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Lindsey v. State

Court of Appeals of Indiana

March 14, 2017

Michael Lindsey, Appellant-Petitioner,
v.
State of Indiana, Appellee-Respondent

         Appeal from the St. Joseph Superior Court The Honorable John M. Marnocha, Judge Trial Court Cause No. 71D02-1105-PC-22

          Attorneys for Appellant Stephen T. Owens Public Defender of Indiana Borahm Kim Deputy Public Defender Indianapolis, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Eric P. Babbs Deputy Attorney General Indianapolis, Indiana

          Baker, Judge.

         [¶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 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 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 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 ...


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