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. I think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

  2. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  3. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  4. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  5. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.