Man can’t challenge sentence as illegal

Because a defendant entered into a beneficial plea agreement, the Indiana Court of Appeals denied his request for post-conviction relief. The man argued that a Supreme Court decision handed down while he was appealing should require that his sentence be reduced.

Robertson Fowler was charged with Class B felony unlawful possession of a firearm by a serious violent felon, Class D felonies pointing a firearm and resisting law enforcement, and being a habitual offender. He agreed to plead guilty to the possession charge and habitual offender enhancement in exchange for his sentenced being capped at 35 years. He faced a maximum of 56 years on the charges.

The judge sentenced Fowler to 15 years each on the possession charge and the habitual offender enhancement. When he entered the agreement, the law allowed the state to use the same prior felony to support a charge of unlawful possession by a SVF and to support a habitual offender enhancement.

Fowler appealed his sentence, and while he still could have filed a reply brief, the Indiana Supreme Court ruled on Mills v. State, 868 N.E.2d 446, 450 (Ind. 2007), which prohibits the state from using the same felony to establish unlawful possession by a SVF and to enhance the sentence under the general habitual offender statute.  Fowler’s attorney didn’t cite Mills in any additional filings. Fowler’s sentence was affirmed on appeal and his post-conviction petition for relief was denied.

The Court of Appeals declined to grant him relief because it ruled Fowler benefited from the plea agreement. Fowler argued that he didn’t benefit because the maximum sentence he faced would have been 26 years based on Mills, and he agreed to plead guilty and was sentenced to 30 years.

“We must decline Fowler’s invitation to measure his ‘benefit’ at a time after he entered into the plea agreement,” Judge Melissa May wrote in Robertson Fowler v. State of Indiana, 49A05-1202-PC-68. “Where a defendant enters a plea of guilty knowingly, intelligently, and voluntarily, there is no compelling reason to set aside the conviction on the ground the sentence was later determined to be invalid.”

The appellate court also declined to adopt the state’s apparent position that post-conviction relief is never available when appellate counsel does not testify in the post-conviction proceedings. The state claimed it’s possible the attorney had reasons for not pursuing a claim.