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Judges disagree on impact of caselaw

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In a man’s appeal of the denial of petition for post-conviction relief, in which he claimed ineffective assistance of his trial and appellate counsel, the Indiana Court of Appeals was divided on whether his appellate counsel was ineffective and if caselaw prevented the trial court from considering charges outside of the guilty plea.

Curtis Bethea and several other people, including a minor female, tricked their way into the home of Angela Dailey and Jason Gates. Bethea and the others then confined the victims and robbed them. The victims were also injured in the course of the robbery. Bethea was charged with nine counts, but pleaded guilty to Class B felony robbery of one victim and Class B felony confinement of the other victim.

The judge sentenced Bethea to 40 years total, citing, among other things, Bethea’s criminal past, the teen’s involvement in the crime, the injury to a victim, and prior attempts at rehabilitation had failed. He appealed, and the sentence was upheld.

Bethea filed for post-conviction relief, alleging his trial counsel was ineffective because he failed to offer evidence that would have undermined the trial court’s findings about the use of a juvenile in the commission of the crime. With regards to the appellate counsel, Bethea argued that he failed to cogently challenge the aggravating factors found by the trial court and also should have challenged the appropriateness of the sentence pursuant to Indiana Appellate Rule 7(B). The post-conviction relief petition was denied.

In Curtis A. Bethea v. State of Indiana, No. 18A05-1107-PC-416, the appellate panel agreed that Bethea’s trial counsel wasn’t ineffective, but they split with regards to the appellate counsel. Bethea had argued that the injury to the victim shouldn’t have been considered in sentencing him because that was an element of a charge that was dismissed pursuant to the plea agreement. He cited Farmer v. State, 772 N.E.2d 1025 (Ind. Ct. App. 2002), and Roney v. State, 872 N.E.2d 192 (Ind. Ct. App. 2007) – which are based on Carlson v. State, 716 N.E.2d 469 (Ind. Ct. App. 1999) – in support.

Judge Terry Crone believed Farmer and Roney stretched the rule in Carlson too far. Carlson held that when a defendant pleads guilty to a lesser-included offense, the trial court could not use the distinguishing element that would otherwise elevate the offense as an aggravating factor. Farmer extended that to hold that trial courts may not use any other facts or circumstances pertaining to charges that are dismissed pursuant to a plea agreement as aggravating factors. Roney extended this concept still further by holding that when a plea agreement is entered, the trial court cannot consider charged or uncharged criminal conduct as an aggravating factor.

“Taken to their logical conclusion, Farmer and Roney would result in prohibiting trial courts from considering conduct admitted by the defendant, conduct that was unknown to the State at the time the plea agreement was entered, or conduct that was not part of the same episode of criminal conduct. These restrictions have no basis in Indiana law,” Crone wrote.

The majority found that although the appellate counsel overlooked sentencing factors that could have been challenged as abuse of discretion or pursuant to Appellate Rule 7(B), Bethea wasn’t prejudiced.

Judge Melissa May concurred in result, in which she upheld the sentence, but she doesn’t share Crone’s position that Farmer and Roney misapplied precedent and should not be followed. Judge Elaine Brown dissented as to the effectiveness of the appellate counsel, finding Bethea met his burden on this issue and she would resentence him accordingly.

 

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  1. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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