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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. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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