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No evidence that missed deadline was result of ineffective attorney

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A Boone County man’s failed attempt to get a jury trial was not the result of ineffective counsel but because he missed the statutory deadline, the Indiana Court of Appeals ruled.

Paul J. Livers II appealed his convictions for battery causing bodily injury, a Class B misdemeanor, and interference with reporting a crime, a Class A misdemeanor, arguing that he was denied effective assistance of counsel at trial because his counsel failed to  file a timely motion for a jury trial.

In Paul J. Livers, II v. State of Indiana, 06A01-1303-CR-119, the Court of Appeals affirmed Livers’ convictions, concluding he failed to demonstrate he was denied effective assistance of counsel.  

Defendants in misdemeanor cases must request a jury trial no later than 10 days before the first trial date. Livers received notice on Aug. 15, 2012, that his bench trial was scheduled for Oct. 17, 2012.

On Oct. 17, Livers requested a continuance and the bench trial was rescheduled to Dec. 19, 2012. Then, on Oct. 26, he made his demand for a jury trial, a motion the trial court rejected as untimely.

Livers made a direct appeal, relying only upon the trial record.

“We conclude that the record is insufficient to evaluate Livers’ ineffective assistance of counsel claim on direct appeal,” Judge Patricia Riley wrote for the court. “This court has no testimony from trial counsel which might explain her conduct. Nor is that any indication in the record that Livers wanted a jury trial prior to his counsel’s belated request.”

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  1. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  2. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  3. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

  4. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  5. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

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