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COA: sentence waiver is valid

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The Indiana Court of Appeals affirmed the denial of a defendant’s petition for permission to file a belated notice of appeal, finding that she waived the right to challenge her sentence in a direct appeal.

Jessica Bowling agreed to plead guilty to Class A felony neglect of a dependent in exchange for a 40-year cap on the executed portion of her sentence. Along with the plea agreement, Bowling signed a written advisement and waiver of rights that contained the following provision in paragraph 10: “By pleading guilty you have agreed to waive your right to appeal your sentence so long as the Judge sentences you within the terms of your plea agreement.” She was sentenced to 40 years, executed.

She later filed a petition for permission to file a belated notice of appeal pursuant to Indiana Post-Conviction Rule 2, which was denied. She believed the waiver – specifically paragraph 10 – is a misstatement of law.

In Jessica Bowling v. State of Indiana, No. 35A04-1107-CR-407, the appellate court noted that Bowling freely signed the advisement, in which she acknowledged that she “agreed” to waive her right to appeal the sentence. During the hearing, Bowling agreed that she had received the advisement, read it, gone over it with her attorney, understood it and signed it. The content and language of the advisement and the trial court’s discussion with Bowling at the guilty plea hearing are sufficient to support enforcement of the waiver in paragraph 10, held the judges.

“… paragraph 10 sufficiently informs a defendant that although she has a right to appeal an open sentence, she is agreeing to waive that right as part of her plea agreement,” wrote Judge Terry Crone. “That said, to avoid even the possibility of confusion, such a waiver provision would be improved by using the following language or language similar thereto: ‘As a condition of entering this plea agreement, I knowingly and voluntarily agree to waive my right to appeal my sentence on the basis that it is erroneous or for any other reason so long as the Judge sentences me within the terms of my plea agreement.’ In addition, it would be helpful to include a waiver of the right to appeal an open sentence in the plea agreement itself, as well as any written advisement and waiver of rights that is executed along with the plea agreement.”

 

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  1. by the time anybody gets to such files they will probably have been totally vacuumed anyways. they're pros at this at universities. anything to protect their incomes. Still, a laudable attempt. Let's go for throat though: how about the idea of unionizing football college football players so they can get a fair shake for their work? then if one of the players is a pain in the neck cut them loose instead of protecting them. if that kills the big programs, great, what do they have to do with learning anyways? nada. just another way for universities to rake in the billions even as they skate from paying taxes with their bogus "nonprofit" status.

  2. Um the affidavit from the lawyer is admissible, competent evidence of reasonableness itself. And anybody who had done law work in small claims court would not have blinked at that modest fee. Where do judges come up with this stuff? Somebody is showing a lack of experience and it wasn't the lawyers

  3. My children were taken away a year ago due to drugs, and u struggled to get things on track, and now that I have been passing drug screens for almost 6 months now and not missing visits they have already filed to take my rights away. I need help.....I can't loose my babies. Plz feel free to call if u can help. Sarah at 765-865-7589

  4. Females now rule over every appellate court in Indiana, and from the federal southern district, as well as at the head of many judicial agencies. Give me a break, ladies! Can we men organize guy-only clubs to tell our sob stories about being too sexy for our shirts and not being picked for appellate court openings? Nope, that would be sexist! Ah modernity, such a ball of confusion. https://www.youtube.com/watch?v=QmRsWdK0PRI

  5. LOL thanks Jennifer, thanks to me for reading, but not reading closely enough! I thought about it after posting and realized such is just what was reported. My bad. NOW ... how about reporting who the attorneys were raking in the Purdue alum dollars?

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