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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. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

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