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Judges order habitual offender enhancement vacated

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A post-conviction court erred when it denied a defendant’s request for post-conviction relief to vacate a habitual offender enhancement, finding a case decided after the man’s direct appeal applies retroactively.

John Dugan was convicted of Class B felony possession of a firearm by a serious violent felon in 2006. The state alleged he was a SVF because he had been convicted of Class C felony battery in 1994. The state also alleged Dugan was a habitual offender based on that 1994 conviction and an attempted burglary conviction.

After his conviction, Dugan pleaded guilty to the habitual offender allegation in exchange for the minimum 10-year sentence for the enhancement. His total sentence was 15 years for the SVF conviction enhanced 10 years. The conviction was affirmed on direct appeal in February 2007.

Dugan later sought relief based on Mills v. State, 868 N.E.2d 446 (Ind. 2007), in which the Indiana Supreme Court held a person convicted of unlawful possession of a firearm by a serious violent felon may not have his sentence enhanced under the general habitual offender statute by proof of the same felony used to establish he was a serious violent felon. The post-conviction court denied relief, citing Townsend v. State, 793 N.E.2d 1092 (Ind. Ct. App. 2003), as applicable since it was in effect at the time Dugan was sentenced.

Dugan wanted Mills applied retroactively to his case, which the state fought. The state claimed because Dugan pleaded guilty, he’s not entitled to relief even if Mills is retroactive.

Dugan’s guilty plea does not preclude relief because he did not receive a favorable outcome as a result of the plea, Judge Michael Barnes wrote in John A. Dugan v. State of Indiana, 49A05-1202-PC-50. The judges cited State v. Jones, 835 N.E.2d 1002, 1004 (Ind. 2005), and Ross v. State, 729 N.E.2d 113 (Ind. 2000), to support applying Mills retroactively.

 

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  1. First comment on this thread is a fitting final comment on this thread, as that the MCBA never answered Duncan's fine question, and now even Eric Holder agrees that the MCBA was in material error as to the facts: "I don't get it" from Duncan December 1, 2014 5:10 PM "The Grand Jury met for 25 days and heard 70 hours of testimony according to this article and they made a decision that no crime occurred. On what basis does the MCBA conclude that their decision was "unjust"? What special knowledge or evidence does the MCBA have that the Grand Jury hearing this matter was unaware of? The system that we as lawyers are sworn to uphold made a decision that there was insufficient proof that officer committed a crime. How can any of us say we know better what was right than the jury that actually heard all of the the evidence in this case."

  2. wow is this a bunch of bs! i know the facts!

  3. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  4. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

  5. It's a capital offense...one for you Latin scholars..

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