Dropped charges in habitual offender sentence distinguish conflicting rulings

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A defendant who benefited when charges against him were dropped in exchange for a guilty plea is not entitled to relief under a subsequent Supreme Court ruling weighing the same set of charges, a panel of the Court of Appeals ruled Friday. Judges also drew distinctions with a conflicting COA opinion.

The Court of Appeals in August denied post conviction relief to Robertson Fowler, who received a sentence capped at 35 years in prison in exchange for his guilty plea to possession of a firearm by a serious violent felon with an enhancement for being a habitual offender.

Fowler sought and was granted rehearing, noting the Indiana Supreme Court had held in Mills v. State, 868 N.E.2d 446, 450 (Ind. 2007), that a defendant convicted of unlawful possession of a firearm by a serious violent felon may not have his or her sentence enhanced under the general habitual offender statute by proof of the same felony used to establish that the defendant was a serious violent felon.

Fowler also cited Dugan v. State, 976 N.E.2d 1248, 1249 (Ind. Ct. App. 2012), where the appellate panel held that a defendant facing similar charges was entitled to retroactive application of the Mills rule.

In a three-page unanimous ruling in Robertson Fowler v. State of Indiana, 49A05-1202-PC-68, Judge Melissa May affirmed the panel’s prior denial of post-conviction relief.

“Our Fowler decision is not inconsistent with Dugan,” May wrote. “Dugan, like Fowler, pled guilty to being an habitual offender, but unlike Fowler, Dugan did not receive a favorable outcome from his guilty plea,” because charges were dropped against Fowler in exchange for his plea.

“We accordingly grant Fowler’s petition for rehearing and reaffirm our original decision in all respects,” May wrote.



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