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Death By Lethal Subjection Contents Death By Lethal Subjection Obstruction Of Justice Criminal File 1 Criminal File 2 Criminal File 3 Criminal File 4 Criminal File 5 Criminal File 6
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CRIMINAL FILE 4 FACTS IN SUPPORT OF ISSUES PRESENTED: (Continued) GROUND TWO FACTS The Motion to Enter Guilty Plea and attached Recommendation used by the Court in Sholes' guilty plea and sentencing proceedings hereinafter "plea agreement") was erroneous as a matter of law in that: (i) It forbade Sholes any right to present mitigation evidence or have the Court consider mitigation evidence even though the plea agreement indicated that he was still facing a possible death penalty as to Count 2 (despite the recommendation of an enhanced sentence of life without parole), and even though Counts 1, 3, and 4 called for open sentencing ranges; (ii) It forbade Sholes to argue to the court that mitigators outweighed the aggravators, and forced him to stipulate that the aggravating factors outweighed the mitigators, even though at least one of the aggravators cited in the plea agreement (fireman killed in the course of his duty) was factually and legally erroneous, and even though there was extensive mitigation evidence present, including: 1) Sholes' lack of serious criminal record (The Indiana State Police had issued Sholes a permit to carry a concealed weapon for the twelve years prior to the offense); 2) excellent life conduct, community service, and employment history; 3) his history of psychiatric problems; 4) Psychiatrist, Dr. Bonnano's, malpractice in prescribing highly addictive medication to Sholes, knowing his substance abuse history; 5) sexual abuse experience at age four; 6) saving a man's life who had been stung by a swarm of bees; 7) his commitment to a life of helping others; 8) scientific documentation establishing that he was so intoxicated at the time of the offense that he lapsed thereafter into a coma with severe respiratory depression, and had virtually no recall of what happened, so mentally impaired and with diminished capacity was he due to intoxication. Clearly, the August 6, 1996 paramedic report and Wabash Hospital emergency room report show Sholes had lapsed into an drug/alcohol coma minutes after the criminal offense. Further, these reports scientifically verify Sholes' physiological condition, which included: .232 blood alcohol level (serum); positive drug screen for Darvon (actually Klonopin), a sedative, and Pseudoephedrine (Sudafed); gross respiratory depression, 4-10 breathes per minute; fixed and constricted pupils; elevated carbon dioxide blood gas levels; lowered oxygen blood gas levels; very high (sinus-tacky) heartbeat rhythm, while unconscious; elevated blood-pressure; and unresponsive unconsciousness that lasted several hours, all classic symptoms of drug/alcohol overdose; (iii) It used a factually and legally erroneous aggravating factors, including the death of a fireman in the course of his duties, when the facts showed that the statutory elements of this aggravator at Indiana Code 35-50-2-9 were not met, in that the victim did not meet the definition of "volunteer fireman" under Indiana Code 36-8-12-2, and was not acting in the course of his duties and within his jurisdiction when he was killed. Additionally, with this statutory aggravator removed, Sholes would not have received life in prison without possibility of parole. The remaining aggravation of the facts and circumstances of the crimes themselves did not necessarily or automatically outweigh the extensive mitigators present (set forth in Ground Two Facts, (ii), above), and the part of the plea agreement that said the two aggravators outweighed any possible mitigators the defendant could present therefore could no longer stand; (iv) Sholes was incapable of formulating, and did not adequately provide, a factual basis for the offenses charged and most-importantly, for the aggravators used of knowingly and intentionally killing multiple people and a fireman in the course of his duties, as set forth in the plea agreement, at the time of the guilty plea and sentencing hearing. Drugs and alcohol so gravely intoxicated him at the time the crimes occurred that he could not recall what happened. He lapsed into a coma with severe respiratory depression after the incident. (see, Ground One Facts, (xv), above). He was able to lay a factual foundation at the hearings only due to extensive "recreating" in his mind of the events by his attorney having him read over and study the case file, police reports, and newspaper accounts, then asking him leading questions capable of single word answers at the hearing. A victim stated at the sentencing hearing that Sholes' "factual basis" was completely incorrect, and it was apparent then that Sholes did not even recognize him. The Court was aware of this factual dispute and chose to ignore it, accepting Sholes' "created" account to convict him; (v) It forbade mitigation evidence to be presented by Sholes when the mitigation evidence was itself relevant to guilt as to the crimes, relevant as to the aggravating factors set forth by the State, and relevant as to the punishment imposed; (vi) The plea agreement specifically disallowed the Court from having to include, weigh, and specifically set forth all mitigating and aggravating factors and circumstances in rendering its sentence. (see Ground Two Facts, (ii), above). The sentences as to at least three of the four counts charged were left open within a range, making mitigation and explanation of the sentences necessary. Any enhancement of a sentence above the presumptive, as occurred here, is required under Indiana law, to be specifically addressed and explained, with balancing on the record of all relevant mitigators and aggravators. (see, Ind. Code 35-38-1-7.1)(see, Ind. Code 35-50-2-9(g)(2) and (1)(2))). GROUND THREE FACTS The manner and the procedures by which Sholes' guilty plea was taken and by which he was sentenced were improper, in that: (i) Sholes was incapable of laying a factual foundation, and did not lay an adequate factual foundation, sufficient to convict him of the charged crimes and to aggravate him to life without possibility of parole. Alcohol and drugs so gravely intoxicated Sholes at the time of the offenses that he could not remember what had happened. He lapsed into a coma with severe respiratory depression right after the events occurred. His factual basis amounted to facts placed into his memory by his attorney having him read over the case file, police reports, and newspaper coverage of what had occurred, then his attorney coached him through the hearing by asking leading questions that Sholes could answer with a single word answer; (ii) The Court failed to include and articulate its consideration and weighing of all relevant mitigators and aggravators in imposing sentence. (see, Ground Two Facts, (ii), above). Additionally, the Court failed to assign and explain the weight given to aggravators and mitigators, which enhanced Sholes' sentence on murder Count Two to life without parole and on Counts One and Three to sixty-five years, and enhanced Sholes sentence on attempted murder to fifty years. Furthermore, the presiding judge, as he stated in the Sentencing Transcript, was still required by law to weigh, balance, and explain the weight given to the mitigators and aggravators even though no mitigators were presented and erroneous aggravators were used, which amounted to a mockery of the statutory requirements governing enhancements. Still, the Court listed seven aggravators, one of which was also used as one of the two mitigators listed, and still others were erroneous, either considered part of the element of the crime or not otherwise applicable by law (see, Ind. Code 35-38-1-7.1)(see, Ind. Code 35-50-2-9(g)(2) and (1)(2)); (iii) The Court failed to afford Sholes an opportunity to present significant mitigating factors (see Ground One Facts, (xxii); Ground Two Facts, (ii) and (vi), above) despite their relevance to his guilt of the offense, to the aggravators used, and the sentences to be imposed. Sholes was completely denied the right to present mitigation. Sholes was completely denied the right to argue that mitigators outweighed aggravators, even when some of the aggravators used by the prosecution and judge were actually factually and legally inapplicable. Sholes was, in effect, forced to concede the aggravators outweighed the mitigators before Sholes knew he even had any or what they were because counsel had told Sholes and the Court, during pre-trial and after conviction at Sholes' original post-conviction hearing, he had no mitigation, despite Sholes' payment of mitigation investigator fees in excess of fourteen thousand dollars for over three hundred hours of work; (iv) The Court failed utterly to afford Sholes required "death penalty" case protections and procedures required by statute, even though under the plea agreement death remained an option of the court if it rejected the Prosecutor's recommendation. (see, Ground 5). GROUND FOUR FACTS Sholes did not enter into his plea agreement voluntarily, intelligently, and knowingly, in that he was pressured, tricked, coerced, and misadvised by court, prosecutor, and counsel as to the plea agreement and its terms. He was not told that under its terms a death sentence was still an option. He was not told that he was entitled to "death penalty"-style proceedings and procedures. Sholes had been made earlier to believe that he was facing the death penalty, and that the plea agreement would absolutely assure him that he would not receive the death penalty, that the death penalty would no longer be an option. Sholes was coerced into accepting an extremely harsh plea agreement for life imprisonment without parole plus terms of years, by being told that death was an option in his case since a fireman was killed in the course of his duties. Yet this was an erroneous aggravator, both in fact and law, in Sholes' case (see, Ground Two Facts, (iii), above) and he was duped into feeling its pressure as a possible result in his case or factor in sentencing, when he was considering whether to accept the plea agreement. Sholes was made to believe all along that his counsel was preparing for trial and investigating and pursuing defenses, when it was ultimately clear that counsel was only working towards a plea agreement. Counsel ignored and proceeded in completely other directions than, the clear-cut defenses of diminished capacity due to severe intoxication and progressive mental collapse, which Sholes had available. When time had run out and Sholes' money had run out, and Sholes felt completely full of despair and hopelessness, counsel then brought forth the plea agreement which counsel had been working towards all along in reality. GROUND FIVE FACTS Sholes acted in accepting the plea agreement without being fully aware that under its language (pursuant to page 2, paragraphs 6(A) and 7(A) of the Motion to Enter a Guilty Plea, and page 6, paragraph 2 of the attached "Recommendation") he still faced a possibility of receiving the death penalty for the crimes if the judge rejected the recommendation of the prosecutor for life imprisonment without parole. His attorney misadvised him as to the meaning and terms of the guilty plea. GROUND SIX FACTS Sholes' guilty plea was not knowingly and intelligently entered into because of Sholes' unfit mental and emotional state at the time he agreed to take the guilty plea and at the time of the hearing on the guilty plea. Sholes was psychiatrically impaired by a pre-existing mental condition that he had previously been receiving treatment for prior to the offense, but for which defense counsel prohibited Sholes from continuing to receive medication, treatment, and therapy, leading up to the time of the plea agreement. Additionally, counsel was aware of, and did nothing about, the psychological and physical coercion employed by the Sheriff of Wabash County, at the behest of the prosecutor, against Sholes that included the use of constant noise and sleep deprivation, keeping the power to Sholes' jail cell on and coached planted cellmate, James Walsh, to play the television at full volume 24 hours a day when the power to all other jail televisions was shut off at 11:00 PM, and life threatening intimidation by this cellmate to effect a plea agreement. Under these circumstances, Sholes was incapable of coherent thought and reasoning, and suffering from depression, to such a degree that he was not in a condition to consider or accept a plea. GROUND SEVEN FACTS Sholes was incapable of laying, and did not lay, a sufficient factual basis and admission of guilt to the charged offenses, to justify the acceptance of the guilty plea and a finding of guilt to all charged offenses. The trial court erred in finding that a factual basis existed for and in accepting the plea to all offenses charged. The "facts" Sholes testified to were directly prompted by counsel and consisted only of deliberately-planted "memories" and rehearsed acts, since Sholes had almost no direct personal recollection of what had happened to give rise to the criminal offenses for which he was pleading guilty. Once Sholes was coerced into accepting the plea, counsel said, "That's good, but we only have one problem. You don't have enough memory to establish a factual basis for the plea." Some key facts which Sholes testified-to from his planted "memories"/rehearsed statements, were created and fabricated to fulfill the plea requirements but were directly refuted by a surviving victim in the course of Sholes' guilty plea/sentencing proceedings, and the court was fully aware of this and that Sholes earlier had indicated he was incapable of understanding or remembering his actions. The Court and prosecutor were aware that Sholes had been highly intoxicated by alcohol and drugs at the time of the offense, and had went into an alcohol/drug-induced coma with severe respiratory depression shortly after the incidents involved. EMT and Wabash Hospital emergency room reports clearly established Sholes' severe intoxication and comatose status for the record. (see Ground One Facts, (xv), above). Based upon all these facts and circumstances, it was apparent that Sholes simply lacked sufficient factual recall of the incidents or the intent to commit the offenses at the time of the incidents, so as to be able to plead guilty to having knowingly and intelligently committed each and every one of the offenses. GROUND EIGHT FACTS The Court violated the applicable sentencing provisions of the Indiana Code, when it proceeded to hold a sentencing hearing not in compliance with the "death penalty" statutes' requirements and procedures; proceeded to sentence Sholes to an aggravated sentence of life in prison without parole when the aggravator used for that enhancement (death of a fireman in the course of his duties) was factually and legally invalid; failed to include, articulate, and weigh all mitigators and aggravators; denied Sholes the right to present highly-relevant and extensive mitigation evidence; automatically held that the aggravators exceeded the mitigators (plainly harmful when the fireman aggravator was factually and legally invalid); and sentenced Sholes to an enhanced sentence of life in prison without parole when there was no basis in fact or law for the imposition of that particular enhanced sentence and when a jury, by law, should be the body that hears the facts and decides to enhance the sentence beyond the statutory maximum, after a full and fair presentation of all of the aggravating and mitigating circumstances. (Ind. Code 35-38-1-7.1 and Ind. Code 35-50-2-9(g)(2) and (1)(2); (see, Ground Two facts, (ii) and Ground three Facts (ii), above). GROUND NINE FACTS Sholes was denied the right to present relevant and extensive mitigation evidence (see, Ground Two Facts, (ii), and Ground Eight Facts, above), and was denied any right to argue mitigators outweighed aggravators. Sholes was sentenced to life in prison without parole based on a factually and legally invalid aggravator (death of a fireman in the course of his duties). GROUND TEN FACTS Wabash County Prosecutor, Alfred H. Plummer III, knew there were discrepancies as a matter of fact and law between the handwritten, typed, and sworn affidavit version of Largo Fire Chief Donald Fleck's testimony supporting that Volunteer Fireman John W. Swan II was a "volunteer fireman acting in the course of his duties", (All three versions are available), and submitted this invalid aggravator as evidence that would be material to guilt and/or punishment. Mr. Plummer further committed prosecutorial misconduct when, acting as a minister of the court and having been made aware of Judge Hunt's misconduct, failed to challenge Judge Hunt's misconduct in any way. (Judge Hunt engaged in talking to a reporter about his intention to deny a motion in Sholes' pending matter, made false statements regarding the content of said conversation with a reporter, and falsified records to cover up his actions.). Mr. Plummer strategically leaked information to the public during the criminal proceedings in an attempt to gather groundswell support for the death penalty against Sholes, as evidenced by various newspaper articles and various facts surrounding the offense known only to Mr. Plummer. Mr. Plummer introduced into the record (outside of any hearing or normal evidentiary procedure, so that Sholes and his counsel could only belatedly object to the fact (see Defendant's Objection to Citizens' petition as Evidence at Sentencing hearing), letters and petitions from citizens which prejudiced Sholes and introduced public sentiment and opinions of no relevance into the proceedings. GROUND ELEVEN FACTS The Indiana Attorney General's Office advised and threatened Sholes' defense counsel that he should drop any attempt to further investigate or present as a defense in Sholes' behalf, the voluntary intoxication, with diminished capacity, defense of Sholes' diminished mental capacity due to extreme alcohol and drug intoxication and progressive mental collapse. (see, Ground One Facts, (xv), above). Counsel then failed to do anything further to prepare or present this defense, which previously had been a key element of Sholes' defense effort. (see Ground one Facts, (xiv), (xix), (xxiv), above). The prosecutor engaged in a dubious scheme, along with and at the behest of the Indiana Attorney General, to deny Sholes the use of voluntary intoxication defense through threats, intimidation, and coercion, coordinating efforts with Sholes' trial counsel, in order to secure a plea agreement and keep this matter from going to trial; thereby, avoiding a possible acquittal on charges of murder. (see, Ground One Facts, (xii), Ground Two Facts, (i)-(vi); Ground Six Facts; and Ground Ten Facts, above; and Ground Twelve Facts, below). GROUND TWELVE FACTS Wabash County Sheriff Tim Roberts, at the behest of the prosecutor, deliberately made false statements and misrepresentations to defense trial counsel to the effect that there were sworn and transcribed statements alleging Sholes made incriminating statements to a jailhouse informant (Walsh) while Sholes was in jail, when no such statements existed. Partially as a result, Sholes and his counsel changed strategies and ultimately opted to take a plea agreement. GROUND THIRTEEN FACTS Defense counsel entered into representation of the interests of some of the victims of the crime in a related civil damage suit, and used information he obtained in his representation of Sholes in the criminal matter as part of his civil representation in the other matter. Counsel used the intoxication with diminished capacity defense that he denied to Sholes in his criminal proceedings, as part of his strategy and efforts in the related civil proceeding. (see, Ground One Facts, (xix), (xxii), (xxiv), (xxvi), above). GROUND FOURTEEN FACTS The State of Indiana introduced into the record through the pre-sentence investigation report, a prejudicial and privileged psychiatric evaluation of Sholes which went beyond simply reporting to the court on the issue of Sholes' competency and which contained statements and admissions made without proper legal advisement of Sholes, waiver of his Fifth Amendment rights to no have to incriminate himself, and rights to privacy and doctor/patient confidentiality, nor informing him how the information taken from him would be used. Counsel had coached, led, and planted memories to "refresh" Sholes' memories prior to the State forensic interview, which were not his memories at all. (see, Ground One Facts, (xiv), above). GROUND FIFTEEN FACTS Sholes, though charged with a death penalty offense, and still facing a possible death sentence in sentencing under the terms of the plea agreement if the judge rejected the State's recommendation of life imprisonment with possibility of parole, was utterly denied the full panoply of "death penalty case" processes, procedures, and protections by the court, both initially in his case and during the course of pre-trial proceedings, nor at the time of his guilty plea and sentencing. Indiana statutes pertaining to procedures and processes for death penalty offenses were not followed. (See Ind. Code 35-50-2-9 (g)(2) and (1)(2)). (see, Ground Two Facts, (ii); Ground Three Facts, (ii); Ground Eight Facts, above). GROUND SIXTEEN FACTS The Court accepted, filed, considered, used, and acted against Sholes in his guilty plea and sentence aggravation, on the basis of high irrelevant, improper, prejudicial, and unsubstantiated/unsubstantiable letters from the public and a petition of some 1189 signatures of the public. These were not from victims in the case, but were from members of the general public who may have or may have not known anything about the case. Some were from other states altogether. These expressed uniformed opinions about the case advocated harshness towards Sholes. Sholes and his counsel had no way to confront or cross-examine these petitioners/letter writers. The State put these into evidence outside of any hearing, so counsel could only belatedly object to them after they were already in the court file record. (see Defendant's Objection to Citizens' Petition as Evidence at Sentencing hearing). Despite counsel's filed objection, the Court specifically referred to, considered, and used the petitions and letters in making its decision on the guilty plea and sentence. Special Judge Hunt gave personal, philosophical, and political statements and opinions in accepting the plea and sentencing, which clearly showed he was trying to make a statement by what he was doing in Sholes' case, and which showed he was heavily-influenced by public sentiment and feelings, as exemplified by the letters and petitions mentioned above here in Ground Sixteen. GROUND SEVENTEEN FACTS During the guilty plea procedures (Guilty Plea Hearing Transcript: p. 22, lines 9-14), Judge Hunt indicated to Sholes that he was giving up his right to present mitigators "in regard to the life in prison without parole." This, however, is a misrepresentation and misstatement regarding the plea agreement, which indicates Sholes was giving up his right to all mitigation as to all offenses charged. The court, prosecutor, and his own counsel clearly believed that the plea agreement forbade all mitigation, not just to the life in prison part of the sentence. Judge Hunt further did not tell Sholes that the plea agreement maximum sentence still might include that Sholes could be put to death, again misrepresenting and misstating the plea agreements terms. (Guilty Plea Hearing Transcript: p. 22-23. And see line 24 at bottom of page 23, where Judge Hunt indicates that "under certain circumstances" the death penalty might still be had.) Sholes took the plea agreement specifically to foreclose any risk of receiving the death penalty, after counsel delayed any real pursuit of a defense so as to coordinate his efforts with the Wabash County Prosecutor's filing of the death penalty, six months later, to coerce a plea agreement, and after his counsel specifically advised him that the plea agreement forbade the death penalty under any circumstance, if he accepted it.
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