MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                              Sep 21 2015, 8:27 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Gregory F. Zoeller
Public Defender of Indiana                               Attorney General of Indiana

Borahm Kim                                               Eric P. Babbs
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael Lindsey,                                         September 21, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A04-1412-PC-576
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable John M.
Appellee-Plaintiff                                       Marnocha, Judge
                                                         Trial Court Cause No.
                                                         71D02-1105-PC-22



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A04-1412-PC-576 | September 21, 2015   Page 1 of 7
                                             Case Summary
[1]   Michael Lloyd Lindsey (“Lindsey”) sought post-conviction relief, arguing that

      he received ineffective assistance of trial counsel in entering open pleas of guilty

      to Attempted Criminal Confinement and Criminal Confinement, each as Class

      B felonies, 1 due to incorrect legal advice from his trial counsel. The post-

      conviction court denied his petition, and he appeals.


[2]   We affirm.



                                                        Issue
[3]   Lindsey presents two issues on appeal. We find one dispositive: whether

      Lindsey’s attorney’s erroneous advice concerning Lindsey’s possible maximum

      sentence, based upon which Lindsey entered an open plea and rejected a plea

      agreement, amounted to ineffective assistance of trial counsel.



                              Facts and Procedural History
[4]   We take a portion of our statement of facts and procedural history from this

      Court’s memorandum decision in Lindsey’s direct appeal:

               On July 31, 2008, Lindsey was released from the Department of
               Correction (“DOC”) after serving a twenty-six year sentence for
               rape and child molesting. On February 24, 2009, Lindsey, in an



      1
       Ind. Code §§ 35-41-5-1 & 35-42-3-3. In light of revisions to Indiana’s criminal statutes, we refer to the
      substantive provisions of our statutes at the time of Lindsey’s offenses.

      Court of Appeals of Indiana | Memorandum Decision 71A04-1412-PC-576 | September 21, 2015             Page 2 of 7
              alleged attempt to “flee the jurisdiction” to avoid the revocation
              of his parole, approached a woman, Kellie Parker, in a
              Mishawaka parking lot while armed with a screwdriver and tried
              to force her into her car. Guilty Plea Hr. Tr. p. 43. Parker
              screamed, and Lindsey fled to his home. While at his home,
              Lindsey grabbed some money and a kitchen knife. Lindsey left
              on foot, went to a bank to withdraw more money, and tried to
              call a taxi to take him to the bus station. Lindsey was unable to
              call a taxi and noticed several police officers in the area.
              Assuming the police officers were looking for him, Lindsey went
              behind some buildings to stay out of sight. Lindsey then saw
              another woman, Lyra Tirotta, getting into her car. Lindsey
              approached her with a knife, forced her into the car, and drove to
              another county. Lindsey eventually let Tirotta go, and he was
              later arrested.


              The State charged Lindsey with one count of Class B felony
              attempted criminal confinement and one count of Class B felony
              criminal confinement. Lindsey pled guilty to the charges. At the
              sentencing hearing, the trial court determined that the offenses
              were not a single episode of criminal conduct, sentenced Lindsey
              to twenty years on each count, and ordered the sentences to be
              served consecutively.


      Lindsey v. State, No. 71A03-0910-CR-486, Slip op. at 2-3 (Ind. Ct. App. Apr. 16,

      2010). This Court affirmed Lindsey’s sentences. Id.


[5]   On May 4, 2011, Lindsey filed a petition for post-conviction relief; post-

      conviction counsel was appointed on August 25, 2011. An evidentiary hearing

      was conducted on July 7, 2014.


[6]   On November 24, 2014, the trial court entered its order denying Lindsey’s

      petition for post-conviction relief. This appeal ensued.

      Court of Appeals of Indiana | Memorandum Decision 71A04-1412-PC-576 | September 21, 2015   Page 3 of 7
                                 Discussion and Decision
[7]   Lindsey appeals the denial of his petition for post-conviction relief.

              Post-conviction proceedings provide defendants the opportunity
              to raise issues not known or available at the time of the original
              trial or direct appeal. Stephenson v. State, 864 N.E.2d 1022, 1028
              (Ind. 2007), cert. denied. If an issue was known and available but
              not raised on direct appeal, the issue is procedurally foreclosed.
              Id. “If an issue was raised and decided on direct appeal, it is res
              judicata.” Id. “In post-conviction proceedings, complaints that
              something went awry at trial are generally cognizable only when
              they show deprivation of the right to effective counsel or issues
              demonstrably unavailable at the time of trial or direct appeal.”
              Sanders v. State, 765 N.E.2d 591, 592 (Ind. 2002).


              “In post-conviction proceedings, the defendant bears the burden
              of proof by a preponderance of the evidence.” Stephenson, 864
              N.E.2d at 1028. We review factual findings of a post-conviction
              court under a “clearly erroneous” standard but do not defer to
              any legal conclusions. Id. We will not reweigh the evidence or
              judge the credibility of the witnesses and will examine only the
              probative evidence and reasonable inferences therefrom that
              support the decision of the post-conviction court. Id.


      Hacker v. State, 906 N.E.2d 924, 926 (Ind. Ct. App. 2009), trans. denied.


[8]   Lindsey sought post-conviction relief on a theory of ineffective assistance of

      counsel.

              To prevail on a claim of ineffective assistance of counsel, a
              petitioner must show two things: (1) the lawyer’s performance
              fell below an “objective standard of reasonableness,” Strickland v.
              Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L. Ed. 2d

      Court of Appeals of Indiana | Memorandum Decision 71A04-1412-PC-576 | September 21, 2015   Page 4 of 7
               674 (1984); and (2) “there is a reasonable probability that, but for
               counsel’s unprofessional errors, the result of the proceeding
               would have been different.” Id. at 694, 104 S. Ct. 2052.
               Effectiveness of counsel is a mixed question of law and fact. Id. at
               698, 104 S. Ct. 2052.


       Segura v. State, 749 N.E.2d 496, 500-01 (Ind. 2001).


[9]    When a petitioner seeking post-conviction relief contends that trial counsel was

       ineffective in advising the entry of a guilty plea,

               where trial counsel has given erroneous advice to a defendant
               regarding possible penalties, “a finding of prejudice requires
               evidence demonstrating a reasonable probability that the
               erroneous or omitted advice materially affected the decision to
               plead guilty.” Segura v. State, 749 N.E.2d 496, 499 (Ind. 2001).
               To meet this burden, a PCR petitioner “may not simply allege
               that a plea would not have been entered. Nor is the petitioner’s
               conclusory testimony to that effect sufficient to prove prejudice.”
               Id. at 507. Rather, a petitioner must demonstrate “special
               circumstances” or “objective facts” supporting the conclusion
               that the decision to plead was driven by the erroneous advice. Id.
               (quoting Hill v. Lockhart, 474 U.S. 52, 60, 106 S. Ct. 366, 371, 88
               L. Ed. 2d 203 (1985) and McCleese v. United States, 75 F.3d 1174,
               1179 (7th Cir. 1996)). In other words, specific facts must
               establish an objectively reasonable probability that competent
               representation would have led a hypothetical reasonable
               defendant to elect to go to trial instead of pleading guilty. Id.


       Hacker, 906 N.E.2d at 926-27.


[10]   Here, Lindsey argues that his trial counsel gave him erroneous advice

       concerning whether his offenses constituted a single episode of criminal


       Court of Appeals of Indiana | Memorandum Decision 71A04-1412-PC-576 | September 21, 2015   Page 5 of 7
       conduct. Trial counsel advised Lindsey that his offenses were a single episode

       of criminal conduct and that Lindsey’s maximum sentence would be thirty

       years imprisonment, two years less than that to which Lindsey had agreed in a

       plea agreement with the State. Accordingly, Lindsey accepted his counsel’s

       advice to enter an open plea, with sentencing left to the discretion of the trial

       court. The court found that Lindsey’s conduct did not constitute a single

       episode of criminal conduct, and sentenced Lindsey to forty years

       imprisonment in the form of two consecutive twenty-year prison terms.

       Lindsey contends that he was prejudiced by trial counsel’s erroneous advice,

       and should have enjoyed the benefit of the plea agreement’s thirty two-year

       term.


[11]   We are bound by the precedent of the Indiana Supreme Court, which has held

       in accordance with the U.S. Supreme Court that a petitioner must present “an

       objectively credible factual and legal basis from which it may be concluded that

       ‘there is a reasonable probability that, but for counsel’s errors, he would not

       have pleaded guilty and would have insisted on going to trial.’” Segura, 749

       N.E.2d at 507 (quoting Hill v. Lockhart, 474 U.S. at 59). In that light, we

       observe that Lindsey stated at his sentencing hearing:

               It was my intention from the very first day I was arrested to plead
               guilty in this case as I asked my attorney, and he was working to
               work out a plea. But it was my intent from day one, your Honor,
               to plead guilty, to take responsibility so that the victims would
               not have to go through a trial or a process that they don’t
               deserve.


       Court of Appeals of Indiana | Memorandum Decision 71A04-1412-PC-576 | September 21, 2015   Page 6 of 7
       Sentencing Tr. at 54. Lindsey reaffirmed this statement during his testimony

       before the post-conviction court. Simply put, Lindsey’s expressed intent to

       plead guilty—with or without a plea agreement—militates against his

       contention that the post-conviction court erred when it concluded that his trial

       counsel was not ineffective.


[12]   Moreover, we observe that even with counsel’s erroneous advice, Lindsey

       obtained a benefit he would not have had under the plea agreement he rejected:

       the opportunity to challenge his sentence on appeal. Lindsey took advantage of

       that benefit in his prior appeal.


[13]   We accordingly find no error in the post-conviction court’s conclusion that

       Lindsey was not prejudiced by his counsel’s incorrect advice as to the penal

       consequences of an open plea.


[14]   Affirmed.


       Baker, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A04-1412-PC-576 | September 21, 2015   Page 7 of 7
