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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  1. Great observation Smith. By my lights, speaking personally, they already have. They counted my religious perspective in a pro-life context as a symptom of mental illness and then violated all semblance of due process to banish me for life from the Indiana bar. The headline reveals the truth of the Hoosier elite's animus. Details here: Denied 2016 petition for cert (this time around): (“2016Pet”) Amicus brief 2016: (“2016Amici”) As many may recall, I was banned for five years for failing to "repent" of my religious views on life and the law when a bar examiner demanded it of me, resulting in a time out to reconsider my "clinging." The time out did not work, so now I am banned for life. Here is the five year time out order: Denied 2010 petition for cert (from the 2009 denial and five year banishment): (“2010Pet”) Read this quickly if you are going to read it, the elites will likely demand it be pulled down or pile comments on to bury it. (As they have buried me.)

  2. if the proabortion zealots and intolerant secularist anti-religious bigots keep on shutting down every hint of religious observance in american society, or attacking every ounce of respect that the state may have left for it, they may just break off their teeth.

  3. "drug dealers and traffickers need to be locked up". "we cannot afford just to continue to build prisons". "drug abuse is strangling many families and communities". "establishing more treatment and prevention programs will also be priorities". Seems to be what politicians have been saying for at least three decades now. If these are the most original thoughts these two have on the issues of drug trafficking and drug abuse, then we're no closer to solving the problem than we were back in the 90s when crack cocaine was the epidemic. We really need to begin demanding more original thought from those we elect to office. We also need to begin to accept that each of us is part of the solution to a problem that government cannot solve.

  4. What is with the bias exclusion of the only candidate that made sense, Rex Bell? The Democrat and Republican Party have created this problem, why on earth would anyone believe they are able to fix it without pushing government into matters it doesn't belong?

  5. This is what happens when daddy hands over a business to his moron son and thinks that everything will be ok. this bankruptcy is nothing more than Gary pulling the strings to never pay the creditors that he and his son have ripped off. they are scum and they know it.