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Court split on ineffective trial counsel

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A panel of Indiana Court of Appeals judges disagreed that an attorney was ineffective because the majority found the attorney told her client he "should" win the case whereas one judge pointed out in the record the attorney admitted to telling the client he "would" win.

"Based upon the record, I conclude that Rowe demonstrated that his trial counsel's ineffective performance affected the outcome of the plea process and that there is a reasonable probability that, but for trial counsel's errors, the result of the proceeding would have been different," wrote Judge Elaine Brown in her dissent in Terry Rowe, Jr. v. State of Indiana, No. 32A04-0904-PC-186.

Terry Rowe was charged with two counts of Class B felony dealing in cocaine and one count of Class A felony dealing in cocaine after he purchased drugs from a confidential informant. There were police video and audio tapes of the controlled buys. After the confidential informant died, the state offered Rowe a plea agreement. On the advice of his counsel, he declined. He was convicted in a bench trial and given a longer sentence than the plea agreement offered.

His attorney - who was just out of law school and hadn't tried a Class A felony case - told Rowe she thought it would be difficult for the state to prove its case without the informant. According to the record, she testified she told Rowe that he "should" win the case and that he "would" win the case.

The majority agreed with post-conviction court's denial of Rowe's petition for relief because there's evidence to support the post-conviction court's finding the attorney's performance was reasonable, wrote Judge Terry Crone. The judge noted that different interpretations of the record are possible, but the majority couldn't say the post-conviction court's findings and conclusions were clearly erroneous.

Judge Brown wrote Rowe's trial counsel didn't adequately investigate his case and told him that he'd win. In addition to the record showing the attorney testifying she said Rowe would win the case, she also admitted she didn't depose any members of the Drug Task Force before telling Rowe he'd be successful at trial.

Rowe testified he rejected the agreement based on his attorney's advice and if he knew he could have been convicted based on the evidence he would have accepted the plea agreement.

The appellate court also addressed the state's argument that to establish prejudice, Rowe must show that he would have accepted the plea agreement had he known there was a possibility of conviction without the confidential informant, and the trial court would have accepted the plea agreement. Citing Lessig v. State, 489 N.E.2d 978, 983 (Ind. Ct. App. 1986), the Court of Appeals, without addressing the merits as applied to the instant case, held the correct reading of Lessig is that a defendant must put forth evidence that the trial court is legally permitted to accept his plea agreement.

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  1. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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