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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. Should be beat this rap, I would not recommend lion hunting in Zimbabwe to celebrate.

  2. No second amendment, pro life, pro traditional marriage, reagan or trump tshirts will be sold either. And you cannot draw Mohammed even in your own notebook. And you must wear a helmet at all times while at the fair. And no lawyer jokes can be told except in the designated protest area. And next year no crucifixes, since they are uber offensive to all but Catholics. Have a nice bland day here in the Lego movie. Remember ... Everything is awesome comrades.

  3. Thank you for this post . I just bought a LG External DVD It came with Cyber pwr 2 go . It would not play on Lenovo Idea pad w/8.1 . Your recommended free VLC worked great .

  4. All these sites putting up all the crap they do making Brent Look like A Monster like he's not a good person . First off th fight actually started not because of Brent but because of one of his friends then when the fight popped off his friend ran like a coward which left Brent to fend for himself .It IS NOT a crime to defend yourself 3 of them and 1 of him . just so happened he was a better fighter. I'm Brent s wife so I know him personally and up close . He's a very caring kind loving man . He's not abusive in any way . He is a loving father and really shouldn't be where he is not for self defense . Now because of one of his stupid friends trying to show off and turning out to be nothing but a coward and leaving Brent to be jumped by 3 men not only is Brent suffering but Me his wife , his kids abd step kidshis mom and brother his family is left to live without him abd suffering in more ways then one . that man was and still is my smile ....he's the one real thing I've ever had in my life .....f@#@ You Lafayette court system . Learn to do your jobs right he maybe should have gotten that year for misdemeanor battery but that s it . not one person can stand to me and tell me if u we're in a fight facing 3 men and u just by yourself u wouldn't fight back that you wouldn't do everything u could to walk away to ur family ur kids That's what Brent is guilty of trying to defend himself against 3 men he wanted to go home tohisfamily worse then they did he just happened to be a better fighter and he got the best of th others . what would you do ? Stand there lay there and be stomped and beaten or would u give it everything u got and fight back ? I'd of done the same only I'm so smallid of probably shot or stabbed or picked up something to use as a weapon . if it was me or them I'd do everything I could to make sure I was going to live that I would make it hone to see my kids and husband . I Love You Brent Anthony Forever & Always .....Soul 1 baby

  5. Good points, although this man did have a dog in the legal fight as that it was his mother on trial ... and he a dependent. As for parking spaces, handicap spots for pregnant women sure makes sense to me ... er, I mean pregnant men or women. (Please, I meant to include pregnant men the first time, not Room 101 again, please not Room 101 again. I love BB)

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