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Justices: Appeal not available after guilty plea

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A majority of Indiana Supreme Court justices agreed a man who pleaded guilty couldn't appeal the denial of his pre-trial motion to suppress. Yet one justice believed the plea agreement should have been honored according to its terms, which included reserving the right to object to the denial of the motion to suppress.

In Tommy D. Alvey v. State of Indiana, No. 82S01-0902-CR-66, the state's highest court took the case to clear up conflicting decisions by the Indiana Court of Appeals on whether a person who pleads guilty is allowed to challenge the denial of a motion to suppress or other pre-trial motions on direct appeal.

The majority decided those who plead guilty can't challenge these motions on direct appeal based on precedent limiting the right to appeal following a guilty plea. The justices cited Tumulty v. State, 666 N.E.2d 394, 396 (Ind. 1996), and Lineberry v. State, 747 N.E.2d 1151, 1155 (Ind. Ct. App. 2001), to support their ruling.

Justice Frank Sullivan noted that on at least two occasions, the Court of Appeals decided to review the merits of a defendant's pre-trial motion to suppress notwithstanding the fact he had entered a guilty plea, but authority doesn't allow Alvey to challenge his convictions in a direct appeal following his guilty plea.

"To the extent that prior opinions of the Court of Appeals are inconsistent with this conclusion, we disapprove of those decisions," wrote Justice Sullivan. "A trial court lacks the authority to allow defendants the right to appeal the denial of a motion to suppress evidence when a defendant enters a guilty plea, even where a plea agreement maintains that such an appeal is permitted."

Tommy Alvey filed a motion to suppress evidence after he was charged with various drug offenses and carrying a handgun without a license. As part of a plea agreement, he expressly reserved the right to appeal the trial court's ruling on his motion to suppress. The trial court informed him he was allowed to appeal the decision even though he pleaded guilty.

Alvey then appealed the denial of his motion; the Court of Appeals affirmed because it believed his guilty plea foreclosed his right to challenge the pre-trial motions.

Justice Theodore Boehm saw no reason why Alvey's plea agreement shouldn't be kept intact. He voted for remand for consideration of the appeal of the denial of his motion to suppress.

"Permitting such an agreement gives the defendant whatever benefit a guilty plea provides in sentencing and also provides an appeal of the issue that is not subject to discretion of either the trial or appellate court," he wrote in his dissent. "Moreover, if the trial court's ruling on the motion to suppress is reversed, permitting the appeal will have generated an unnecessary sentencing hearing. But neither the court nor the prosecution is under any obligation to agree to such an arrangement unless it is sufficiently confident of success on appeal, or regards the prospect of avoiding a trial a sufficient inducement to agree."

The majority noted some unfairness to Alvey based on his plea because he was told he would be able to appeal the suppression motion. The high court remanded the case to the trial court with instructions to give Alvey the option of proceeding with his current plea, absent the right to appeal the suppression order. If he doesn't exercise that option within 90 days of the certification of this opinion, the plea agreement will be vacated.

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  1. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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