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Attorneys' performances don't require post-conviction relief

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A LaPorte County man with a lengthy criminal history couldn’t convince the Indiana Court of Appeals that he is entitled to post-conviction relief due to ineffective assistance from his trial and appellate attorneys.

In Charles A. Walker v. State of Indiana, 46A04-1210-PC-519, Charles Walker appealed the denial of his petition for post-conviction relief. He had been convicted of robbery and found to be a habitual offender. He was sentenced to 40 years.

Walker claimed his trial attorney was ineffective by not challenging the sufficiency of the evidence to support the habitual offender finding via a motion for directed verdict. He argued the evidence didn’t establish his identity and the sequence of the predicate offenses. The COA found the attorney was not ineffective with respect to Walker’s identity, as a police officer and probation officer involved in Walker’s 1980 and 1989 convictions, used to support the habitual offender finding, affirmed Walker’s identity.

The judges did find that the trial counsel’s performance was deficient by failing to request a directed verdict after the state didn’t present documentary evidence establishing the proper sequencing of the predicate offenses. But even if his attorney had requested a directed verdict, the state “simply could have requested that the trial court exercise its discretion and grant permission to reopen the case to introduce the 1989 charging information,” Judge Terry Crone wrote. Thus, it’s not reasonably probable that Walker would have received a different outcome on the habitual offender count.

The appellate court also found that the trial attorney was not ineffective in failing to object to the jury instructions regarding the habitual offender finding or to the habitual offender verdict form.

Regarding his appellate counsel, Walker argued that attorney was ineffective by not raising the same habitual offender issues that formed the basis of claims against his trial counsel. Walker’s appellate attorney raised two issues on direct appeal: the sufficiency of evidence supporting the robbery conviction and the appropriateness of the sentence. The appellate court couldn’t determine why the appellate attorney didn’t raise the issue concerning the habitual offender designation because the attorney was deceased at the time of the post-conviction hearing.

The unraised issue of sufficiency of evidence supporting the habitual offender finding was not clearly stronger than the issues raised by the appellate attorney, Crone wrote, pointing to the record on direct appeal. The record also shows that the attorney did request the COA vacate the habitual offender filing in conjunction with his appropriateness of sentence claim.
 

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  1. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  2. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  3. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  4. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  5. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

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