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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. Is it possible to amend an order for child support due to false paternity?

  2. He did not have an "unlicensed handgun" in his pocket. Firearms are not licensed in Indiana. He apparently possessed a handgun without a license to carry, but it's not the handgun that is licensed (or registered).

  3. Once again, Indiana's legislature proves how friendly it is to monopolies. This latest bill by Hershman demonstrates the lengths Indiana's representatives are willing to go to put big business's (especially utilities') interests above those of everyday working people. Maassal argues that if the technology (solar) is so good, it will be able to compete on its own. Too bad he doesn't feel the same way about the industries he represents. Instead, he wants to cut the small credit consumers get for using solar in order to "add a 'level of certainty'" to his industry. I haven't heard of or seen such a blatant money-grab by an industry since the days when our federal, state, and local governments were run by the railroad. Senator Hershman's constituents should remember this bill the next time he runs for office, and they should penalize him accordingly.

  4. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  5. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

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