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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. A sad end to a prolific gadfly. Indiana has suffered a great loss in the journalistic realm.

  2. Good riddance to this dangerous activist judge

  3. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  4. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  5. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

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