Appeal fro the Marion Superior Court, No. 49F25-0811-PC-261114. The Honorable Clark H. Rogers, Judge.
On Petition to Transfer from the Indiana Court of Appeals, No. 49A02-1303-PC-228.
ATTORNEYS FOR APPELLANT: Gregory F. Zoeller, Attorney General of Indiana, Andrew A. Kobe, Justin F. Roebel, Deputy Attorneys General, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE: Stephen T. Owens, Hope H. Fey, Indianapolis, Indiana.
David, Justice. Rush, C.J., Dickson, Rucker, and Massa, J.J., concur.
Convicted of class B felony criminal confinement, Frank Greene alleged in his petition for post-conviction relief that his trial and appellate counsel provided ineffective assistance by failing to present allegedly controlling precedent from this Court and thus adequately challenge the sufficiency of the evidence underlying his conviction. Greene argued that had counsel submitted Long v. State, 743 N.E.2d 253 (Ind. 2001), to their respective courts, he would have obtained, at worse, a conviction for class D felony criminal confinement. Persuaded, the post-conviction court ordered his class B felony conviction reduced to a class D felony. The Court of Appeals affirmed, and the State appealed.
The validity of Greene's post-conviction claim turns on the legitimacy of his argument that Long compelled a different result at trial. Specifically, he contends Long holds that in order for a defendant to be convicted of class B felony criminal confinement, the State must have proven beyond a reasonable doubt that serious bodily injury to the victim resulted when the victim was moved from one place to another. Concluding that Greene mischaracterizes Long, we find that the post-conviction court clearly erred in its judgment, as Greene's counsel did not render ineffective assistance by failing to argue a misstatement of the law.
Facts and Procedural History
At the close of his February 2009 bench trial, Greene was convicted, among other counts, of class B felony criminal confinement for a prolonged incident spanning two days in November 2008 during which he terrorized his girlfriend Brenda Johnson and held her captive in their shared apartment. Greene v. State, No.
49A05-0905-CR-250 (Ind.Ct.App. Oct. 30, 2009). Relevant here is that evidence was presented at trial that revealed, while in their bedroom, Greene strangled Johnson until she lost consciousness. When she regained consciousness, she was on a couch in their living room. Additionally, the trial court found Greene to be a habitual offender and sentenced Greene, in total, to fifty years executed.
On direct appeal, Greene argued that there was
insufficient evidence to sustain his conviction for class B felony criminal
confinement. Greene, No. 49A05-0905-CR-250.
The Court of Appeals
affirmed, Greene, No. 49A05-0905-CR-250, and this Court denied Greene's petition to transfer, Greene v. State, 929 N.E.2d 793 (table) (Ind. 2006).
Then in November 2010, Greene filed a petition for post-conviction relief in which he claimed that he received ineffective assistance of trial and appellate counsel. Specifically, in his amended PCR petition, Greene contended that had counsel presented Long, either he would not have been convicted of class B felony criminal confinement or his conviction would have been set aside for insufficient evidence, because " the State totally failed to prove the loss of consciousness had resulted from Ms. Johnson's removal from the bedroom to the living room as required by Long." (App. at 48-50.) To Greene, Long is " directly on point." (Appellee's Br. at 7.)
At an evidentiary hearing, both Greene's trial and appellate counsel testified that they were unaware of Long at the relevant times, but would have argued the case had they been aware. Following the hearing, the post-conviction court issued findings of fact and conclusions of law and found that " [t]here is no question in this Court's opinion that [Greene] should not have been convicted of Class B felony confinement" ; thus, " both trial and appellate counsel were ineffective for failing to properly argue Supreme Court precedent on point with [Greene's] case." (App. at 99, 103.) As a result, the post-conviction court reduced Greene's class B felony criminal confinement conviction to class D felony criminal confinement and ordered that he be resentenced accordingly. The State subsequently appealed. Unanimous in result, the Court of Appeals affirmed. State v. Greene, 2 N.E.3d 737, 742 (Ind.Ct.App. 2013) (Robb, C.J., concurring).
We granted the State's petition to transfer, thereby vacating the Court of Appeals opinion, Ind. Appellate Rule 58(A), to address whether the post-conviction court erred in finding that Greene's trial and appellate counsel were ineffective for failing to adequately challenge the sufficiency of the evidence ...