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Judges reduce sentence due to ineffective trial counsel

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The Indiana Court of Appeals Wednesday ordered a Lake Superior court to resentence a man to 23 years for his convictions stemming from a drunken-driving accident that killed another man. Joseph Scott’s trial attorney was ineffective because he failed to inform Scott of the correct maximum sentence he could face.

Scott pleaded guilty to four counts, but only two were accepted by the trial court: Class B felony operating a vehicle with a BAC of at least 0.18 grams per deciliter causing death, and Class B felony resisting law enforcement causing death. A Merrillville police officer tried to pull Scott’s car over, but Scott fled and struck and killed Kirk Mitchell.

Scott’s attorney, Bruce Parent, advised him that the maximum sentence he could receive for pleading guilty would be 30 years. Scott was sentenced to 15 years each on the operating charge and resisting charge, to be served concurrently, with five years of Count II suspended to a diversion program.

Scott did not appeal his sentence. Instead, three years later he filed his petition for post-conviction relief, alleging ineffective assistance of trial counsel and that the consecutive sentences are fundamental error. The post-conviction court denied the request.

The Court of Appeals only addressed Scott’s claim of ineffective assistance of trial counsel. The judges ruled that Parent was ineffective for advising Scott that the maximum sentence he could receive was 30 years in prison. Caselaw says that Scott’s two convictions can’t both be enhanced by Mitchell’s death. Without those enhancements, Scott’s BAC conviction would have been a Class A misdemeanor and his resisting conviction would have been a Class D felony.

If he had gone to trial, his resisting conviction would have been reduced at trial to avoid punishing Scott twice for Mitchell’s death, Judge Cale Bradford wrote in Joseph J. Scott v. State of Indiana, 45A04-1208-PC-420. Parent’s failure to inform Scott of this rendered Scott’s plea unintelligent.

Scott is entitled to a sentence reduction to no greater than 23 years in prison, so the judges ordered the trial court to impose that sentence, all executed.

 

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  1. 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).

  2. 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.

  3. 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.

  4. 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!!

  5. @ Rebecca D Fell, I am very sorry for your loss. I think it gives the family solace and a bit of closure to go to a road side memorial. Those that oppose them probably did not experience the loss of a child or a loved one.

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