Hakeen Hogan v. State of Indiana

FILED
Mar 05 2018, 9:48 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Hakeen Hogan Curtis T. Hill, Jr.
Bunker Hill, Indiana Attorney General of Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Hakeen Hogan, March 5, 2018
Appellant-Petitioner, Court of Appeals Case No.
71A05-1702-CR-278
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable John M.
Appellee-Respondent Marnocha, Judge
Trial Court Cause No.
71D02-1205-FB-71
May, Judge.
[1] Hakeen Hogan filed a motion asking the trial court “to amend [his] Abstract of
Judgment,” (App. Vol. 2 at 3 (capitalization removed)), to indicate the court
would consider a motion for modification of sentence if Hogan completed a
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therapeutic community. The trial court interpreted Hogan’s motion as a
“Motion for Modification of Sentence” and summarily denied it. (Id. at 5.)
[2] On appeal, Hogan argues the trial court erred by considering his motion to be
one requesting modification of his sentence because “[a]ll Hogan was
requesting in his motion was for the trial court to amend his abstract of
judgment to more accurately reflect [the sentencing judge’s original]
intentions.” (Appellant’s Br. at 8-9.) After considering the Department of
Correction’s rules regarding Purposeful Incarceration and the sentencing court’s
statements during the sentencing hearing, we agree Hogan’s motion should
have been granted, and we reverse and remand for entry of a modified Abstract
of Judgment.
Facts and Procedural History
[3] In 2012, Hogan pled guilty as charged to two counts of Class B felony robbery, 1
two counts of Class B felony criminal confinement, 2 and one count of Class B
felony carjacking. 3 The plea agreement gave the trial court sentencing
discretion, but it capped Hogan’s executed sentence at thirty years. The trial
1
Ind. Code § 35-42-5-1 (1984).
2
Ind. Code § 35-42-3-3 (2006).
3
Ind. Code § 35-42-5-2 (1993).
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court did not enter judgment on the carjacking count due to double jeopardy
concerns.
[4] At his sentencing hearing on December 5, 2012, the trial court sentenced
Hogan to forty-six years, with sixteen of those years suspended to probation.
At the end of that sentencing hearing, the trial court raised the prospect of
placing Hogan in a Department of Correction program for persons involved
with drugs:
THE COURT: . . . Did we have some drug problem here a
little bit? Marijuana or something?
[Defense Counsel]: Conviction for marijuana, your Honor.
THE COURT: I would be happy – because I think there’s a
basis for it in your case. I would be happy to put on the abstract
of judgment that I think you are an appropriate candidate for
whatever they call that term in the DOC, meaningful something
or other that would put him into -- when they found he was
appropriate for it with respect to the sentence that he’s in -- will
be in in this case, he would be an appropriate candidate for
Therapeutic Community for example.
[Defense Counsel]: I think that would be an excellent idea, your
Honor.
THE COURT: And it gets you all kind of credit cuts of time.
And if a judge identifies somebody as being an appropriate
candidate for meaningful -- I think it’s called meaningful
incarceration or something like that. It’s some kind of term that I
think would be appropriate to do.
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[Defense Counsel]: I would agree, your Honor.
THE COURT: It can’t hurt you, and it can get you moved
up for consideration for programs, and it would get you time
cuts. The question really is[:] are you really serious about turning
your life around?
MR. HOGAN: Yes.
THE COURT: Well, then I’m going to do what I can to get
you into some meaningful programs or make you at least eligible
for them. And that will be on the abstract of judgment.
(Tr. at 93-4.) The trial court entered an Abstract of Judgment that provided:
Court recommends the Defendant be evaluated for and
considered for Therapeutic Community. Defendant has a history
of substance abuse and chemical addiction and dependence, and
appears to be an appropriate candidate for the DOC’s Purposeful
Incarceration program.
(App. Vol 2 at 6.)
[5] On November 30, 2016, Hogan filed an “AMENDED MOTION FOR
PURPOSEFUL INCARCERATION AND TO AMEND ABSTRACT OF
JUDGMENT.” (Id. at 3.) Hogan asked the court “to direct the clerk to
produce a new Abstract of Judgment, reflecting” Hogan should be placed in the
Purposeful Incarceration program. (Id.) In support thereof, Hogan noted the
sentences entered by the trial court and then explained:
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2. That upon anouncing [sic] sentencing the Court recommended
that Petitioner be evaluated for Therapeutic Community. And
[sic] acknowledged that Petitioner appeared to be an appropriate
candidate for the DOC’s Purposeful Incarceration program.
3. That in order for the Indiana Department of Correction to
acknowledge the Court’s order for Purposeful Incarceration, the
Abstract of Judgment must reflect that the Petitioner is allowed
to be placed in Purposeful Incarceration, and that the Court will
consider a sentence modification upon the completion of a
Therapeutic Community.
(Id. at 3-4.)
[6] On January 9, 2017, without receiving any additional argument or evidence,
the trial court entered the following order denying Hogan’s motion:
The defendant, pro se, having filed a [sic] Amended Motion for
Purposefful [sic] Incarceration and to Amend Abstract of
Judgment, which Motion is in the following words and figures,
to-wit: (H.I.); and the court, having regarded the same as a
Motion for Modification of Sentence, now denies the defendant’s
Motion.
(Id. at 5.)
Discussion and Decision
[7] At issue in Hogan’s motion is his ability to participate in a Department of
Correction program called Purposeful Incarceration.
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In 2009 the Indiana Department of Correction (IDOC) began a
cooperative project with Indiana Court Systems called
Purposeful Incarceration (P.I.). The Department works in
collaboration with Judges who can sentence chemically addicted
offenders and document that they will “consider a sentence
modification” should the offender successfully complete an
IDOC Therapeutic community. This supports the Department
[of] Correction and the Judiciary to get addicted offenders the
treatment that they need and work collaboratively to support
their successful re-entry into society.
Purposeful Incarceration Overview, www.in.gov/idoc/2798.htm (last visited
February 15, 2018).
[8] To so sentence a defendant, the sentencing court must “communicate with the
IDOC that this offender is a PI offender.” Purposeful Incarceration Details,
www.in.gov/idoc/2798.htm (last visited February 15, 2018). In addition, the
court
MUST INCLUDE the following language in the sentencing
order or abstract of judgment in order for the offender to be
identified as a Purposeful Incarceration candidate:
“Upon successful completion of the clinically appropriate
substance abuse treatment program as determined by IDOC, the
court will consider a modification to this sentence.”
Purposeful Incarceration FAQ,
https://secure.in.gov/idoc/files/PI%20FAQ%20Updated%2012.15.pdf (last
visited Feb. 15, 2018) (emphases in original). Thus, as Hogan indicated in his
motion:
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[I]n order for the Indiana Department of Correction to
acknowledge the Court’s order for Purposeful Incarceration, the
Abstract of Judgment must reflect that the Petitioner is allowed
to be placed in Purposeful Incarceration, and that the Court will
consider a sentence modification upon the completion of a
Therapeutic Community.
(App. Vol. 2 at 4.)
[9] On Hogan’s Abstract of Judgment, Judge Frese recommended Hogan be
considered for a Therapeutic Community because he is “an appropriate
candidate for the DOC’s Purposeful Incarceration program.” (Id. at 6.) Judge
Frese did not, however, indicate on that Abstract of Judgment that the court
would consider a sentence modification if Hogan successfully completed a
therapeutic community. (See id.)
[10] The State asserts, based on Judge Frese’s failure at sentencing to use the term
“Purposeful Incarceration” or the phrase “consider a sentence modification,”
that Judge Frese did not intend to place Hogan in Purposeful Incarceration.
(Br. of Appellee at 8.) However, Judge Frese indicated: Hogan was “an
appropriate candidate for” the DOC’s program for people with drug problems,
(Tr. at 94); the program would get Hogan “all kind of credit cuts of time,” (id.);
the judge making him a candidate would “get [him] moved up for consideration
for programs, and it would get [him] time cuts,” (id.); and Judge Frese would
“do what I can to get [Hogan] into some meaningful programs or make
[Hogan] at least eligible for them. And that will be on the abstract of
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judgment.” (Id.) Based on that language, we reject the State’s assertion that
Judge Frese did not intend to place Hogan in Purposeful Incarceration. 4
[11] Because Judge Frese’s intent was to make Hogan eligible to participate in
Purposeful Incarceration, Judge Frese needed to include language on the
Abstract of Judgment indicating the court would consider a sentence
modification if Hogan successfully completed a Therapeutic Program. See supra
Purposeful Incarceration FAQ. The absence of such language rendered Hogan’s
Abstract of Judgment erroneous. We therefore hold the trial court erred when
it did not grant Hogan’s motion for the court to enter a new Abstract of
Judgment that would allow Hogan to participate in Purposeful Incarceration.
We reverse the trial court’s denial of Hogan’s motion and remand for the trial
court to enter an Abstract of Judgment that recommends Hogan be placed in
Purposeful Incarceration and states that, after Hogan successfully completes an
appropriate therapeutic program, the court will consider a petition to modify
Hogan’s sentence. 5
Conclusion
4
Having rejected the State’s assertion about Judge Frese’s intent, we also reject the State’s argument based
thereon that Hogan’s motion was a request to modify his sentence. Hogan’s request was for a corrected
Abstract of Judgment.
5
We reiterate for emphasis that the trial court will be required only to consider a petition to modify Hogan’s
sentence after he completes a therapeutic community. The possibility of modification is all that is promised
by the Purposeful Incarceration literature, and it is all we are expecting the trial court to provide. Whether
such petition should be granted is left to the discretion of the trial court who hears the motion when it is filed,
based on the facts and circumstances presented by Hogan at that time.
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[12] The court’s statements at sentencing clearly indicate it intended Hogan to be
eligible for the Purposeful Incarceration program. Because the original Abstract
of Judgment was incapable of effectuating that intent, the trial court erred when
it denied Hogan’s motion requesting a corrected Abstract of Judgment. We
accordingly reverse and remand for entry of a new Abstract of Judgment in
accordance with this opinion.
[13] Reversed and remanded with instructions.
Barnes, J., and Bradford, J., concur.
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