                                                                  FILED
                                                             Mar 14 2017, 8:26 am

                                                                  CLERK
                                                              Indiana Supreme Court
                                                                 Court of Appeals
                                                                   and Tax Court




ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Stephen T. Owens                                          Curtis T. Hill, Jr.
Public Defender of Indiana                                Attorney General of Indiana
                                                          Eric P. Babbs
Borahm Kim                                                Deputy Attorney General
Deputy Public Defender                                    Indianapolis, Indiana
Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Michael Lindsey,                                          March 14, 2017
Appellant-Petitioner,                                     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-Respondent                                       Marnocha, Judge
                                                          Trial Court Cause No.
                                                          71D02-1105-PC-22



Baker, Judge.




Court of Appeals of Indiana | Opinion 71A04-1412-PC-576 | March 14, 2017                Page 1 of 15
[1]   Michael Lindsey appeals the judgement of the post-conviction court, which

      denied his petition for post-conviction relief (PCR). He argues that he received

      the ineffective assistance of trial counsel, who advised him to reject a plea

      agreement with a thirty-two-year sentence on the grounds that the most he

      could receive with an open guilty plea was thirty years; instead, he received

      forty. We find that trial counsel’s performance was ineffective and that Lindsey

      was prejudiced thereby. Accordingly, we reverse the judgment of the PCR

      court and remand with instructions to adjust Lindsey’s sentence to thirty-two

      years.


                                                      Facts
[2]   On February 24, 2009, at around 1:00 p.m., Lindsey approached a woman in

      the parking lot of a Hobby Lobby. Lindsey had been free from prison for only

      seven months after serving a twenty-six-year sentence for rape and child

      molesting. Armed with a screw driver and nervous that his parole officer was

      after him, he attempted to force the woman to drive him out of the county. She

      screamed and was able to get away, and Lindsey fled the scene.


[3]   Lindsey went home, where he grabbed money and a kitchen knife. He walked

      to a bank and withdrew more money. As he attempted to contact a taxi, he

      noticed several police officers walking around, and he became afraid that they

      were looking for him. He ducked behind a nearby building. Noticing a woman

      entering her car, he walked up to her car, showed her the knife, and forced her

      to drive him away. Several hours later, Lindsey had a change of heart: he let


      Court of Appeals of Indiana | Opinion 71A04-1412-PC-576 | March 14, 2017   Page 2 of 15
      the second woman go—in the middle of nowhere, without her car—and he was

      later arrested. This second encounter began around 3:00 p.m.1


[4]   The State charged Lindsey with attempted criminal confinement and criminal

      confinement, both class B felonies. Each charge carried a sentence of between

      six and twenty years. Ind. Code § 35-50-2-5 (2009). Lindsey came to an

      agreement with the State to plead guilty to the offenses in exchange for a thirty-

      two-year sentence, which would be eight years shorter than the forty-year

      maximum sentence he faced.


[5]   The parties had the agreement completely written out, but at the last minute,

      Lindsey changed his mind. He later claimed that his trial counsel assured him

      that his two crimes were part of a single episode of criminal conduct. If this

      were the case, then Lindsey’s “total of the consecutive terms of imprisonment .

      . . [could] not exceed the advisory sentence for a felony which is one (1) class of

      felony higher than the most serious of the felonies for which the person has

      been convicted,” Ind. Code § 35-50-1-2(c) (2009), which would have been thirty

      years in Lindsey’s case. I.C. § 35-50-2-4(a). His trial counsel, while never

      conceding that he absolutely promised that Lindsey could only receive a

      maximum of thirty years, did later testify to that effect: “It was my opinion that




      1
       There is a discrepancy in the amount of time that passed; Lindsey has also testified that, in his estimation, a
      half-hour to an hour separated the events.

      Court of Appeals of Indiana | Opinion 71A04-1412-PC-576 | March 14, 2017                            Page 3 of 15
      it was a continuing criminal scheme or plan, because the one attempt was

      within a half an hour of the actual taking of the person.” PCR Tr. p. 9.


[6]   Regardless, the parties modified by hand the plea agreement to exclude the

      thirty-two-year sentence and to be an open plea of guilty, leaving sentencing to

      the trial court’s discretion. The trial court informed Lindsey that the

      determination of whether his conduct was part of a single episode would be

      fact-sensitive, and that he faced a maximum of forty years; Lindsey stuck with

      his open guilty plea.


[7]   At the sentencing hearing, the State pointed out that the incidents took place

      two hours apart, with different weapons, with different victims, and that

      Lindsey went home and to the bank in between. Accordingly, the trial court

      found that the conduct was not part of a single episode. After noting a

      significant criminal history and the terror that his victims felt, the trial court

      sentenced Lindsey to the maximum sentence of twenty years on each

      conviction, to be served consecutively.


[8]   Lindsey appealed, arguing (1) that the trial court erred by finding that he

      committed multiple criminal episodes, and (2) that his sentence was

      inappropriate, but we affirmed in a memorandum decision. Lindsey v. State,

      No. 71A03-0910-CR-486, 2010 WL 1526552, at *1 (Ind. Ct. App. Apr. 16,

      2010).


[9]   Lindsey filed a petition for PCR, arguing that his trial counsel provided

      ineffective assistance by persuading him to scrap the plea bargain reached with

      Court of Appeals of Indiana | Opinion 71A04-1412-PC-576 | March 14, 2017     Page 4 of 15
       the State, and that trial counsel’s alleged misinformation meant that his guilty

       plea was not knowing, voluntary, and intelligent. After listening to testimony

       and argument, the PCR court denied Lindsey’s petition. It found that Lindsey

       and his trial counsel had decided to make an open plea in the hope that this

       would result in a thirty-year sentence. It also found that Lindsey could not

       show that he had suffered any prejudice because he would have pleaded guilty

       regardless.


[10]   Lindsey appealed the PCR court’s decision, but we affirmed in a memorandum

       decision. Lindsey v. State, No. 71A04-1412-PC-576, 2015 WL 5545481, at *1

       (Ind. Ct. App. Sep. 21, 2015) (Lindsey II). Using a standard derived from Segura

       v. State, 749 N.E.2d 496, 507 (Ind. 2001), we agreed with the PCR court that to

       prove prejudice Lindsey was required to show that “but for counsel’s errors, he

       would not have pleaded guilty and would have insisted on going to trial.”

       Because he always intended to plead guilty, we found that he was not

       prejudiced. Lindsey II, slip op. at *7.


[11]   Lindsey appealed, but our Supreme Court denied transfer. He then appealed to

       the United States Supreme Court, arguing that he had been held to an incorrect

       standard. He argued, and the State conceded, that to show prejudice stemming

       from the ineffective assistance of counsel at the plea bargaining stage of trial, he

       simply had to show that the end result would have been more favorable to him

       had he received the effective assistance of counsel. See Lafler v. Cooper, 566 U.S.

       156 (2012); Missouri v. Frye, 566 U.S. 133 (2012). In light of the parties’

       agreement that the incorrect standard had been applied, on October 3, 2016, the

       Court of Appeals of Indiana | Opinion 71A04-1412-PC-576 | March 14, 2017   Page 5 of 15
       United States Supreme Court vacated our decision in Lindsey II and remanded

       the case to us.


                                     Discussion and Decision
[12]   The petitioner in a post-conviction proceeding bears the burden of establishing

       grounds for relief by a preponderance of the evidence. Ind. Post–Conviction

       Rule 1(5); Shanabarger v. State, 846 N.E.2d 702, 707 (Ind. Ct. App. 2006).

       When appealing from the denial of post-conviction relief, the petitioner stands

       in the position of one appealing from a negative judgment. Id. On review, we

       will not reverse the judgment unless the evidence as a whole unerringly and

       unmistakably leads to a conclusion opposite that reached by the post-conviction

       court. Id. If not raised on direct appeal, a claim of ineffective assistance of trial

       counsel is properly presented in a post-conviction proceeding. Timberlake v.

       State, 753 N.E.2d 591, 598 (Ind. 2001).


[13]   Our Supreme Court has summarized the standard applied to claims of

       ineffective assistance of counsel as follows:


               A defendant claiming a violation of the right to effective
               assistance of counsel must establish the two components set forth
               in Strickland v. Washington, 466 U.S. 668 (1984); accord Williams v.
               Taylor, 529 U.S. 362, 390-91 (2000). First, the defendant must
               show that counsel’s performance was deficient. Strickland, 466
               U.S. at 687. This requires a showing that counsel’s
               representation fell below an objective standard of reasonableness,
               id. at 688, and that the errors were so serious that they resulted in
               a denial of the right to counsel guaranteed the defendant by the
               Sixth Amendment, id. at 687. Second, the defendant must show


       Court of Appeals of Indiana | Opinion 71A04-1412-PC-576 | March 14, 2017    Page 6 of 15
               that the deficient performance prejudiced the defense. Id. To
               establish prejudice, a defendant must show that there is a
               reasonable probability that, but for counsel’s unprofessional
               errors, the result of the proceeding would have been different. Id.
               at 694. A reasonable probability is a probability sufficient to
               undermine confidence in the outcome. Id.


               Counsel is afforded considerable discretion in choosing strategy
               and tactics, and we will accord those decisions deference. Id. at
               689. A strong presumption arises that counsel rendered adequate
               assistance and made all significant decisions in the exercise of
               reasonable professional judgment. Id. at 690. The Strickland
               Court recognized that even the finest, most experienced criminal
               defense attorneys may not agree on the ideal strategy or the most
               effective way to represent a client. Id. at 689. Isolated mistakes,
               poor strategy, inexperience, and instances of bad judgment do
               not necessarily render representation ineffective. Bieghler v. State,
               690 N.E.2d 188, 199 (Ind. 1997); Davis v. State, 598 N.E.2d 1041,
               1051 (Ind. 1992); Ingram v. State, 508 N.E.2d 805, 808 (Ind.
               1987).


       Timberlake, 753 N.E.2d at 603.


                                    I. Counsel’s Performance
[14]   The State argues that trial counsel’s performance was objectively reasonable. It

       notes that, had Lindsey convinced the trial court that his crimes were part of a

       single criminal episode, he would have received a maximum sentence of thirty

       years. Moreover, he preserved his ability to argue that he should receive an

       even shorter sentence and to appeal whatever sentence the trial court eventually

       decided to give. Because the determination of whether certain offenses

       constitute a single episode of criminal conduct “is a fact-sensitive inquiry,”

       Court of Appeals of Indiana | Opinion 71A04-1412-PC-576 | March 14, 2017    Page 7 of 15
       Slone v. State, 11 N.E.3d 969, 972 (Ind. Ct. App. 2014), the State concludes that

       we cannot say that trial counsel was ineffective where there was a chance that

       the trial court would accept counsel’s argument.


[15]   At his sentencing hearing, the parties argued over whether Lindsey’s actions

       were a single episode of criminal conduct. Trial counsel cited to Reed v. State,

       856 N.E.2d 1189 (Ind. 2006), stating that the case stood for the proposition,

       “even though it’s not a critical ingredient, it’s the timing or whatever that makes

       the difference.” Sent. Hrg. Tr. p. 43. In that case, the defendant was in a car

       chase with police when he “stopped his car, opened the door, and fired a

       gunshot in the direction of Officers Roach and Beachum, whose cars were

       stopped within yards of each other.” Reed, 856 N.E.2d at 1201. Within five

       seconds, he fired more shots at Officer Beachum. Id. Our Supreme Court held

       that these shots—fired from the same car, at the same two officers, within a

       span of five seconds—constituted a single episode of criminal conduct, and that

       the defendant should not have been sentenced for two counts of attempted

       murder. Id.


[16]   After the trial court pulled up the case, it and trial counsel had the following

       colloquy:

               THE COURT: Mr. Howe, didn’t Reed involve a guy that was
               being chased by the police? Didn’t Reed involve a guy who
               stopped his flight in a car and took shots at one police officer,
               gets in his -- or I don’t know if he got out. But he shoots at a guy,
               a police officer. He goes driving off again. He stops again. He
               shoots at another officer. And didn’t Reed stand for the

       Court of Appeals of Indiana | Opinion 71A04-1412-PC-576 | March 14, 2017    Page 8 of 15
        proposition that in fact these were not a continuing episode of
        violence? Isn’t that the facts of Reed?


        MR. HOWE: But the thing is they go into the statements about
        the timing becomes very -- of great importance or whatever. And
        we would just like the Court to consider that as to whether this
        was an --


        THE COURT: What’s your argument? I don’t get your
        argument.


        MR. HOWE: Well, what I’m saying is it was all one—he was
        doing one thing. It was an episode of trying to get a car to try to
        get out of town. It was a continuing endeavor with one
        accomplishment that he was set to try to get to.


        THE COURT: I’m not very good at – I never play poker
        because anybody that’s at the table would know whether I have a
        good hand or a bad hand. And obviously if you’re dealing out the
        cards, you didn’t give me a very good hand. Because a person
        who is in a chase, who stops a car and shoots at a police officer,
        goes on with the chase, stops and shoots at another police officer,
        they said that is not a continuing episode of violent activity. And
        you’re telling me that this is more of a continuing act—series of
        episodes because there was an attempt to grab somebody. It
        didn’t work. The man goes home and comes back and grabs
        somebody. And that is less of a—that is more of a continuing
        episode?


        MR. HOWE: We believe that it is a continuing episode.


        THE COURT: Based on what though? Not the facts of -- not
        the distinction of those facts. What, on the objective to get a car
        to get out of town?

Court of Appeals of Indiana | Opinion 71A04-1412-PC-576 | March 14, 2017      Page 9 of 15
               MR. HOWE: That’s correct. He objectively -- that was the goal
               was to get a car to get out of town and --


               THE COURT: Well, wasn’t Reed having a single objective
               which is -- he already had the damn car. He’s in the car. He’s
               going. And his objective is to get away from the cops. So if your
               distinction is the object, the intent thing of what he wanted to do,
               Reed even more is a single objective that never changed. I don’t
               get the argument at all. Sorry.


       Sent. Hrg. Tr. p. 45-47.


[17]   While it appears that the trial court got the holding of Reed exactly backwards,

       thinking that our Supreme Court found multiple episodes rather than a single

       episode, we find it notable that trial counsel did not attempt to correct that

       misapprehension, despite being asked directly by the trial court what the

       holding was. Even if he had, we cannot say that trial counsel’s belief, that the

       instant case is analogous to Reed, was reasonable. Reed involved a defendant

       who shot at the same two officers, from the same location, with the same gun,

       within a span of five seconds. In contrast, Lindsey attacked two different

       women, with two different weapons, in two different locations, and went home

       and to the bank in between. The time in between the incidents was contested,

       but the events were separated by a minimum of thirty minutes, and the State

       presented evidence that the events were separated by a full two hours. Trial

       counsel’s advice, which he has conceded that he gave, “It was my opinion that

       it was a continuing criminal scheme or plan, because the one attempt was

       within a half an hour of the actual taking of the person,” PCR tr. p. 9, fell below


       Court of Appeals of Indiana | Opinion 71A04-1412-PC-576 | March 14, 2017   Page 10 of 15
       the standard of performance required of attorneys. Our conclusion would not

       change based on whether trial counsel said this as a guarantee or as a best

       prediction of the trial court’s decision—either statement would be

       unreasonable.


[18]   We would be remiss, however, if we did not take the opportunity to

       reemphasize the discretion granted to attorneys and their clients in pursuing

       trial strategies. Trial counsel would not have fallen below the standard required

       of attorneys by merely broaching the possibility of arguing a single episode of

       criminal conduct in order to reduce Lindsey’s sentence by two years. If trial

       counsel had explained the doctrine, informed Lindsey that there was not a good

       chance of the trial court accepting the argument, and mentioned the significant

       chance that the trial court would not accept the argument, which would

       potentially subject Lindsey to a forty-year sentence, then it would ultimately be

       Lindsey’s choice whether to accept that risk. If Lindsey had decided to take a

       fully-informed gamble, we would be engaging in hindsight bias to question it.


[19]   But that is not what happened in this case. Instead, trial counsel predicted to

       Lindsey that by making an open guilty plea Lindsey would receive no more

       than thirty years. Asked at his PCR hearing, “had you known that the 40 was

       absolutely in play and this was not a criminal episode, would you have elected

       to take that plea at that time,” Lindsey answered, “At that time, yes.” PCR Tr.

       p. 12. We cannot say that trial counsel’s advice and performance were

       adequate.



       Court of Appeals of Indiana | Opinion 71A04-1412-PC-576 | March 14, 2017   Page 11 of 15
                                                II. Prejudice
[20]   Having found that trial counsel’s performance was ineffective, we turn to

       whether Lindsey was prejudiced thereby. “[A]ny amount of actual jail time has

       Sixth Amendment significance.” Glover v. U.S., 531 U.S. 198, 203 (2001). “To

       show prejudice from ineffective assistance of counsel where a plea offer has

       lapsed or been rejected because of counsel’s deficient performance, defendants

       must demonstrate a reasonable probability they would have accepted the earlier

       plea offer had they been afforded effective assistance of counsel.” Frye, 566

       U.S. at 147 (2012). In addition to showing a reasonable probability that the

       deal would not have been cancelled by the prosecutor or rejected by the trial

       court, defendants must “show a reasonable probability that the end result of the

       criminal process would have been more favorable by reason of a plea to a lesser

       charge or a sentence of less prison time.” Id.


[21]   According to Lindsey, Lindsey’s trial counsel approached him just before

       signing the plea deal:

               he said, “Look, the plea is 32, if we argue single criminal episode,
               the maximum you could get is 30 years and it could possibly go
               down to as low as 20 or lower, possibly, it would be in the
               judge’s hands.” And he wanted to know if I wanted to try that.
               And with him being the attorney I said, “Sure, you know what’s
               best.”


       PCR Tr. p. 11-12. As noted above, he testified that he would have taken the

       thirty-two-year agreement had he known that it was possible to receive a forty-

       year sentence, and nothing in his trial counsel’s testimony or anything else in

       Court of Appeals of Indiana | Opinion 71A04-1412-PC-576 | March 14, 2017   Page 12 of 15
       the record indicates otherwise.2 Moreover, he and the prosecutor had the thirty-

       two-year deal completely drafted and signed, and were prepared to submit it to

       the trial court; Lindsey has demonstrated a more than reasonable probability

       that the prosecutor would have gone along with the agreement. And because a

       sentence of thirty-two years out of a maximum of forty is neither notably high

       nor low, we believe there is at least a reasonable probability that the trial court

       would have accepted the agreement.


[22]   While most cases in which a defendant alleges that the ineffectiveness of his

       counsel led him to fail to take an advantageous plea deal will be heavily fact-

       sensitive, Lindsey’s case comes to us in a unique circumstance. He and the

       prosecutor were moments away from submitting a mutually agreed upon plea

       deal when, at the last instant, his trial counsel gave him erroneous advice that

       caused him to plead guilty without any set sentence. Under these facts, we

       have little doubt that, but for trial counsel’s ineffectiveness, Lindsey would be

       serving a thirty-two-year sentence today. Lindsey has met his burden of

       showing that he was prejudiced.




       2
         The State argues that Lindsey did know that a forty-year sentence was possible because the trial court
       informed him, “theoretically if the facts allowed it, I could say I’m stacking them, I’m racking them, and
       you’re in for forty years, period, all executed, worst case scenario.” Guilty Plea Hearing Tr. p. 26-27.
       Lindsey’s attorney, however, gave him the unreasonable prediction that this would not happen; the trial
       court’s mention of this “theoretical” possibility does not persuade us that Lindsey suffered no prejudice.

       Court of Appeals of Indiana | Opinion 71A04-1412-PC-576 | March 14, 2017                         Page 13 of 15
                                                III. Remedy
[23]   In one of its companion cases holding that a counsel can be ineffective for

       failing to enable a defendant to accept a good plea agreement, the United States

       Supreme Court discussed the issue of what would constitute an appropriate

       remedy:

               Sixth Amendment remedies should be “tailored to the injury
               suffered from the constitutional violation and should not
               unnecessarily infringe on competing interests.” United States v.
               Morrison, 449 U.S. 361, 364, 101 S.Ct. 665, 66 L.Ed.2d 564
               (1981). Thus, a remedy must “neutralize the taint” of a
               constitutional violation, id. at 365, 101 S.Ct. 665, while at the
               same time not grant a windfall to the defendant or needlessly
               squander the considerable resources the State properly invested
               in the criminal prosecution. See Mechanik, 475 U.S. at 72, 106
               S.Ct. 938 (“The reversal of a conviction entails substantial social
               costs: it forces jurors, witnesses, courts, the prosecution, and the
               defendants to expend further time, energy, and other resources to
               repeat a trial that has already once taken place; victims may be
               asked to relive their disturbing experiences”).


               The specific injury suffered by defendants who decline a plea
               offer as a result of ineffective assistance of counsel and then
               receive a greater sentence as a result of trial can come in at least
               one of two forms. In some cases, the sole advantage a defendant
               would have received under the plea is a lesser sentence. This is
               typically the case when the charges that would have been
               admitted as part of the plea bargain are the same as the charges
               the defendant was convicted of after trial. In this situation the
               court may conduct an evidentiary hearing to determine whether
               the defendant has shown a reasonable probability that but for
               counsel’s errors he would have accepted the plea. If the showing
               is made, the court may exercise discretion in determining

       Court of Appeals of Indiana | Opinion 71A04-1412-PC-576 | March 14, 2017   Page 14 of 15
                whether the defendant should receive the term of imprisonment
                the government offered in the plea, the sentence he received at
                trial, or something in between.


       Lafler, 566 U.S. at 170-71.


[24]   We find that Lindsey’s case falls precisely into this description. And because of

       the unique circumstances of his case—where he was moments away from

       submitting a fully-written and signed plea agreement with a thirty-two-year

       sentence but was dissuaded at the last moment by the erroneous advice of his

       lawyer—we can measure precisely the amount of prejudice Lindsey suffered as

       a result of the ineffectiveness of his counsel. But for the poor advice of his

       attorney, Lindsey would have received a thirty-two-year sentence.

       Accordingly, we reverse and remand the decision of the PCR court with

       instructions to modify Lindsey’s sentence from forty years to thirty-two years.3


[25]   The judgment of the post-conviction relief court is reversed and remanded with

       instructions to reduce Lindsey’s sentence to thirty-two years.


[26]   Mathias, J., and Pyle, J., concur.




       3
         Lindsey maintains his argument that his guilty plea was not knowing, intelligent, or voluntary because of
       his lawyer’s advice, arguing that “[d]efendants who can prove that they were actually misled by the judge,
       prosecutor, or defense counsel about the choices before them will present colorable claims for relief.” White
       v. State, 497 N.E.2d 893, 905-06 (Ind. 1986). Because we grant Lindsey relief on his other claim, we decline
       to address this argument.

       Court of Appeals of Indiana | Opinion 71A04-1412-PC-576 | March 14, 2017                         Page 15 of 15
