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Defense attorneys lose appeal for compensation

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Two private defense lawyers in Marion County failed to convince the Indiana Court of Appeals that they should be retroactively appointed by the Marion County Public Defender Agency and compensated for their legal work on a case that has an intricate maze of attorney representation over the course of five years.

The court’s ruling came Friday in Timothy-Patrick Treacy v. State, No. 49A02-1010-CR-1254, an attorney fee-focused continuation of a criminal appeal that a separate appellate panel had decided in a not-for-publication ruling in September 2010.

In the underlying case that evolved in Marion Superior Judge Rueben Hill’s court, Timothy-Patrick Treacy was charged in August 2006 with two misdemeanor and two felony drunk driving counts and a misdemeanor public intoxication charge. But multiple delays involving attorney representation and court congestion pushed his jury trial back three years, and Treacy was eventually convicted on all counts in August 2009. He received a sentence that was mostly suspended and resulted in 100 days in jail and probation.

Treacy challenged the convictions on grounds that he didn’t receive a trial within one year as required by Indiana Criminal Rule 4(C), but the appellate court in September 2010 affirmed the lower court’s findings because the delays were mostly caused by the defendant.

But the lawyering continued, as private attorneys Paul Ogden and Patrick Stern who’d represented Treacy toward the end of those four years argued they should be retroactively appointed as public defenders and compensated for their work. The roadmap to Treacy’s representation is scattered through two appellate records, from this most recent attorney-fees ruling to the original Court of Appeals’ NFP decision upholding Treacy’s criminal convictions and sentence.

In the four years from when the case began to when it was completed in Marion Superior Court, the defendant had five lawyers representing him at the trial level along with multiple stints of pro se representation – the list includes two private attorneys whom Treacy fired, a public defender he threatened to file a lawsuit against, and two private attorneys who were later ordered to stay on the case or represent him intermittently because of counsel indecision or delays.

James Recker was hired and then fired between August 2006 and June 2007, and Treacy wasn’t sure about hiring another lawyer or proceeding pro se. The judge appointed Marion County public defender A.J. Reiber until the defendant decided how he wanted to proceed.

Private attorney Jeffrey McQuary appeared for a September 2007 hearing, but within four months Treacy fired him. Treacy wanted to proceed pro se, and told the court that Reiber couldn’t be re-appointed because he was threatening to sue the public defender on claims he owed Treacy $3.5 million for violating his rights.

After more delays, private defense attorney Patrick Stern represented Treacy at a January 2009 hearing after the defendant’s mother retained him for $1,000.

Several more disagreements surfaced between Treacy and his counsel, with Stern noting more than once that he’d been terminated, but the defendant indicated that was not the case and the court ordered Stern to remain as counsel on the case. At one point in July 2009, after Treacy again said he’d fired Stern, Senior Judge Richard Sallee ordered Paul Ogden, who was sitting in the courtroom gallery at the time, to assist in reviewing some tapes because he was representing Treacy in an unconnected civil matter.

About three years after the man had first been charged, the jury trial commenced and Treacy was convicted and sentenced within a month. Both Ogden and Stern were representing Treacy at the time, the court records show.

Within a month of Treacy’s sentencing, Ogden and Stern both filed petitions ordering the county to pay for their costs, which were $3,765 and $3,500 respectively. Judge Hill denied the motions, and the Indiana Court of Appeals has now dismissed the appeal – mostly because the majority found that Ogden and Stern weren’t parties to the case and Treacy hadn’t requested public appointment of the two lawyers.

Finding that it didn’t have subject matter jurisdiction, the appellate court described this as an attempt to circumvent trial and appellate rules to litigate a compensation dispute with the MCPDA on appeal rather than through a separate lawsuit.

“Although this appeal is styled as a challenge to the trial court’s denial of Treacy’s request for counsel at public expense, no such denial is actually claimed,” Judge Cale Bradford wrote. “This appeal is, in fact, an appeal prosecuted by Ogden and Stern on their own behalf in an attempt to have the MCPDA reimburse them for representing Treacy.”

Judge John Baker concurred, but Judge Melissa May disagreed and found that Ogden and Stern were proper parties and they should address the merits. She would affirm the attorney fee denials because Treacy had not raised this argument on appeal and waived it, but also because he’d been given the chance for a public defender.

“If a defendant wishes representation at public expense, he must accept the public defender appointed by the trial court; to permit any other system would undermine the public defender system created by our legislature and increase the cost of providing defense for all indigent defendants.”

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  1. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

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  3. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

  4. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

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