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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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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