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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.

ATTORNEYS FOR APPELLANT: SUSAN K. CARPENTER Public Defender of Indiana CASSANDRA J. WRIGHT Deputy Public Defender Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana ELLEN H. MEILAENDER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
ANTHONY A. HOPKINS, Appellant-Petitioner, vs. STATE OF INDIANA, Appellee-Respondent. ) ) ) ) ) ) ) ) )

No. 49A05-0705-PC-279

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Robert R. Altice, Jr., Judge The Honorable Amy J. Barbar, Magistrate Cause No. 49G02-9903-PC-43913

December 31, 2007 MEMORANDUM DECISION - NOT FOR PUBLICATION VAIDIK, Judge

Case Summary Anthony A. Hopkins appeals the post-conviction court's denial of one of his claims for post-conviction relief. Specifically, he contends that the post-conviction court erred in concluding that he did not plead guilty to being a habitual offender but rather stipulated to the underlying felonies. Therefore, Hopkins' argument continues, the trial court's failure to advise him of his Boykin rights caused his guilty plea to be involuntary and unintelligent, requiring it to be vacated. Because Hopkins admitted to the habitual offender enhancement, and not just to the underlying felonies, we conclude that he, in fact, pled guilty to being a habitual offender. Because the record shows that the trial court did not advise Hopkins of all of his Boykin rights, his plea was thus unknowing and involuntary and must be vacated. Accordingly, we reverse the post-conviction court on this issue and remand for further proceedings. Facts and Procedural History The facts underlying this appeal, taken from the Indiana Supreme Court's opinion in Hopkins' first direct appeal, are as follows: The facts most favorable to the judgment indicated that in the early morning of March 9, 1999, the victims, George Martinez and Paula McCarty, were on their way to Martinez's home. They encountered Defendant and his brother, Edward, who were stranded on the roadside attempting to get a jump from another car. Martinez and Defendant had engaged in drug transactions in the past. Martinez and McCarty stopped the car and assisted Defendant and his brother. Defendant told Martinez that his car had been breaking down. Martinez told Defendant that if he had anything he did not want to get caught with, they could stop by his house and drop it off. Soon after Martinez and McCarty returned home, Defendant and Edward showed up. Defendant asked Martinez to hold onto his gun for him. About fifteen minutes later, Defendant and Edward returned. When Martinez returned Defendant's gun, Defendant locked the door and then 2

pointed the gun at Martinez and ordered Martinez and McCarty into the basement and told them to take their clothes off. McCarty resisted and Defendant hit her on the head with the gun. Once in the basement, Defendant took $4,500 from Martinez and $40 from McCarty. Defendant said that that was not enough, gave Edward the gun, and went upstairs to look for drugs and more money. Defendant found approximately two or three pounds of marijuana upstairs. Defendant yelled, "Where's it at?," as he searched the house. While Defendant was still upstairs, Edward shot Martinez in the shoulder as Martinez and McCarty both pleaded for their lives. Edward was about three feet away and the bullet entered Martinez's shoulder, ricocheted into his neck, hit his carotid artery, and exited through his ear. Martinez lost consciousness. McCarty assumed that Martinez was dead, and testified that she thought Edward had blown the back of Martinez's head off. Martinez survived, but was in an intensive care unit for thirteen days as a result of being shot. After Edward shot Martinez, Defendant returned to the basement and took the gun from Edward. Defendant then shot McCarty. As Defendant shot her, McCarty moved around so that he wouldn't hit her in the head. When she fell to the ground she pretended to be dead. Defendant and Edward went upstairs and left the house. Martinez regained consciousness and they were able to call for help. McCarty had been shot in the chest, and suffered a severed spinal cord, punctured lung, paralysis in her arm, and is now confined to a wheelchair. Hopkins v. State, 759 N.E.2d 633, 636 (Ind. 2001). In March 1999, the State charged Hopkins with two counts of attempted murder, two counts of Class A felony robbery, two counts of Class B felony criminal confinement, and one count of Class C felony carrying a handgun without a license. The State later added a habitual offender charge. Following a March 2000 jury trial, Hopkins was convicted as charged.1 As described in much detail later in this opinion, defense counsel then told the court that Hopkins wanted to "admit to the elements involved in the habitual offender," Trial Tr. p. 737, and the trial court ultimately concluded that the State

Judgment of conviction was entered for both counts of robbery as a Class B felony and for both counts of criminal confinement as a Class D felony.

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had proved that Hopkins was a habitual offender. The trial court sentenced Hopkins to consecutive terms totaling 166 years. On direct appeal, the Indiana Supreme Court reversed Hopkins' conviction for the attempted murder of Martinez due to an improper jury instruction but affirmed his other convictions. Id. at 639. In July 2002, Hopkins was retried for the attempted murder of Martinez, and the jury found him guilty as charged. The trial court sentenced Hopkins to fifty years and ordered this sentence to run consecutively to his other sentences. This Court affirmed Hopkins' conviction for the attempted murder of Martinez on direct appeal. Hopkins v. State, No. 49A02-0209-CR-780 (Ind. Ct. App. Sept. 30, 2003). In September 2004, Hopkins filed a pro se petition for post-conviction relief, which was amended by counsel in April 2006. In his petition, Hopkins first alleged that appellate counsel during his second direct appeal was ineffective for failing to argue that his consecutive sentences for the two attempted murders and the two criminal confinements were improper under the version of Indiana Code

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