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Tuesday, November 29, 2011

Ind. Decisions - Supreme Court isues ruling in AG's petition for rehearing in Hopper

This is from an ILB entry from March 7, 2011, about an upcoming oral argument set for March 10th:

10:30 AM - David Hopper v. State of Indiana (13S01-1007-PC-399) - Hopper pleaded guilty to operating a vehicle while intoxicated, and later petitioned for post-conviction relief on grounds he had not been adequately advised on waiving his right to counsel incident to the plea negotiations. The Crawford Circuit Court denied relief, the Court of Appeals reversed, and this Court held that certain advisements should be given. Hopper v. State, 934 N.E.2d 1086 (Ind. 2010). The State has petitioned for rehearing.

ILB: This will be interesting. ILB readers likely will recall the Sept. 28, 2010 3-2 opinion in David Hopper v. State of Indiana, where then-Justice Boehm wrote the majority opinion, and CJ Shepard wrote an impassioned dissent [joined by J.Dickson]. Now J. Boehm has retired and been replaced by J. David, and the Court will hear argument on a petition for rehearing. The ILB wrote about this in more detail in a Jan. 22, 2011 entry.

Today, in David Hopper v. State, a 21-page, 3-2 decision on a petition for rehearing, Chief Justice Shepard writes, now for the majority:
Appellant David Hopper has been seeking to set aside a 2005 conviction for driving while intoxicated, on grounds that he had not been advised or warned of the risks of dealing with prosecutors without a lawyer. We earlier affirmed the trial court‘s denial of his petition for post-conviction relief.

The Attorney General has petitioned for rehearing, arguing that the rule announced in our prior opinion presents an unnecessary and impractical deviation from precedents established by the U.S. Supreme Court, and that it is unsupported by public policy. We grant rehearing to address the role and necessity of such advisements. * * *

III. The “Hopper Advisement” [p. 14]

This brings us, finally, to the rule announced in our prior opinion. The Court of Appeals had pointed out that counsel "should be better equipped to plea bargain with a prosecutor than a layperson." Hopper, 925 N.E.2d at 504. We, in turn, required that a defendant be advised "that an attorney is usually more experienced in plea negotiations and better able to identify and evaluate any potential defenses and evidentiary or procedural problems in the prosecution‘s case." Hopper, 934 N.E.2d at 1088. One can acknowledge the correctness of that statement and yet not conclude that an advisement along these lines need be mandatory. * * *

Hopper himself may be the best illustration of why the totality of the circumstances approach serves better than the per se rule. He claims only a lack of an advisement. He does not articulate any negative impact or particularized prejudice. He makes no argument of injustice or innocence. He certainly never says, 'I didn‘t do it.' In fact, counsel acknowledged that this sort of attack would best suit those who are (like Hopper) guilty, but seek to have those convictions set aside to prevent facing habitual or repeat offender charges. Hopper never offers evidence that he would have received a better deal with advice of counsel or that he would have accepted counsel if the judge had told him that lawyers were so much better at plea bargaining.

Hopper thus urges adoption of the per se approach to the warning we earlier mandated and understandably expresses surprise that the advisement was deemed so important that mandating it was thought necessary, but not so important as to warrant granting relief to the defendant who filed the appeal.

In contrast to the per se rule, the totality of the circumstances test asks more searching questions. Was the defendant‘s decision to forgo counsel or to intelligent? Taken as a whole, did the encounter afford a defendant due process, or was it seriously unfair in some respect?

We expect that judicial inquiries about such questions, by both trial and appellate judges, will be as fulsome as each situation requires to separate just results from unjust results. Looked at this way, an offender like Hopper, who lifts up no misstep in his earlier conviction save a warning about the valuable help of lawyers, makes no case for relief. On the other hand, a defendant like Tim Hood, who was threatened by a prosecutor with habitual offender charges unless he waived counsel, should get relief whether the court gave him an advisement or not.

While we do not doubt the value of the Hopper advisement‘s language in particular stages of particular cases with particular defendants, the notion that such language should be mandatory in all stages of all cases with all defendants is misplaced. "'Matters of reality, and not mere ritual, should be controlling.'" Id. at 904 (quoting United States v. Frazier, 705 F.2d 903, 907 (7th Cir. 1983)).


Accordingly, we affirm the judgment of the post-conviction court.

Dickson, and David, JJ., concur.
Rucker, J., dissents with separate opinion in which Sullivan, J., concurs. [some quotes] At the outset I observe that although declaring a rehearing petition "must . . . go beyond a mere assertion that the original ruling was erroneous,' Slip op. at 4 (citing Griffin v. State, 763 N.E.2d 450-51 (Ind. 2002)), the majority nonetheless entertains and effectively grants the State‘s petition even though the State‘s claim is that this Court‘s original opinion was wrongly decided. In fact the State initially sought transfer from a divided opinion of the Court of Appeals which held that Hopper was entitled to an advisement on the desirability of consulting an attorney before pleading guilty. See Hopper v. State, 925 N.E.2d 499 (Ind. Ct. App. 2010). In seeking transfer the State complained about the perils and pitfalls inherent with such an advisement. We granted transfer. And although granting Hopper himself no relief – a matter I touch upon below – we agreed with the Court of Appeals‘ general proposition. The State now seeks rehearing making essentially the same arguments it made before. Nothing has changed. Under these circumstances alone, this Court should deny the petition for rehearing. * * *

I am hard pressed to understand why the majority apparently thinks it is a bad thing or otherwise inappropriate simply to provide pro se – and likely indigent – defendants with such a modest advisement as: "an attorney is usually more experienced in plea negotiations and better able to identify and evaluate any potential defenses and evidentiary or procedural problems in the prosecution‘s case." * * *

In the end I would deny the State‘s petition for rehearing, and reaffirm our original opinion in this case. Therefore I respectfully dissent.

Posted by Marcia Oddi on November 29, 2011 12:31 PM
Posted to Ind. Sup.Ct. Decisions