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7th Circuit affirms denial of sentencing relief

August 1, 2017

Though his appellate counsel presented an underdeveloped Appellate Rule 7(B) resentencing argument to the Indiana Court of Appeals, a North Vernon man isn’t entitled to relief because his sentence is not inappropriate, the 7th Circuit Court of Appeals ruled Monday.

In Chas Harper v. Richard Brown, 15-2276, North Vernon police obtained a search warrant for Chas Harper’s home after receiving a tip in October 2007 that Harper had drugs in his home. Execution of the warrant led to the discovery of a stolen firearm, more than 100 grams of methamphetamine, a digital scale, baggies and heroin, as well as a live video surveillance system.

Harper was charged and convicted of dealing meth and heroin and receiving stolen property, and was also found to be a habitual offender based on prior convictions for burglary, battery on a minor, theft and marijuana distribution. Additionally, his record included three misdemeanors and three probation revocations. Taking into account the quantity of meth involved, Harper’s criminal history and his lack of gainful employment, the trial court sentenced Harper to an enhanced aggregate term of 72 years.

On direct appeal in state court, Harper’s appellate counsel argued for a reduction in the 72-year sentence under Indiana Appellate Rule 7(B), arguing the sentence was inappropriate in light of Harper’s offense and character and that enhanced sentences must be based on crimes committed in a particularly egregious manner. The Indiana Court of Appeals affirmed the sentence and noted the Rule 7(B) argument was “devoid of an argument supported by cogent reasoning” and was, thus, waived.

Harper then moved for post-conviction relief on the basis of ineffective assistance of appellate counsel, claiming the Rule 7(B) argument was underdeveloped. The trial court denied the petition and the appellate court agreed, finding the waiver was not prejudicial under Strickland v. Washington, 466 U.S. 668 (1984), because Harper’s sentence was not inappropriate. Thus, the Rule 7(B) argument would have failed even if it had been fully developed.

Harper then moved for federal habeas review under 28 U.S. Code Section 2254, which Judge William T. Lawrence of the U.S. Court for the Southern District of Indiana denied. The 7th Circuit Court of Appeals affirmed that decision Monday, with Judge Diane Sykes writing the Strickland standard was properly applied.

Pointing to a similar, recent decision in the case of Miller v. Zatecky, 820 F.3d 275 (7th Cir. 2016), Sykes wrote that, “(t)he premise of the state court’s Strickland ruling is its holding that Harper’s sentence is appropriate, and so any Rule 7(B) argument would have failed. That’s an application of Indiana law, and on Section 2254 habeas review, we ‘cannot disagree with a state court’s resolution of an issue of state law.’”
 

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