Robertson Fowler v. State of Indiana ( 2013 )

FOR PUBLICATION
FILED
Jan 25 2013, 9:11 am
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
STEPHEN T. OWENS GREGORY F. ZOELLER
Public Defender of Indiana Attorney General of Indiana
DEIDRE R. ELTZROTH NICOLE M. SCHUSTER
Assistant Chief Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ROBERTSON FOWLER, )
)
Appellant-Petitioner, )
)
vs. ) No. 49A05-1202-PC-68
)
STATE OF INDIANA, )
)
Appellee-Respondent. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Mark D. Stoner, Judge
The Honorable Jeffrey L. Marchal, Judge Pro Tempore
Cause No. 49G06-0609-PC-181103
January 25, 2013
OPINION ON REHEARING - FOR PUBLICATION
MAY, Judge
Robertson Fowler petitions for rehearing of our decision dated August 31, 2012,
affirming the denial of his petition for post-conviction relief.1 In that opinion, we held
Fowler’s guilty plea precluded him from later challenging his sentence. We grant his
petition for rehearing in order to acknowledge and address a subsequent decision by
another panel of this court that reached a different result in resolving a similar allegation
of error, and we reaffirm our original opinion.
Fowler agreed to plead guilty to unlawful possession of a firearm by a serious
violent felon and an habitual offender enhancement. The habitual offender enhancement
was based on the same prior felony as the handgun possession count. 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 an habitual offender enhancement. In exchange for Fowler’s guilty plea, two other
felony charges were dismissed and his executed sentence was capped at thirty-five years.
Fowler appealed the sentence. After the State filed its Appellee’s brief, and while
Fowler still could have filed a reply brief, our Indiana Supreme Court decided Mills v.
State, 868 N.E.2d 446, 450 (Ind. 2007), 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.
1
Fowler v. State, 977 N.E.2d 464 (Ind. Ct. App. 2012).
2
Fowler’s sentence was affirmed on appeal, and his petition for post-conviction
relief, which was premised on the Mills decision, was denied. We affirmed on the ground
Fowler received a benefit when he entered into his plea bargain, so he could not now
challenge the sentence as illegal. Fowler v. State, 977 N.E.2d 464, 468 (Ind. Ct. App.
2012).
In his petition for rehearing, Fowler directs us to Dugan v. State, 976 N.E.2d 1248,
1249 (Ind. Ct. App. 2012), where another panel of this court held, soon after Fowler was
decided, that Dugan was entitled to retroactive application of the Mills rule. That panel
so held even though Dugan, like Fowler, pled guilty.
Our Fowler decision is not inconsistent with Dugan. Dugan, like Fowler, pled
guilty to being an habitual offender, but unlike Fowler, Dugan did not receive a favorable
outcome from his guilty plea. “The only benefit that Dugan received was a guaranteed
minimum sentence on the habitual offender enhancement, which was the illegal sentence
at issue. This is not a case where other charges were dropped or reduced as a result of
the guilty plea. As a result, we conclude . . . Dugan’s guilty plea does not preclude relief
in this case.” Dugan, 976 N.E.2d at 1251-52 (emphasis added.)
Fowler, by contrast, was “a case where other charges were dropped or reduced as
a result of the guilty plea.” We accordingly grant Fowler’s petition for rehearing and
reaffirm our original decision in all respects.
NAJAM, J., and KIRSCH, J., concur.
3