophomore year of high school when she became
associated with methamphetamine. Id. at 88. Teri also informed the trial court
that Hamilton returned to using methamphetamine after Hamilton was unable
to cope with the death of Dean. Id. Teri asked for the trial court to consider
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giving Hamilton a “lighter sentence” and to “give her a chance to prove . . . that
she can change.” Id. at 89.
[7] In sentencing Hamilton, the trial court noted that Hamilton seemed “to be a
bright and engaging young lady.” PCR Ex. 1 at 34. The trial court stated the
mitigating circumstances were Hamilton’s acceptance of responsibility and her
accompanying statement, trial counsel’s statements on her behalf, her issues
with addiction, and her young age, twenty-three, at the time of sentencing. Id.
at 32, 35. The trial court found that Hamilton’s prior criminal history was an
aggravator as it included her juvenile referrals, three misdemeanor convictions,
three crimes committed while out on bond, and two felony cases that were
dismissed as part of the plea agreement. Id. at 36. It also identified as
aggravators Hamilton’s history of abusing drugs and alcohol and that other
forms of sanctions had proven to be unsuccessful. Id. at 36-37. The trial court
concluded that “the aggravators taken alone, or as a whole, outweigh any
mitigating circumstance.” Id. at 37. The trial court sentenced Hamilton to
twenty-five years with six years suspended to probation for the Level 2 felony
dealing in methamphetamine and a consecutive sentence of 365 days for the
Level 6 felony of operating while intoxicated. Id. at 37-39; PCR Ex. 6 at 62-66.
[8] On December 13, 2018, Hamilton filed a petition for post-conviction relief.2
Appellant’s App. Vol. II at 13, 18-27. On May 21, 2019, Hamilton filed an
2
In her plea agreement, Hamilton waived her right to appeal her sentence. Conf. PCR Ex. 3 at 48, PCR Ex. 1
at 27.
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amendment to her petition for post-conviction relief (“amended petition”),
alleging that she received ineffective assistance of counsel at sentencing because
her trial counsel failed to call witnesses and failed to object to the trial court
using juvenile referrals that did not result in adjudications in aggravation. Id. at
15, 35-37
[9] On November 13, 2019, the post-conviction court held a hearing on Hamilton’s
amended petition. Id. at 16. At the hearing, Hamilton’s trial counsel testified
that he had been an attorney since 1994 and had started working as a public
defender in 1998. Tr. Vol. II at 8. Trial counsel represented Hamilton in each
of the cases against her, including the underlying charge. Id. at 9. He testified
that if Hamilton had “somebody that would have wanted to testify on her
behalf, I’d certainly discuss that with the client[,]” and that if a witness was not
called to the stand it would be an indication that the client did not identify or
request the witness. Id. at 11, 16. Trial counsel added that he “would call
somebody if [the client was] adamant about that person coming in to testify on
their behalf. Either that, or get a letter from them . . . on the other person’s
behalf.” Id. at 16.
[10] Rebecca Hamilton (“Rebecca”), Hamilton’s grandmother, testified that she
would have testified at Hamilton’s sentencing hearing but that she was not
contacted by Hamilton’s trial counsel and did not try to contact him. Id. at 19,
21-22. Rebecca told the post-conviction court that Hamilton was caring for her
two children before her arrest, and that Hamilton started “spiraling down” after
Dean died. Id. at 20. Teri also testified, stating that she tried to contact
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Hamilton’s trial counsel one time and did not speak with trial counsel at
Hamilton’s sentencing but that she was sure she told Hamilton she would
testify if needed. Id. at 27. Teri added that Hamilton’s life “just kind of fell
apart” after Dean’s death and that if she had testified at sentencing she would
have asked for leniency for Hamilton. Id. at 25. Amy Dean (“Amy”), Dean’s
stepmother, testified that she did not speak with Hamilton’s trial counsel or
otherwise attempt to contact him. Id. at 29-30. Amy also added that Hamilton
“started having issues” after Dean’s death and that “[e]verything just kind of
went downhill from there.” Id. at 30. Teri and Amy were both present at
Hamilton’s sentencing hearing and both indicated they were willing to testify.
Id. at 26, 31. Rebecca was sick and was not present at Hamilton’s sentencing
but also indicated she was willing to testify for Hamilton. Id. at 21, 37.
[11] Hamilton testified that she did not discuss any potential witnesses for
sentencing with her trial counsel because she did not know it was an option,
claiming that she did not know she could testify on her own behalf and that she
did not talk to her trial counsel about testifying. Id. at 36. Hamilton said that,
after she finished treatment at Bashor Children’s Home, she was drug free for
four years and had two children in that time period, K.H., by Dean, and A.P.,
by Matt Pelikan (“Pelikan”). Id. at 37. She testified that she worked at 7-
Eleven, Qdoba, Applebee’s, and Lippert to support herself and her children. Id.
at 38. Hamilton stated that she did not receive any child support from Dean
until she took him to court and that she received no child support from Pelikan.
Id. She testified that when Dean died in an accident, her probation officer put
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her into grief classes which were not effective, and she instead began to use
methamphetamine again. Id. at 39. Hamilton also testified that she started
dealing to support her methamphetamine habit. Id. At the time of her arrest,
Hamilton had around ninety-five grams of methamphetamine in her possession
and had been dealing it for several months, indicating that she would
sometimes sell up to one half pound of methamphetamine every other day. Id.
at 46.
[12] On February 25, 2020, the post-conviction court denied Hamilton’s amended
petition in a written order containing findings of fact and conclusions of law.
Appellant’s App. Vol. II at 53-63. The post-conviction court’s order noted that the
information that was before the sentencing court was sufficient for that court to
conclude Hamilton was a “bright and engaging young lady.” Id. at 60. It found
that even if Hamilton’s witnesses had testified at sentencing, her sentence
would have been the same because the court “was sufficiently apprised at
sentencing of many positive aspects” of her character. Id. at 61. It concluded
that Hamilton’s trial counsel was not deficient in not calling witnesses because
none of Hamilton’s witnesses attempted to contact counsel to express a desire
to testify and that Hamilton did not mention that she wanted witnesses to
testify. Id. at 62. As to the references at sentencing to Hamilton’s juvenile
referrals not resulting in adjudications, the post-conviction court found that
their purpose was to demonstrate that prior contacts with the juvenile justice
system did not dissuade Hamilton from engaging in criminal activity and were
not independent aggravating factors. Id. at 62. It concluded that even without
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the juvenile referrals the aggravating factors outweighed the mitigating factors,
that even if Hamilton’s trial counsel had objected such an objection would not
have resulted in a reduced sentence, and that Hamilton had not demonstrated
prejudice. Id. at 63. Hamilton now appeals.
Discussion and Decision
[13] Hamilton contends that her trial counsel was ineffective. The petitioner in a
post-conviction proceeding bears the burden to establish grounds for relief by a
preponderance of the evidence. Humphrey v. State, 73 N.E.3d 677, 681-82 (Ind.
2017). When appealing the denial of a petition for post-conviction relief, the
petitioner is appealing a negative judgment. Campbell v. State, 19 N.E.3d 271,
274 (Ind. 2014). Thus, she must show that the evidence leads unerringly and
unmistakably to a conclusion opposite to the post-conviction court’s
conclusion. Humphrey, 73 N.E.3d at 681. Although we do not defer to the
post-conviction court’s legal conclusions, its findings and judgment will be
reversed only upon a showing of clear error which leaves us with the definite
and firm conviction that the trial court erred. Id. at 682.
[14] “The Sixth Amendment to the United States Constitution guarantees criminal
defendants the right to counsel and mandates that the right to counsel is the
right to the effective assistance of counsel.” Bobadilla v. State, 117 N.E.3d 1272,
1279 (Ind. 2019). “We evaluate Sixth Amendment claims of ineffective
assistance under the two-part test announced in Strickland.” Rondeau v. State, 48
N.E.3d 907, 916 (Ind. Ct. App. 2016) (citing Strickland v. Washington, 466 U.S.
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668, 698 (1984)), trans. denied. To prevail on a claim of ineffective assistance of
counsel, a petitioner must demonstrate that (1) counsel’s representation fell
short of prevailing professional norms, and (2) counsel’s deficient performance
prejudiced the defendant such that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. Strickland, 466 U.S. at 687-88, 698. “‘A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’” Rondeau, 48
N.E.3d at 916 (quoting Strickland, 466 U.S. at 698). “The two prongs of the
Strickland test are separate and independent inquiries.” Id. (citing Strickland, 466
U.S. at 697). “Thus, ‘[i]f it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice . . . that course should be followed.’” Id.
(quoting Strickland, 466 U.S. at 697).
[15] Further, counsel’s performance is presumed effective, and a defendant must
offer strong and convincing evidence to overcome this presumption.
McCullough v. State, 973 N.E.2d 62, 74 (Ind. Ct. App. 2012), trans. denied. We
will not lightly speculate as to what may or may not have been an advantageous
trial strategy, as counsel should be given deference in choosing a trial strategy
that, at the time and under the circumstances, seems best. Perry v. State, 904
N.E.2d 302, 308 (Ind. Ct. App. 2009) (citing Whitener v. State, 696 N.E.2d 40,
42 (Ind. 1998)), trans. denied. Isolated omissions or errors, poor strategy, or bad
tactics do not necessarily render representation ineffective. McCullough, 973
N.E.2d at 74.
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[16] Hamilton argues that her trial counsel was ineffective for failing to call
witnesses and present additional mitigation evidence at her sentencing hearing.
We disagree. A decision to call witnesses is a matter of trial strategy which an
appellate court will not second-guess. Smith v. State, 822 N.E.2d 193, 204 (Ind.
Ct. App. 2005), trans. denied. Here, there was no evidence that Rebecca or Amy
contacted Hamilton’s trial counsel to testify at Hamilton’s sentencing hearing.
Tr. Vol. II at 21-22, 30-31. Teri stated that she spoke with Hamilton’s trial
counsel one time, but there is no indication that she asked to testify at
sentencing. Id. at 27. Hamilton herself did not alert her trial counsel that she
had any witnesses who would be willing to testify. Id. at 36. Hamilton’s trial
counsel had been in practice as a public defender for approximately twenty
years. Id. at 8. Trial counsel testified that it was his practice to contact
witnesses if a client provided names to him and that Hamilton’s failure to
provide him with names indicated that she did not have any proposed
witnesses. Id. at 11-12, 16. Moreover, the trial court had before it Hamilton’s
PSI, which detailed Hamilton’s work history and personal life, including her
two young children, one of whom had tested positive for methamphetamine,
her plan to work toward a degree at Ross Medical College, her struggles with
drug addiction, and her criminal history. Conf. PCR Ex. 5 at 52-61. It also had a
letter from Hamilton’s mother explaining that the death of Dean precipitated
Hamilton’s slide back to criminal activity and relapse into methamphetamine
use, and that her daughter was intelligent and kind-hearted and capable of
maintaining sobriety. Appellant’s App. Vol. II at 88-89. It also heard Hamilton’s
statement in which she accepted responsibility for her conduct and expressed
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her regret and apology for her actions. PCR Ex. 1 at 34. We cannot say that
Hamilton’s trial counsel performed deficiently by not calling witness that were
not brought to his attention.
[17] Hamilton contends she was prejudiced by her trial counsel’s failure to call
witnesses because the trial court was unable to hear live witness testimony
explaining the details of her life. To assess whether a petitioner suffered
prejudice, the inquiry is whether there was a reasonable probability that the trial
court would have imposed a lesser sentence had the mitigating evidence been
before it. Lewis v. State, 116 N.E.3d 1144, 1157 (Ind. Ct. App. 2018), trans.
denied.
[18] Here, the post-conviction judge was the same judge that sentenced Hamilton.
This court has stated that “a post-conviction court’s findings and judgment
should be entitled to ‘greater than usual deference’ when the post-conviction
judge is the same judge who conducted the original trial.” Hinesley v. State, 999
N.E.2d 975, 982 (Ind. Ct. App. 2013), trans. denied. The post-conviction judge
concluded that after hearing the testimony of Teri, Rebecca, and Amy at the
post-conviction hearing that their respective testimony would not have
produced a reduced sentence. Appellant’s App. Vol. II at 60-62. The information
that Hamilton’s proposed witnesses would have provided to the trial court was
already before the trial court, including any factors in mitigation. Thus, we
cannot say that there was a reasonable probability that a lesser sentence would
have been imposed on Hamilton had witnesses been called or additional
evidence been presented. See, e.g., Alvarado v. State, 686 N.E.2d 819, 822-23
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(Ind. 1997) (holding that petitioner failed to show he was prejudiced by his
counsel’s failure to present witnesses at petitioner’s sentencing hearing because
petitioner failed to show how the witnesses testimony would have changed the
sentencing outcome); Johnson v. State, 832 N.E.2d 985, 1005 (Ind. Ct. App.
2005) (holding that petitioner failed to demonstrate that he received ineffective
assistance of counsel because he did not provide any evidence as to how the
result of his sentencing hearing would have been different if his counsel would
have argued more or different mitigating circumstances), trans. denied.
[19] Hamilton also argues that her trial counsel’s performance was deficient because
he did not object when the sentencing court cited Hamilton’s juvenile referrals
in finding that her criminal history was an aggravating circumstance. To
prevail on a claim of ineffective assistance based on the failure to object,
Hamilton must establish that an objection would have been sustained and that
she was prejudiced by the failure. Kubsch v. State, 934 N.E.2d 1138, 1150 (Ind.
2010).
[20] Hamilton maintains that the trial court erroneously relied on her juvenile
referrals in finding her criminal history as an aggravator and cites Day v. State,
560 N.E.2d 641 (Ind. 1990) and Morell v. State, 118 N.E.3d 793 (Ind. Ct. App.
2019), clarified on reh’g, 121 N.E.3d 577 (Ind. Ct. App. 2019), trans. denied, in
support.
[21] In Day, the Indiana Supreme Court stated that, concerning juvenile
proceedings, “t]he details of criminal activity may be used to demonstrate a
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history of criminal activity when a juvenile court has determined that those acts
were committed” and that when a juvenile proceeding ends without a
disposition “the mere fact that a petition was filed alleging delinquency does
not suffice as proof of a criminal history.” 560 N.E.2d at 643 (emphasis in
original) (footnote omitted). The Court explained that “[a]n adjudication of
delinquency is not a fact that can be used by a sentencing court to enhance a
criminal sentence.” Id. (citation omitted). However, it noted that a juvenile
adjudication serves to establish a history criminal behavior as juvenile, which
“indicates that the history is correct” and “elevates that history from allegation
to fact.” Id. (citation omitted). After determining that the trial court’s use of
Day’s juvenile referrals was erroneous in imposing his sentence, the Court
noted that if there are sufficient aggravating circumstances to show that the trial
court “would have entered the same sentence even absent the impermissible
factor it should affirm the trial court’s decision” but could not say with
confidence that Day would have been sentenced as he was without the trial
court’s reliance on his juvenile record. Id.
[22] In Morell, a panel of this court affirmed the trial court’s use of Morell’s juvenile
history as an aggravating circumstance, explaining that some of the juvenile
history cited in Morell’s presentence investigation report did not indicate either
a disposition or an adjudication, but that the trial court properly considered the
portion of his juvenile history resulting in adjudications and his supporting
admissions to facts about his drug use as a juvenile. 118 N.E.3d. at 798-99. On
rehearing, the panel affirmed its decision and, citing Day, explained that the
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trial court’s criminal history aggravator should not have included any juvenile
contacts with the justice system not resulting in an adjudication. Morell v. State,
121 N.E.3d 577, 579 (Ind Ct. App. 2019), trans. denied. It declined to remand
for resentencing because it was confident the trial court would not reach a
different sentence, explaining:
To the extent the trial court here may have considered any of
Morrell’s juvenile contacts with the justice system not reduced to
an adjudication as part of the criminal history aggravator of his
sentence, which the court appears to have done based upon the
oral sentencing statement, the trial court abused its discretion.
However, the factors used to support the aggravating
circumstance of Morrell’s criminal history other than the
nonadjudicated charges amply support the sentence imposed.
Morrell had amassed juvenile adjudications, adult convictions,
and admitted to the use of illicitly or illegally obtained illicit
substances beginning at the age of fourteen.
Id.[23] Here, as to Hamilton’s criminal history and without objection by her trial
counsel, the trial court stated:
Prior criminal history. Five juvenile referrals. Count ’em: Five
juvenile referrals, none of which seemed to dissuade you from
criminal activity. Three misdemeanor convictions. You
committed three crimes while you were on bond. That,
certainly, is an aggravating factor. Two of the felony cases
against you are being dismissed pursuant to the plea; the Court
can consider that to be an aggravating factor.
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PCR Ex. 1 at 36. In sentencing Hamilton, the trial court also explained that
previous alternative sanctions such as education programs and drug and alcohol
treatment, had not dissuaded Hamilton from engaging in criminal activity. Id.
at 37. The post-conviction court’s order found that the reference to the juvenile
referrals was to demonstrate that prior contacts with the justice system as a
juvenile did not dissuade Hamilton from engaging in criminal activity and were
not independent aggravating factors. Appellant’s App. Vol. II at 62. We cannot
say that Day or Morell prohibited the trial court from using the juvenile referrals
for such purposes. Hamilton’s trial counsel’s failure to object was not deficient
performance.
[24] Hamilton is also not able to show that she was prejudiced. The post-conviction
court’s order concluded that even if Hamilton’s trial counsel had objected to the
reference to the juvenile referrals at sentencing, such an objection “would not
have resulted in a different sentence.” Id. at 63. Thus, even if an objection had
been made and was sustained on the basis set forth in Day and Morell, the
record showed that the trial court would have entered the same sentence absent
the use of the juvenile referrals. Hamilton’s adult criminal history consisted of
three misdemeanor convictions, three offenses committed while she was out on
bond, and that she had two felony offenses dismissed as part of the plea
agreement. PCR Conf. Ex. 5 at 56-57; PCR Ex. 6 at 62. Setting aside the
remaining unadjudicated juvenile referrals, Hamilton had accumulated one
juvenile adjudication for burglary. PCR Conf Ex. 5. at 55-56. In addition to
criminal history, the trial court’s sentencing decision was supported by other
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aggravating factors that were properly identified, including Hamilton’s history
of illegal alcohol and drug use that began in her adolescence and that
alternative sanctions such as drug treatment, therapy, and suspended sentences
had not worked for Hamilton. PCR Ex. 6 at 62-63. The trial court also
specifically concluded that the aggravating circumstances outweighed the
mitigating circumstances. Id. at 63; PCR Ex. 1 at 37. “A trial court may rely
upon only one aggravating circumstance to support an enhanced sentence.”
Veal v. State, 784 N.E.2d 490, 494 (Ind. 2003). Thus, Hamilton is unable to
show prejudice.
[25] Affirmed.
Pyle, J., and Tavitas, J., concur.
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