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Man not prejudiced by counsel's deficient performance

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The Indiana Court of Appeals has upheld the decision to deny a man’s request for post-conviction relief, finding that although his attorney’s performance was deficient for not investigating whether a previous conviction attributed to the defendant was really his, the man couldn’t show he was prejudiced.

Brian Roberts was charged with burglary and theft, and the state filed a motion to add an allegation that Roberts was a habitual offender. The motion included a 1996 burglary conviction that belonged to another Brian Roberts. Roberts told his attorney that the 1996 conviction wasn’t his, but the attorney never investigated the matter.

As part of a plea agreement to Class B felony burglary and Class D felony theft, Roberts’ attorney and the state agreed the state wouldn’t pursue the motion to amend the charging information to add the habitual offender allegation in exchange for Roberts’ guilty plea. There was no written plea agreement presented to the court. Before he was sentenced, Roberts tried to have the guilty plea withdrawn, but the motion was denied and he was sentenced to 20 years with five years suspended.

His sentence was upheld on direct appeal, so Roberts filed a motion for post-conviction relief, claiming that he was told if he didn’t plead guilty, he’d face a 30-year sentence for the habitual offender enhancement. The post-conviction court denied his motion for relief.

In Brian Roberts v. State of Indiana, No. 24A04-1011-PC-726, the Court of Appeals affirmed that Roberts’ plea was knowing, intelligent, and voluntary. He knew the 1996 conviction wasn’t his, so he didn’t believe he was eligible for the enhancement. Therefore, the state’s threat to pursue the amendment to add the habitual offender count couldn’t have been his main motivation to plead guilty, wrote Judge Paul Mathias.

His trial counsel should have investigated whether the 1996 conviction was not Roberts’, but that failure wasn’t so material to his decision to plea guilty because he knew that he was not a habitual offender, the judge continued. Roberts’ attorney was also arguably deficient by allowing Roberts to plead guilty without a written plea agreement, but Roberts didn’t establish prejudice due to his attorney’s deficient performance.

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  • huh?
    let me get this right. he plead in exchange for them to drop the habitual offender charge, which was based on a conviction that wasnt his-- and his lawyer, clueless, told him to take the deal because he never bothered with checking that even though his client told him so? and thats not ineffective assistance of counsel? is it supposed to be effective? he gave up something for nothing and thats not being harmed? wow. Gee I hope I dont draw the wrong lawyer card in Indiana if I ever get in trouble.

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  1. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

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