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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. "...not those committed in the heat of an argument." If I ever see a man physically abusing a woman or a child and I'm close enough to intercede I will not ask him why he is abusing her/him. I will give him a split second to cease his attack and put his hands in the air while I call the police. If he continues, I will still call the police but to report, "Man down with a gunshot wound,"instead.

  2. And so the therapeutic state is weaonized. How soon until those with ideologies opposing the elite are disarmed in the name of mental health? If it can start anywhere it can start in the hoosiers' slavishly politically correct capital city.

  3. So this firebrand GOP Gov was set free by a "unanimous Supreme Court" , a court which is divided, even bitterly, on every culture war issue. WHAT A RESOUNDING SLAP in the Virginia Court's face! How bad must it have been. And all the journalists, lap dogs of the status quo they are, can do is howl that others cannot be railroaded like McDonald now??? Cannot reflect upon the ruining of Winston and Julia's life and love? (Oh I forget, the fiction at this Ministry of Truth is that courts can never err, and when they do, and do greatly, as here, why then it must be ignored, since it does not compute.)

  4. My daughter is a addict and my grandson was taken by DCS and while in hospital for overdose my daughter was told to sign papers from DCS giving up her parental rights of my grandson to the biological father's mom and step-dad. These people are not the best to care for him and I was never called or even given the chance to take him, but my daughter had given me guardianship but we never went to court to finalize the papers. Please I have lost my daughter and I dont want to lose my grandson as well. I hope and look forward to speaking with you God Bless and Thank You for all of your help

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