Court of Appeals of Indiana | Opinion 71A04-1412-PC-576 | March 14, 2017 Page 1 of 15

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

I N T H E

COURT OF APPEALS OF INDIANA

Michael Lindsey,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent

March 14, 2017

Court of Appeals Case No.

71A04-1412-PC-576

Appeal from the St. Joseph 

Superior Court

The Honorable John M. 

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 2 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 3 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 thirtytwo-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 4 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 5 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 6 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 7 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 8 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 9 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 10 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 11 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 12 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 fortyyear 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 13 of 15

the record indicates otherwise.2 Moreover, he and the prosecutor had the thirtytwo-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 factsensitive, 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 14 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 15 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.