Public defender’s brief stricken, COA orders ‘competent counsel’ appointed

March 11, 2015

The Indiana Court of Appeals reiterated Wednesday for at least the fourth time in seven years to a public defender that he cannot use the “manifestly unreasonable” argument to challenge a client’s voluntary manslaughter sentence.

P. Jeffrey Schlesinger is an appellate public defender appointed to represent Matthew Marcus II in his appeal of a 35-year sentence following his guilty plea to Class A felony voluntary manslaughter. That is the maximum sentence possible under the terms of his plea agreement.

“At the outset, we observe that there are gross deficiencies in Marcus’s appellate Brief,” Judge L. Mark Bailey wrote in Matthew Marcus, II v. State of Indiana, 45A03-1407-CR-230.

Schlesinger argued that a “manifestly unreasonable” sentence was imposed upon Marcus and sought a remand for the imposition of a 25-year sentence. Schlesinger raised this same argument while representing three others on appeal in 2008, 2014 and this year. Each time, the appeals court reiterated that the Indiana Supreme Court replaced that standard more than a decade ago, and Indiana Appellate Rule 7(B) is applicable.

“Apparently oblivious to the direction of this Court and a decade of legal progression, Counsel yet again advocates for a review of his client’s sentence under the manifestly unreasonable standard. He wholly fails to present a cogent argument with citation to relevant authority,” Bailey wrote. “It is within our authority to strike the brief, order the return of attorney’s fees, order Counsel to show cause why he should not be held in contempt of court, or refer the matter to the Supreme Court Disciplinary Commission. We strike the brief and remand the matter to the trial court for appointment of competent counsel.”




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