Tammy Davis said Cox using wrong IC regarding Ison
By John Estridge, Editor
The Democratic candidate for Franklin Circuit Court Judge, Tammy Davis, did not attend Judge J. Steven Cox's presentation in the Franklin Circuit Courtroom Thursday night, Sept. 6.
She did not because she believes what occurred was against the canons Cox and she must follow.
"I do not think what he held, whether you want to call it a hearing or a public forum, was ethical," Davis said in an interview in her home Saturday afternoon, Sept. 8. "I still hold it is in violation of judicial canon number four. I don't want to speculate what the commission was told. But I would just want everyone to know that the commission should have all the information about what took place that night, and we'll just see what they say about it."
According to Davis, she is not going to make a public apology about David Ison's release date she has used, because she was using the information she received from the Department of Corrections.
Her advertisement in the Sept. 5 issue of the Brookville Democrat/American shows the letter from DOC Chief Counsel Robert D. Bugher.
"The letter we printed in the paper last week is the retraction," Tommy Davis, Tammy's husband, said. "It clearly states how we got the March 23 date. He (Cox) is fishing for an apology, and that is not going to happen."
"As far as my communication with the commission, they said 'the public needs to know how you got the date you did,' Tammy Davis said. "I said 'can I publish the letter you gave to me?' They said 'yes.' That is clearing up where I got date I did."
And the DOC had the wrong date due to a mistake by the judge's office in not sending the June 11, 2010 order to the Putnamville Correction Facility, Tammy Davis said. That ordered shortened Ison's prison sentence by giving Ison credit time for educational accomplishments.
"As far as the order that was not sent to the DOC, the Department of Corrections, that error was committed by Steve Cox," Davis said. "He prepares his orders and in no way does that shine upon the entire courthouse. The Department of Corrections was not marked on the distribution to receive a copy. And that (order) was prepared by my opponent."
But Tammy Davis goes beyond that. She said Cox was not able to release Ison early because when all the parties, including the trial court, signed off on the Probation Violation agreement giving Ison the two years of the suspended sentence from a 1990 Burglary conviction, that was like signing off to a plea agreement, Tammy Davis said. That is because Ison was not on probation while serving the sentence as Cox said during his Thursday night presentation.
The probation violation agreement must be treated as a plea agreement, and Cox cannot vary from the agreement, Tammy Davis said.
Tammy Davis quotes Indiana Code 35-35-3-3 (e). "If the court accepts a plea agreement, it shall be bound by its terms."
Tammy Davis had a couple of appellate decisions to back up her position. The first one is Brandon Watson vs. State of Indiana. In its decision, the Appellate Court said "the trial court was without power to revoke Watson's probation because it was a party to the April 30, 2004 Stipulation of Probation Modification Agreement, which we find to be akin to a plea agreement. That is, Watson and the State, through the probation department, agreed to a particular punishment, and in turn the State agreed to forego revocation proceedings. The trial court then approved the agreement. A plea agreement is contractual in nature, binding the defendant, the State and trial court."
Another case is Paul Davis vs. State of Indiana.
"An agreement to admit a violation of probation is 'akin to a plea agreement.'" "'A plea agreement is a contract … binding upon both parties when accepted by the trial court. Because a plea agreement is a contract, the principles of contract law can provide guidance in the consideration of plea agreements.'"
Tammy Davis said the motion signed by Cox to release Ison from prison on July 15, 2010 states Cox is modifying Ison's sentence.
It is called Order on Motion to Modify Sentence.
In the order, it states:
"Comes now the Court on its own Motion to Modify Sentence and finds that the Defendant was sentenced to a term of two years with the Indiana Department of Correction. The Court now finds that the balance of such sentence should be suspended to probation. The Court further finds the Defendant is ordered released immediately."
"Even if it is 68 days or a day, by law, he should not have modified this April 11, 2008 admission and agreement on the (probation) violation," Tammy Davis said. "He was not on probation. He was serving a sentence of two years so (Cox's) statute does not apply."
The Admission and Agreement on Probation Violation was signed by then-assistant prosecutor Jonathan Cleary, then-probation officer Paul Storm, Ison and Cox.
"Court's not required to accept the probation agreement entered into in April of 08," Tammy Davis said. "He has every authority to reject that. But once he accepts it, he is bound by it."
In his presentation, Cox told the crowd Tammy Davis was Ison's attorney during the Counterfeiting case and as his attorney, had a Habitual Criminal charge dismissed as part of the plea agreement.
However, Davis said Cox appointed her as Ison's attorney, and as the judge, Cox had the power to reject the plea agreement.
"Yes, I was appointed by Steve Cox as public defender to represent David Ison in the Counterfeiting matter he was sentenced on in Jan. 2008," Davis said.
She said her job was to defend an indigent client to the best of her ability.
"If I don't do the best I can do, I'm subjecting myself to discipline action," Davis said. "Another point he (Cox) stressed is that the prosecutor and I negotiated the habitual charge away. That was on the plea agreement, again doing my job. But ultimately, Steve Cox is the one who accepted it. He does not have to accept a plea agreement.
"In fact, during my course of being public defender, he rejected many of my plea agreements," she continued. "I did my job following the law. He did not follow the law when he let him out."
Tammy Davis has accused Cox of not being in his office very often. Cox countered this with figures. Tammy Davis sticks with her accusation.
"It is common knowledge, not just to me, his vehicle is not parked in that parking spot very ofen up to the point where I announced my candidacy," Tammy Davis said.