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.



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