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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. I work with some older lawyers in the 70s, 80s, and they are sharp as tacks compared to the foggy minded, undisciplined, inexperienced, listless & aimless "youths" being churned out by the diploma mill law schools by the tens of thousands. A client is generally lucky to land a lawyer who has decided to stay in practice a long time. Young people shouldn't kid themselves. Experience is golden especially in something like law. When you start out as a new lawyer you are about as powerful as a babe in the cradle. Whereas the silver halo of age usually crowns someone who can strike like thunder.

  2. YES I WENT THROUGH THIS BEFORE IN A DIFFERENT SITUATION WITH MY YOUNGEST SON PEOPLE NEED TO LEAVE US ALONE WITH DCS IF WE ARE NOT HURTING OR NEGLECT OUR CHILDREN WHY ARE THEY EVEN CALLED OUT AND THE PEOPLE MAKING FALSE REPORTS NEED TO GO TO JAIL AND HAVE A CLASS D FELONY ON THERE RECORD TO SEE HOW IT FEELS. I WENT THREW ALOT WHEN HE WAS TAKEN WHAT ELSE DOES THESE SCHOOL WANT ME TO SERVE 25 YEARS TO LIFE ON LIES THERE TELLING OR EVEN LE SAME THING LIED TO THE COUNTY PROSECUTOR JUST SO I WOULD GET ARRESTED AND GET TIME HE THOUGHT AND IT TURNED OUT I DID WHAT I HAD TO DO NOT PROUD OF WHAT HAPPEN AND SHOULD KNOW ABOUT SEEKING MEDICAL ATTENTION FOR MY CHILD I AM DISABLED AND SICK OF GETTING TREATED BADLY HOW WOULD THEY LIKE IT IF I CALLED APS ON THEM FOR A CHANGE THEN THEY CAN COME AND ARREST THEM RIGHT OUT OF THE SCHOOL. NOW WE ARE HOMELESS AND THE CHILDREN ARE STAYING WITH A RELATIVE AND GUARDIAN AND THE SCHOOL WON'T LET THEM GO TO SCHOOL THERE BUT WANT THEM TO GO TO SCHOOL WHERE BULLYING IS ALLOWED REAL SMART THINKING ON A SCHOOL STAFF.

  3. Family court judges never fail to surprise me with their irrational thinking. First of all any man who abuses his wife is not fit to be a parent. A man who can't control his anger should not be allowed around his child unsupervised period. Just because he's never been convicted of abusing his child doesn't mean he won't and maybe he hasn't but a man that has such poor judgement and control is not fit to parent without oversight - only a moron would think otherwise. Secondly, why should the mother have to pay? He's the one who made the poor decisions to abuse and he should be the one to pay the price - monetarily and otherwise. Yes it's sad that the little girl may be deprived of her father, but really what kind of father is he - the one that abuses her mother the one that can't even step up and do what's necessary on his own instead the abused mother is to pay for him???? What is this Judge thinking? Another example of how this world rewards bad behavior and punishes those who do right. Way to go Judge - NOT.

  4. Right on. Legalize it. We can take billions away from the drug cartels and help reduce violence in central America and more unwanted illegal immigration all in one fell swoop. cut taxes on the savings from needless incarcerations. On and stop eroding our fourth amendment freedom or whatever's left of it.

  5. "...a switch from crop production to hog production "does not constitute a significant change."??? REALLY?!?! Any judge that cannot see a significant difference between a plant and an animal needs to find another line of work.

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