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Judges disagree on impact of caselaw

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In a man’s appeal of the denial of petition for post-conviction relief, in which he claimed ineffective assistance of his trial and appellate counsel, the Indiana Court of Appeals was divided on whether his appellate counsel was ineffective and if caselaw prevented the trial court from considering charges outside of the guilty plea.

Curtis Bethea and several other people, including a minor female, tricked their way into the home of Angela Dailey and Jason Gates. Bethea and the others then confined the victims and robbed them. The victims were also injured in the course of the robbery. Bethea was charged with nine counts, but pleaded guilty to Class B felony robbery of one victim and Class B felony confinement of the other victim.

The judge sentenced Bethea to 40 years total, citing, among other things, Bethea’s criminal past, the teen’s involvement in the crime, the injury to a victim, and prior attempts at rehabilitation had failed. He appealed, and the sentence was upheld.

Bethea filed for post-conviction relief, alleging his trial counsel was ineffective because he failed to offer evidence that would have undermined the trial court’s findings about the use of a juvenile in the commission of the crime. With regards to the appellate counsel, Bethea argued that he failed to cogently challenge the aggravating factors found by the trial court and also should have challenged the appropriateness of the sentence pursuant to Indiana Appellate Rule 7(B). The post-conviction relief petition was denied.

In Curtis A. Bethea v. State of Indiana, No. 18A05-1107-PC-416, the appellate panel agreed that Bethea’s trial counsel wasn’t ineffective, but they split with regards to the appellate counsel. Bethea had argued that the injury to the victim shouldn’t have been considered in sentencing him because that was an element of a charge that was dismissed pursuant to the plea agreement. He cited Farmer v. State, 772 N.E.2d 1025 (Ind. Ct. App. 2002), and Roney v. State, 872 N.E.2d 192 (Ind. Ct. App. 2007) – which are based on Carlson v. State, 716 N.E.2d 469 (Ind. Ct. App. 1999) – in support.

Judge Terry Crone believed Farmer and Roney stretched the rule in Carlson too far. Carlson held that when a defendant pleads guilty to a lesser-included offense, the trial court could not use the distinguishing element that would otherwise elevate the offense as an aggravating factor. Farmer extended that to hold that trial courts may not use any other facts or circumstances pertaining to charges that are dismissed pursuant to a plea agreement as aggravating factors. Roney extended this concept still further by holding that when a plea agreement is entered, the trial court cannot consider charged or uncharged criminal conduct as an aggravating factor.

“Taken to their logical conclusion, Farmer and Roney would result in prohibiting trial courts from considering conduct admitted by the defendant, conduct that was unknown to the State at the time the plea agreement was entered, or conduct that was not part of the same episode of criminal conduct. These restrictions have no basis in Indiana law,” Crone wrote.

The majority found that although the appellate counsel overlooked sentencing factors that could have been challenged as abuse of discretion or pursuant to Appellate Rule 7(B), Bethea wasn’t prejudiced.

Judge Melissa May concurred in result, in which she upheld the sentence, but she doesn’t share Crone’s position that Farmer and Roney misapplied precedent and should not be followed. Judge Elaine Brown dissented as to the effectiveness of the appellate counsel, finding Bethea met his burden on this issue and she would resentence him accordingly.

 

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  1. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

  3. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  4. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

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