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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. The is an unsigned editorial masquerading as a news story. Almost everyone quoted was biased in favor of letting all illegal immigrants remain in the U.S. (Ignoring that Obama deported 3.5 million in 8 years). For some reason Obama enforcing part of the immigration laws was O.K. but Trump enforcing additional parts is terrible. I have listed to press conferences and explanations of the Homeland Security memos and I gather from them that less than 1 million will be targeted for deportation, the "dreamers" will be left alone and illegals arriving in the last two years -- especially those arriving very recently -- will be subject to deportation but after the criminals. This will not substantially affect the GDP negatively, especially as it will take place over a number of years. I personally think this is a rational approach to the illegal immigration problem. It may cause Congress to finally pass new immigration laws rationalizing the whole immigration situation.

  2. Mr. Straw, I hope you prevail in the fight. Please show us fellow American's that there is a way to fight the corrupted justice system and make them an example that you and others will not be treated unfairly. I hope you the best and good luck....

  3. @ President Snow - Nah, why try to fix something that ain't broken??? You do make an excellent point. I am sure some Mickey or Minnie Mouse will take Ruckers seat, I wonder how his retirement planning is coming along???

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