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Man can’t challenge sentence as illegal

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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.

 

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  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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