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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. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

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  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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