ILNews

Man can’t challenge sentence as illegal

Back to TopCommentsE-mailPrintBookmark and Share

Because a defendant entered into a beneficial plea agreement, the Indiana Court of Appeals denied his request for post-conviction relief. The man argued that a Supreme Court decision handed down while he was appealing should require that his sentence be reduced.

Robertson Fowler was charged with Class B felony unlawful possession of a firearm by a serious violent felon, Class D felonies pointing a firearm and resisting law enforcement, and being a habitual offender. He agreed to plead guilty to the possession charge and habitual offender enhancement in exchange for his sentenced being capped at 35 years. He faced a maximum of 56 years on the charges.

The judge sentenced Fowler to 15 years each on the possession charge and the habitual offender enhancement. When he entered the agreement, the law allowed the state to use the same prior felony to support a charge of unlawful possession by a SVF and to support a habitual offender enhancement.

Fowler appealed his sentence, and while he still could have filed a reply brief, the Indiana Supreme Court ruled on Mills v. State, 868 N.E.2d 446, 450 (Ind. 2007), which prohibits the state from using the same felony to establish unlawful possession by a SVF and to enhance the sentence under the general habitual offender statute.  Fowler’s attorney didn’t cite Mills in any additional filings. Fowler’s sentence was affirmed on appeal and his post-conviction petition for relief was denied.

The Court of Appeals declined to grant him relief because it ruled Fowler benefited from the plea agreement. Fowler argued that he didn’t benefit because the maximum sentence he faced would have been 26 years based on Mills, and he agreed to plead guilty and was sentenced to 30 years.

“We must decline Fowler’s invitation to measure his ‘benefit’ at a time after he entered into the plea agreement,” Judge Melissa May wrote in Robertson Fowler v. State of Indiana, 49A05-1202-PC-68. “Where a defendant enters a plea of guilty knowingly, intelligently, and voluntarily, there is no compelling reason to set aside the conviction on the ground the sentence was later determined to be invalid.”

The appellate court also declined to adopt the state’s apparent position that post-conviction relief is never available when appellate counsel does not testify in the post-conviction proceedings. The state claimed it’s possible the attorney had reasons for not pursuing a claim.

 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

ADVERTISEMENT