Wednesday, October 31, 2012
Ind. Decisions - Court of Appeals issues 3 today (and 16 NFP)
For publication opinions today (3):
In Kevin M. Clark v. State of Indiana , a 7-page opinion, Judge May writes:
Kevin Clark appeals the admission of evidence found in his bag and in the trunk of his car. He also appeals the admission of police testimony regarding the conversion of pseudoephedrine to methamphetamine. We affirm. * * *In Larry Michael Caraway v. State of Indiana , a 7-page opinion, Judge Najam writes:
The trial court did not abuse its discretion in admitting the evidence gleaned from the search of Clark’s bag and car because the officers had reasonable suspicion to stop Clark and search Clark’s bag after he admitted it contained marijuana. Nor did the trial court abuse its discretion when it allowed Trooper Shortt to testify over Clark’s objection because her testimony was opinion testimony of a lay witness based on her experience, and not expert testimony. Accordingly, we affirm.
Larry Michael Caraway appeals his sentence for murder, a felony, following an open guilty plea. Caraway asks that we review and revise his sentence taking into consideration his remorse, guilty plea, and history of alcoholism. He presents a single issue for review: whether his sentence is inappropriate in light of the nature of the offense and his character. * * *In Robertson Fowler v. State of Indiana , an 8-page opinion [ILB: erroneously dated August 31, 2012], Judge May writes:
Caraway has not shown that his sentence is an outlier given the nature of the offense or his character. As such, we affirm his sentence.
Robertson Fowler appeals the denial of his petition for post-conviction relief. We affirm. * * *NFP civil opinions today (6):
When Fowler entered into his plea agreement, Indiana law permitted the State to use the same prior felony to support a charge of unlawful possession of a firearm by a serious violent felon and to support an habitual offender enhancement. See Townsend v. State, 793 N.E.2d 1092, 1097 (Ind. Ct. App. 2003), trans. denied. * * *
In June of 2007, after the State filed its Appellee’s brief, but while Fowler still could have filed a reply brief, our Indiana Supreme Court decided Mills v. State, which held “a defendant convicted of unlawful possession of a firearm by a serious violent felon may not have his or her sentence enhanced under the general habitual offender statute by proof of the same felony used to establish that the defendant was a ‘serious violent felon’” 868 N.E.2d 446, 450 (Ind. 2007) (internal citation and quotation omitted). Fowler’s appellate counsel did not file a reply brief or Notice of Additional Authorities to assert the Mills decision might render Fowler’s sentence improper. Nor did he raise the issue in his transfer petition. Fowler’s sentence was affirmed on appeal, and his motion for post-conviction relief, which was premised on the Mills decision, was denied. * * *
[Illegal Sentence] Even though Fowler’s sentence would presumably have been illegal under the Mills rule, Fowler lost his right to pursue a challenge to it by entering into his plea agreement. A defendant may not enter a plea agreement calling for an illegal sentence, benefit from that sentence, and then later complain the sentence was illegal. Stites v. State, 829 N.E.2d 527, 529 (Ind. 2005). Defendants who plead guilty to achieve favorable outcomes give up a plethora of substantive claims and procedural rights, such as challenges to convictions that would otherwise subject the defendant to double jeopardy. Id. As Fowler received a benefit from his plea agreement, he is precluded from challenging his sentence as illegal. * * *
[Effectiveness of Appellate Counsel] In light of our resolution of the first issue, Fowler was not prejudiced by appellate counsel’s failure to raise Mills on direct appeal, and thus counsel’s assistance was not constitutionally ineffective. [cite omitted] However, we must address the State’s suggestion that ineffective assistance cannot be found if appellate counsel does not testify in a post-conviction proceeding. * * *
While we have no doubt it is more difficult to prove entitlement to post-conviction relief without the testimony of counsel, we cannot adopt the State’s apparent position that post-conviction relief is never available when appellate counsel does not testify in the post-conviction proceedings because “[i]t is possible [counsel] had reasons for not pursuing a claim.” (Id.) As it is presumably always “possible” there are unknown or undisclosed “reasons for not pursuing a claim,” adopting the State’s rationale would effectively preclude a post-conviction remedy in any case where counsel did not testify. We decline the State’s invitation to so hold.
NFP criminal opinions today (10):
Posted by Marcia Oddi on October 31, 2012 02:26 PM
Posted to Ind. App.Ct. Decisions