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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. Well, maybe it's because they are unelected, and, they have a tendency to strike down laws by elected officials from all over the country. When you have been taught that "Democracy" is something almost sacred, then, you will have a tendency to frown on such imperious conduct. Lawyers get acculturated in law school into thinking that this is the very essence of high minded government, but to people who are more heavily than King George ever did, they may not like it. Thanks for the information.

  2. I pd for a bankruptcy years ago with Mr Stiles and just this week received a garnishment from my pay! He never filed it even though he told me he would! Don't let this guy practice law ever again!!!

  3. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  4. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

  5. Pass Legislation to require guilty defendants to pay for the costs of lab work, etc as part of court costs...

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