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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. 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?

  2. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

  3. Linda, I sure hope you are not seeking a law license, for such eighteenth century sentiments could result in your denial in some jurisdictions minting attorneys for our tolerant and inclusive profession.

  4. Mazel Tov to the newlyweds. And to those bakers, photographers, printers, clerks, judges and others who will lose careers and social standing for not saluting the New World (Dis)Order, we can all direct our Two Minutes of Hate as Big Brother asks of us. Progress! Onward!

  5. My daughter was taken from my home at the end of June/2014. I said I would sign the safety plan but my husband would not. My husband said he would leave the house so my daughter could stay with me but the case worker said no her mind is made up she is taking my daughter. My daughter went to a friends and then the friend filed a restraining order which she was told by dcs if she did not then they would take my daughter away from her. The restraining order was not in effect until we were to go to court. Eventually it was dropped but for 2 months DCS refused to allow me to have any contact and was using the restraining order as the reason but it was not in effect. This was Dcs violating my rights. Please help me I don't have the money for an attorney. Can anyone take this case Pro Bono?

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