Michael Lindsey v. State of Indiana , 2017 Ind. App. LEXIS 117 ( 2017 )

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.
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[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
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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.
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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
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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
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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
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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,”
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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
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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?
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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
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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.
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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
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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.
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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
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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.
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