MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Oct 17 2017, 6:05 am
court except for the purpose of establishing
                                                                             CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
estoppel, or the law of the case.                                             and Tax Court




ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Curtis T. Hill, Jr.
Public Defender of Indiana                               Attorney General of Indiana

Jonathan O. Chenoweth                                    Ellen H. Meilaender
Deputy Public Defender                                   Supervising Deputy Attorney
Indianapolis, Indiana                                    General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael Sharp,                                           October 17, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         12A05-1702-PC-303
        v.                                               Appeal from the Clinton Superior
                                                         Court
State of Indiana,                                        The Honorable Justin H. Hunter,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         12D01-1303-PC-282



Altice, Judge.


                                          Case Summary


Court of Appeals of Indiana | Memorandum Decision 12A05-1702-PC-303 | October 17, 2017           Page 1 of 12
[1]   Michael Sharp appeals from the denial of his petition for post-conviction relief.

      On appeal, he asserts that the post-conviction court erred in rejecting his claims

      of ineffective assistance of trial and appellate counsel.


[2]   We affirm in part, reverse in part, and remand with instructions.


                                       Facts & Procedural History


[3]   C.S. was born in 1996. Between August 2007 and August 2008, when C.S. was

      ten and eleven years old, he lived with his father and stepmother, but would

      spend every other weekend with his mother and Sharp, his stepfather. During

      those every-other-weekend visits, Sharp would come into C.S.’s bedroom at

      night and both fondle and “suck[]” C.S.’s penis. Trial Transcript at 77. C.S.

      would tell Sharp to stop and Sharp would then return to his room. Sharp,

      however, continued to molest C.S. every other weekend when C.S. was visiting.

      Sharp told C.S. it was a “secret” and that he (Sharp) would “go to jail” if C.S.

      told anyone about it. Id. at 78. In October 2008, C.S. disclosed Sharp’s

      molestations to his stepmother.


[4]   On October 17, 2008, the State charged Sharp with one count of Class A felony

      child molesting (deviate sexual conduct) and one count of Class C felony child

      molesting (fondling), both of which alleged that the molestations occurred “on

      or between August 1, 2007 and August 31, 2008.” Direct Appeal Appendix at 95.

      At the conclusion of a two-day jury trial, the jury found Sharp guilty as

      charged. The trial court held a sentencing hearing on October 4, 2010. At the

      sentencing hearing, the prosecutor, in discussing aggravating factors, stated that

      Court of Appeals of Indiana | Memorandum Decision 12A05-1702-PC-303 | October 17, 2017   Page 2 of 12
      pursuant to Ind. Code § 35-50-2-2(i) (2008)1, the minimum executed sentence

      for Sharp’s Class A felony was thirty years rather than twenty. Defense counsel

      likewise erroneously indicated that the court’s sentencing discretion was limited

      by statute to a range of thirty to fifty years for Sharp’s Class A felony

      conviction.


[5]   The trial court then identified aggravating and mitigating circumstances and

      determined that the aggravators “substantially outweigh[ed]” the mitigators.

      Direct Appeal Appendix at 147. The trial court sentenced Sharp to forty years

      executed on the Class A felony, a sentence the trial court deemed “most

      appropriate under the circumstances,” and a concurrent six-year sentence on

      the Class C felony. Trial Transcript at 217.


[6]   The trial court also found Sharp to be a credit restricted felon (CRF). See Ind.

      Code § 35-41-1-5.5 (2008).2 In its written sentencing order, the trial court

      recognized that the time period of the offenses overlapped the July 1, 2008




      1
        At the time of Sharp’s sentencing hearing, I.C. § 35-50-2-2(i) provided that if a person was convicted of
      Class A felony child molesting against a victim less than twelve years of age and the person was at least
      twenty-one years of age, the court “may suspend only that part of the sentence that is in excess of thirty (30)
      years.”
      2
          I.C. § 35-41-1-5.5 (now codified at Ind. Code § 35-31.5-2-72 (2014)) defined a CRF, in pertinent part, as:
               [A] person who has been convicted of at least one (1) of the following offenses: (1) Child
               molesting involving sexual intercourse or deviate sexual conduct . . ., if: (A) the offense is
               committed by a person at least twenty-one (21) years of age; and (B) the victim is less than
               twelve (12) years of age.
      A person who is a CRF and who is imprisoned for a crime or imprisoned awaiting trial or sentencing is
      initially assigned to Class IV; a CRF may not be assigned to Class I or Class II. See I.C. § 35-50-6-4(b)
      (2008). “A person assigned to Class IV earns one (1) day of credit time for every six (6) days the person is
      imprisoned for a crime or confined awaiting trial or sentencing.” I.C. § 35-50-6-3(d)

      Court of Appeals of Indiana | Memorandum Decision 12A05-1702-PC-303 | October 17, 2017                    Page 3 of 12
      effective date of the CRF statute and this court had held that it is an ex post

      facto violation to apply that statute to crimes occurring prior thereto. See Upton

      v. State, 904 N.E.2d 700, 706 (Ind. Ct. App. 2009), trans. denied. The court

      found, however, that the evidence established that Sharp had committed acts of

      criminal deviate conduct both before and after July 1, 2008. The trial court

      therefore concluded that because Sharp had committed acts of deviate sexual

      conduct after July 1, 2008, it was not an ex post facto violation to apply the

      CRF statute to him.3


[7]   Sharp appealed his convictions and sentence to this court. In the context of his

      inappropriate sentence challenge, appellate counsel argued that Sharp’s

      designation as a CRF should be considered in our review in that it rendered his

      aggregate sentence inappropriately long. This court rejected Sharp’s argument.

      See Sharp v. State, 951 N.E.2d 282 (Ind. Ct. App. 2011), trans. granted.


[8]   Sharp sought transfer on the issue of whether his CRF status was relevant to

      review of the appropriateness of his sentence. The Supreme Court granted

      transfer and held that “appellate sentence review may take into consideration

      the potential consequences of an offender’s status as a credit restricted felon,”

      but nevertheless concluded that Sharp’s sentence was appropriate even taking

      his CRF status into account. Sharp v. State, 970 N.E.2d 647, 651 (Ind. 2012).

      In a footnote, the Supreme Court noted that during oral argument, Sharp raised



      3
       The trial court made these findings despite the fact that trial counsel did not object to the court’s designation
      of Sharp as a CRF.

      Court of Appeals of Indiana | Memorandum Decision 12A05-1702-PC-303 | October 17, 2017               Page 4 of 12
       an ex post facto challenge to his status as a CRF, arguing that “because the jury

       did not make a specific finding that any of the acts of molestation occurred after

       the effective date of the credit restricted felon statute, there was insufficient

       evidence to support his designation as a credit restricted felon.” Id. at 648 n.1.

       The Supreme Court rejected this argument finding that there was “sufficient

       evidence from which a reasonable jury could conclude that [Sharp] molested

       C.S. after July 1, 2008, the effective date of the statute.” Id.


[9]    Sharp filed a petition for post-conviction relief on March 28, 2013, and an

       amended petition on October 28, 2016. In his petition, Sharp raised two claims

       of ineffective assistance of trial counsel and two claims of ineffective assistance

       of appellate counsel. The ineffectiveness claims concern the misstatement

       regarding the minimum sentence available for a Class A felony and whether the

       trial court’s designation of Sharp as a CRF violates ex post facto principles.

       The post-conviction court held a hearing on November 30, 2016. On January

       27, 2017, the post-conviction court entered findings of fact and conclusions of

       law denying Sharp’s request for post-conviction relief. Sharp now appeals.

       Additional facts will be provided as necessary.


                                           Discussion & Decision


[10]   In a post-conviction proceeding, the petitioner bears the burden of establishing

       grounds for relief by a preponderance of the evidence. Bethea v. State, 983

       N.E.2d 1134, 1138 (Ind. 2013). “When appealing the denial of post-conviction

       relief, the petitioner stands in the position of one appealing from a negative


       Court of Appeals of Indiana | Memorandum Decision 12A05-1702-PC-303 | October 17, 2017   Page 5 of 12
       judgment.” Id. (quoting Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)). In

       order to prevail, the petitioner must demonstrate that the evidence as a whole

       leads unerringly and unmistakably to a conclusion opposite the post-conviction

       court’s conclusion. Id. Although we do not defer to a post-conviction court’s

       legal conclusions, we will reverse its findings and judgment only upon a

       showing of clear error, i.e., “that which leaves us with a definite and firm

       conviction that a mistake has been made.” Id. (quoting Ben-Yisrayl v. State, 729

       N.E.2d 102, 106 (Ind. 2000)).


[11]   On appeal, Sharp argues that the post-conviction court erred in rejecting his

       claims of ineffective assistance of trial and appellate counsel. A petitioner will

       prevail on a claim of ineffective assistance of counsel only upon a showing that

       counsel’s performance fell below an objective standard of reasonableness and

       that the deficient performance prejudiced the petitioner. Id. To satisfy the first

       element, the petitioner must demonstrate deficient performance, which is

       “representation that fell below an objective standard of reasonableness,

       committing errors so serious that the defendant did not have the ‘counsel’

       guaranteed by the Sixth Amendment.” Id. (quoting McCary v. State, 761 N.E.2d

       389, 392 (Ind. 2002)). To satisfy the second element, the petitioner must show

       prejudice, which is “a reasonable probability that, but for counsel’s errors, the

       result of the proceeding would have been different.” Id. at 1139. “A reasonable

       probability is one that is sufficient to undermine confidence in the outcome.”

       Kubsch v. State, 934 N.E.2d 1138, 1147 (Ind. 2010) (quoting Strickland v.

       Washington, 466 U.S. 668, 694 (1984)).


       Court of Appeals of Indiana | Memorandum Decision 12A05-1702-PC-303 | October 17, 2017   Page 6 of 12
[12]   Because a petitioner must prove both deficient performance and prejudice in

       order to prevail on a claim of ineffective assistance of counsel, the failure to

       prove either element defeats such a claim. See Young v. State, 746 N.E.2d 920,

       927 (Ind. 2001) (holding that because the two elements of Strickland are

       separate and independent inquiries, the court may dispose of the claim on the

       ground of lack of sufficient prejudice alone). This standard applies to both

       ineffective assistance of trial counsel and appellate counsel claims. Wright v.

       State, 881 N.E.2d 1018, 1022 (Ind. Ct. App. 2008), trans. denied.


                                        Incorrect Sentencing Range


[13]   Sharp first argues that his trial counsel was ineffective for misstating that the

       minimum sentence available for his Class A felony conviction was thirty years

       rather than twenty years and that appellate counsel was ineffective for failing to

       challenge his sentence upon such basis. At the sentencing hearing, the State

       indicated to the court that I.C. § 35-50-2-2(i) “change[d] the minimum executed

       sentence [Sharp] can receive from twenty to thirty.” Trial Transcript at 211.

       The trial court indicated its agreement with the statement by replying, “Okay.”

       Id. Sharp’s trial counsel then stated during his sentencing argument, “as the

       court’s well aware an A felony normally carries a sentence of twenty to fifty

       years but because of this type of crime . . . the statutes . . . have made this . . .

       more serious and limited the Court’s discretion to thirty to fifty years.” Id. at

       213.




       Court of Appeals of Indiana | Memorandum Decision 12A05-1702-PC-303 | October 17, 2017   Page 7 of 12
[14]   In Hamilton v. State, 921 N.E.2d 27, 30-31 (Ind. Ct. App. 2010), trans. denied,

       which was decided prior to Sharp’s sentencing hearing, this court held that

       then-I.C. § 35-50-2-2(i) did not alter the twenty-year minimum sentence

       available for a Class A felony conviction, but altered only what part of a

       sentence could be suspended.4 There is thus no dispute that trial counsel

       rendered deficient performance by misstating the legal effect of I.C. § 35-50-2-

       2(i) as setting the minimum sentence that Sharp could receive at thirty years

       and/or by not objecting to the State’s misstatement of the sentencing range.


[15]   The post-conviction court found that “there is no evidence that Sharp was

       prejudiced by trial counsel’s misstatement, or that the sentencing court was in

       some way mislead [sic] by trial counsel’s misstatement.” Appellant’s Appendix

       Vol. 2 at 72. We disagree. While we acknowledge that a trial court is presumed

       to know and correctly apply the law, see Crider v. State, 984 N.E.2d 618, 624

       (Ind. 2013), our review of the record leads us to conclude that this presumption

       has been rebutted. The State and counsel clearly believed that the sentencing

       range Sharp faced was thirty to fifty years. Further, the trial court indicated its

       agreement with the State’s misstatement of the applicable sentencing range, and

       trial counsel’s subsequent misstatement only compounded the notion that the

       minimum sentence Sharp could receive was thirty years, not twenty. Even

       though the trial court did not explicitly state the incorrect range, there is no




       4
        Our Supreme Court subsequently expressed its agreement with this interpretation of the statute. See Miller v.
       State, 943 N.E.2d 348, 349 (Ind. 2011).

       Court of Appeals of Indiana | Memorandum Decision 12A05-1702-PC-303 | October 17, 2017           Page 8 of 12
       evidence in the record indicating that the trial court was not misled by the

       State’s or defense counsel’s statements setting out the wrong sentencing range.


[16]   Very recently, our Supreme Court considered this very issue, albeit on direct

       appeal. In McGuire v. State, 77 N.E.3d 1198 (Ind. 2017) (Massa, J. dissenting),

       the State, defense counsel, and the trial court “expressed agreement”5 that the

       statutory sentencing range for the defendant’s crime was thirty to fifty years,

       when in fact the proper sentencing range was twenty to fifty years. Id. at 1199.

       The Court of Appeals had ultimately affirmed the defendant’s forty-year

       sentence because it “‘could say with confidence that the trial court would have

       imposed the same sentence had it properly considered the facts and law

       applicable to the case.’” Id. Despite the Court of Appeals’ assessment, a

       majority of the Supreme Court6 held that remand for a new sentencing hearing

       was appropriate under the circumstances. Id. That the issue is now being

       presented in post-conviction review does not alter this outcome.


[17]   The record indicates the trial court was operating under the misconception that

       the sentencing range was thirty to fifty years rather than twenty to fifty. Even

       though the trial court provided a thorough sentencing statement, we cannot say

       with confidence that the trial court would have imposed the same sentence had

       it considered the proper sentencing range. We therefore conclude that Sharp




       5
        In McGuire, the trial court had explicitly stated in both its oral sentencing statement and written sentencing
       order that the sentencing range for the crime committed was thirty to fifty years.
       6
           Justice Massa dissented, “concur[ring] completely” with [the Court of Appeals’] assessment.” Id. at 1200.


       Court of Appeals of Indiana | Memorandum Decision 12A05-1702-PC-303 | October 17, 2017              Page 9 of 12
       has established that he was prejudiced in this regard. Having concluded that

       trial counsel rendered ineffective assistance, we need not address Sharp’s

       argument in this regard as it relates to appellate counsel’s performance.


                                      Credit Restricted Felon Status


[18]   Sharp also argues that his trial and appellate counsel rendered ineffective

       assistance with regard to the determination that he is a CRF. As set out above,

       the time period of the offenses overlapped the July 1, 2008 effective date of the

       CRF statute. We further note that application of the CRF statute to crimes

       occurring prior to its effective date has been held to constitute a violation of the

       ex post facto clause of the United States Constitution. See Upton, 904 N.E.2d at

       704-06.


[19]   Here, the sentencing court addressed this issue sua sponte and concluded that

       there was no ex post facto violation because the evidence established that Sharp

       committed deviate conduct after the CRF statute’s effective date. Sharp cannot

       therefore establish prejudice on account of a lack of objection by trial counsel

       because such did not keep the trial court from considering the claim.


[20]   On appeal, appellate counsel did not raise the ex post facto issue before this

       court. On transfer to the Supreme Court, appellate counsel asserted for the first

       time during oral argument that Sharp’s designation as a CRF violated the ex

       post facto clause. In a footnote, the Supreme Court noted that it “need not

       explore the nature of the ex post facto prohibition,” finding that there was

       sufficient evidence from which a reasonable jury could conclude that Sharp

       Court of Appeals of Indiana | Memorandum Decision 12A05-1702-PC-303 | October 17, 2017   Page 10 of 12
       committed the offenses after the effective date of the CRF statute.7 The post-

       conviction court held that appellate counsel was not ineffective because the

       Supreme Court considered and rejected this claim.


[21]   Sharp concedes that there was sufficient evidence that he committed his

       offenses after July 1, 2008, stating that the Supreme Court “rightly” rejected

       such claim on direct appeal. Appellant’s Brief at 26. He argues, however, that

       appellate counsel based his ex post facto claim on the wrong grounds. He

       asserts that appellate counsel should have argued that “the jury’s general verdict

       made it impossible to say that he had been convicted of a crime committed after

       the effective date of the CRF statute.” Id. at 27. In other words, Sharp

       maintains that the jury’s general verdict gave rise to the possibility that Sharp’s

       CRF-designation resulted from a crime committed before the effective date of

       the CRF statute.


[22]   “[W]here an issue, although differently designated, was previously considered and

       determined upon a criminal defendant’s direct appeal, the State may defend

       against defendant’s post-conviction relief petition on grounds of prior

       adjudication or res judicata.” Reed v. State, 856 N.E.2d 1189, 1194 (Ind. 206)

       (quoting Cambridge v. State, 468 N.E.2d 1047, 1049 (Ind. 1984)) (emphasis in

       original). We find Sharp’s general judgment argument to simply be a




       7
         There were nine weekends between July 1 and August 31, 2008. C.S. testified that he stayed with his
       mother and Sharp every other weekend and that Sharp had performed deviate sexual conduct on him each
       time he visited. In addition, a case worker noted that C.S. reported that Sharp had molested him as recently
       as August 2008.

       Court of Appeals of Indiana | Memorandum Decision 12A05-1702-PC-303 | October 17, 2017          Page 11 of 12
       restatement of the sufficiency of the evidence argument addressed by the

       Supreme Court and decided against him. Sharp thus cannot establish prejudice

       based on the argument presented by appellate counsel challenging his CRF

       designation as a violation of the ex post facto clause.


[23]   In sum, the post-conviction court erred by rejecting Sharp’s claim of ineffective

       assistance of trial counsel regarding the misstatements about the proper

       sentencing range. We therefore vacate Sharp’s sentence and remand for a new

       sentencing hearing. But, it was not error for the post-conviction court to

       determine that Sharp’s ex post facto claim was not the subject of ineffective

       representation of trial or appellate counsel.


[24]   Judgment affirmed in part, reversed in part, and remanded with instructions.


[25]   Baker, J. and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 12A05-1702-PC-303 | October 17, 2017   Page 12 of 12
