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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 Before he was sentenced, Roberts tried to have the guilty plea withdrawn, but the motion was denied and he was sentenced to 20 years with five years suspended.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. 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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