MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Oct 17 2017, 6:05 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Stephen T. Owens Curtis T. Hill, Jr. Public Defender of Indiana Attorney General of Indiana
Jonathan O. Chenoweth Ellen H. Meilaender Deputy Public Defender Supervising Deputy Attorney Indianapolis, Indiana General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Michael Sharp, October 17, 2017 Appellant-Defendant, Court of Appeals Case No. 12A05-1702-PC-303 v. Appeal from the Clinton Superior Court State of Indiana, The Honorable Justin H. Hunter, Appellee-Plaintiff Judge Trial Court Cause No. 12D01-1303-PC-282
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 12A05-1702-PC-303 | October 17, 2017 Page 1 of 12 [1] Michael Sharp appeals from the denial of his petition for post-conviction relief.
On appeal, he asserts that the post-conviction court erred in rejecting his claims
of ineffective assistance of trial and appellate counsel.
[2] We affirm in part, reverse in part, and remand with instructions.
Facts & Procedural History
[3] C.S. was born in 1996. Between August 2007 and August 2008, when C.S. was
ten and eleven years old, he lived with his father and stepmother, but would
spend every other weekend with his mother and Sharp, his stepfather. During
those every-other-weekend visits, Sharp would come into C.S.’s bedroom at
night and both fondle and “suck[]” C.S.’s penis. Trial Transcript at 77. C.S.
would tell Sharp to stop and Sharp would then return to his room. Sharp,
however, continued to molest C.S. every other weekend when C.S. was visiting.
Sharp told C.S. it was a “secret” and that he (Sharp) would “go to jail” if C.S.
told anyone about it. Id. at 78. In October 2008, C.S. disclosed Sharp’s
molestations to his stepmother.
[4] On October 17, 2008, the State charged Sharp with one count of Class A felony
child molesting (deviate sexual conduct) and one count of Class C felony child
molesting (fondling), both of which alleged that the molestations occurred “on
or between August 1, 2007 and August 31, 2008.” Direct Appeal Appendix at 95.
At the conclusion of a two-day jury trial, the jury found Sharp guilty as
charged. The trial court held a sentencing hearing on October 4, 2010. At the
sentencing hearing, the prosecutor, in discussing aggravating factors, stated that
Court of Appeals of Indiana | Memorandum Decision 12A05-1702-PC-303 | October 17, 2017 Page 2 of 12 pursuant to Ind. Code § 35-50-2-2(i) (2008)1, the minimum executed sentence
for Sharp’s Class A felony was thirty years rather than twenty. Defense counsel
likewise erroneously indicated that the court’s sentencing discretion was limited
by statute to a range of thirty to fifty years for Sharp’s Class A felony
conviction.
[5] The trial court then identified aggravating and mitigating circumstances and
determined that the aggravators “substantially outweigh[ed]” the mitigators.
Direct Appeal Appendix at 147. The trial court sentenced Sharp to forty years
executed on the Class A felony, a sentence the trial court deemed “most
appropriate under the circumstances,” and a concurrent six-year sentence on
the Class C felony. Trial Transcript at 217.
[6] The trial court also found Sharp to be a credit restricted felon (CRF). See Ind.
Code § 35-41-1-5.5 (2008).2 In its written sentencing order, the trial court
recognized that the time period of the offenses overlapped the July 1, 2008
1 At the time of Sharp’s sentencing hearing, I.C. § 35-50-2-2(i) provided that if a person was convicted of Class A felony child molesting against a victim less than twelve years of age and the person was at least twenty-one years of age, the court “may suspend only that part of the sentence that is in excess of thirty (30) years.” 2 I.C. § 35-41-1-5.5 (now codified at Ind. Code § 35-31.5-2-72 (2014)) defined a CRF, in pertinent part, as: [A] person who has been convicted of at least one (1) of the following offenses: (1) Child molesting involving sexual intercourse or deviate sexual conduct . . ., if: (A) the offense is committed by a person at least twenty-one (21) years of age; and (B) the victim is less than twelve (12) years of age. A person who is a CRF and who is imprisoned for a crime or imprisoned awaiting trial or sentencing is initially assigned to Class IV; a CRF may not be assigned to Class I or Class II. See I.C. § 35-50-6-4(b) (2008). “A person assigned to Class IV earns one (1) day of credit time for every six (6) days the person is imprisoned for a crime or confined awaiting trial or sentencing.” I.C. § 35-50-6-3(d)
Court of Appeals of Indiana | Memorandum Decision 12A05-1702-PC-303 | October 17, 2017 Page 3 of 12 effective date of the CRF statute and this court had held that it is an ex post
facto violation to apply that statute to crimes occurring prior thereto. See Upton
v. State, 904 N.E.2d 700, 706 (Ind. Ct. App. 2009), trans. denied. The court
found, however, that the evidence established that Sharp had committed acts of
criminal deviate conduct both before and after July 1, 2008. The trial court
therefore concluded that because Sharp had committed acts of deviate sexual
conduct after July 1, 2008, it was not an ex post facto violation to apply the
CRF statute to him.3
[7] Sharp appealed his convictions and sentence to this court. In the context of his
inappropriate sentence challenge, appellate counsel argued that Sharp’s
designation as a CRF should be considered in our review in that it rendered his
aggregate sentence inappropriately long. This court rejected Sharp’s argument.
See Sharp v. State, 951 N.E.2d 282 (Ind. Ct. App. 2011), trans. granted.
[8] Sharp sought transfer on the issue of whether his CRF status was relevant to
review of the appropriateness of his sentence. The Supreme Court granted
transfer and held that “appellate sentence review may take into consideration
the potential consequences of an offender’s status as a credit restricted felon,”
but nevertheless concluded that Sharp’s sentence was appropriate even taking
his CRF status into account. Sharp v. State, 970 N.E.2d 647, 651 (Ind. 2012).
In a footnote, the Supreme Court noted that during oral argument, Sharp raised
3 The trial court made these findings despite the fact that trial counsel did not object to the court’s designation of Sharp as a CRF.
Court of Appeals of Indiana | Memorandum Decision 12A05-1702-PC-303 | October 17, 2017 Page 4 of 12 an ex post facto challenge to his status as a CRF, arguing that “because the jury
did not make a specific finding that any of the acts of molestation occurred after
the effective date of the credit restricted felon statute, there was insufficient
evidence to support his designation as a credit restricted felon.” Id. at 648 n.1.
The Supreme Court rejected this argument finding that there was “sufficient
evidence from which a reasonable jury could conclude that [Sharp] molested
C.S. after July 1, 2008, the effective date of the statute.” Id.
[9] Sharp filed a petition for post-conviction relief on March 28, 2013, and an
amended petition on October 28, 2016. In his petition, Sharp raised two claims
of ineffective assistance of trial counsel and two claims of ineffective assistance
of appellate counsel. The ineffectiveness claims concern the misstatement
regarding the minimum sentence available for a Class A felony and whether the
trial court’s designation of Sharp as a CRF violates ex post facto principles.
The post-conviction court held a hearing on November 30, 2016. On January
27, 2017, the post-conviction court entered findings of fact and conclusions of
law denying Sharp’s request for post-conviction relief. Sharp now appeals.
Additional facts will be provided as necessary.
Discussion & Decision
[10] In a post-conviction proceeding, the petitioner bears the burden of establishing
grounds for relief by a preponderance of the evidence. Bethea v. State, 983
N.E.2d 1134, 1138 (Ind. 2013). “When appealing the denial of post-conviction
relief, the petitioner stands in the position of one appealing from a negative
Court of Appeals of Indiana | Memorandum Decision 12A05-1702-PC-303 | October 17, 2017 Page 5 of 12 judgment.” Id. (quoting Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)). In
order to prevail, the petitioner must demonstrate that the evidence as a whole
leads unerringly and unmistakably to a conclusion opposite the post-conviction
court’s conclusion. Id. Although we do not defer to a post-conviction court’s
legal conclusions, we will reverse its findings and judgment only upon a
showing of clear error, i.e., “that which leaves us with a definite and firm
conviction that a mistake has been made.” Id. (quoting Ben-Yisrayl v. State, 729
N.E.2d 102, 106 (Ind. 2000)).
[11] On appeal, Sharp argues that the post-conviction court erred in rejecting his
claims of ineffective assistance of trial and appellate counsel. A petitioner will
prevail on a claim of ineffective assistance of counsel only upon a showing that
counsel’s performance fell below an objective standard of reasonableness and
that the deficient performance prejudiced the petitioner. Id. To satisfy the first
element, the petitioner must demonstrate deficient performance, which is
“representation that fell below an objective standard of reasonableness,
committing errors so serious that the defendant did not have the ‘counsel’
guaranteed by the Sixth Amendment.” Id. (quoting McCary v. State, 761 N.E.2d
389, 392 (Ind. 2002)). To satisfy the second element, the petitioner must show
prejudice, which is “a reasonable probability that, but for counsel’s errors, the
result of the proceeding would have been different.” Id. at 1139. “A reasonable
probability is one that is sufficient to undermine confidence in the outcome.”
Kubsch v. State, 934 N.E.2d 1138, 1147 (Ind. 2010) (quoting Strickland v.
Washington, 466 U.S. 668, 694 (1984)).
Court of Appeals of Indiana | Memorandum Decision 12A05-1702-PC-303 | October 17, 2017 Page 6 of 12 [12] Because a petitioner must prove both deficient performance and prejudice in
order to prevail on a claim of ineffective assistance of counsel, the failure to
prove either element defeats such a claim. See Young v. State, 746 N.E.2d 920,
927 (Ind. 2001) (holding that because the two elements of Strickland are
separate and independent inquiries, the court may dispose of the claim on the
ground of lack of sufficient prejudice alone). This standard applies to both
ineffective assistance of trial counsel and appellate counsel claims. Wright v.
State, 881 N.E.2d 1018, 1022 (Ind. Ct. App. 2008), trans. denied.
Incorrect Sentencing Range
[13] Sharp first argues that his trial counsel was ineffective for misstating that the
minimum sentence available for his Class A felony conviction was thirty years
rather than twenty years and that appellate counsel was ineffective for failing to
challenge his sentence upon such basis. At the sentencing hearing, the State
indicated to the court that I.C. § 35-50-2-2(i) “change[d] the minimum executed
sentence [Sharp] can receive from twenty to thirty.” Trial Transcript at 211.
The trial court indicated its agreement with the statement by replying, “Okay.”
Id. Sharp’s trial counsel then stated during his sentencing argument, “as the
court’s well aware an A felony normally carries a sentence of twenty to fifty
years but because of this type of crime . . . the statutes . . . have made this . . .
more serious and limited the Court’s discretion to thirty to fifty years.” Id. at
213.
Court of Appeals of Indiana | Memorandum Decision 12A05-1702-PC-303 | October 17, 2017 Page 7 of 12 [14] In Hamilton v. State, 921 N.E.2d 27, 30-31 (Ind. Ct. App. 2010), trans. denied,
which was decided prior to Sharp’s sentencing hearing, this court held that
then-I.C. § 35-50-2-2(i) did not alter the twenty-year minimum sentence
available for a Class A felony conviction, but altered only what part of a
sentence could be suspended.4 There is thus no dispute that trial counsel
rendered deficient performance by misstating the legal effect of I.C. § 35-50-2-
2(i) as setting the minimum sentence that Sharp could receive at thirty years
and/or by not objecting to the State’s misstatement of the sentencing range.
[15] The post-conviction court found that “there is no evidence that Sharp was
prejudiced by trial counsel’s misstatement, or that the sentencing court was in
some way mislead [sic] by trial counsel’s misstatement.” Appellant’s Appendix
Vol. 2 at 72. We disagree. While we acknowledge that a trial court is presumed
to know and correctly apply the law, see Crider v. State, 984 N.E.2d 618, 624
(Ind. 2013), our review of the record leads us to conclude that this presumption
has been rebutted. The State and counsel clearly believed that the sentencing
range Sharp faced was thirty to fifty years. Further, the trial court indicated its
agreement with the State’s misstatement of the applicable sentencing range, and
trial counsel’s subsequent misstatement only compounded the notion that the
minimum sentence Sharp could receive was thirty years, not twenty. Even
though the trial court did not explicitly state the incorrect range, there is no
4 Our Supreme Court subsequently expressed its agreement with this interpretation of the statute. See Miller v. State, 943 N.E.2d 348, 349 (Ind. 2011).
Court of Appeals of Indiana | Memorandum Decision 12A05-1702-PC-303 | October 17, 2017 Page 8 of 12 evidence in the record indicating that the trial court was not misled by the
State’s or defense counsel’s statements setting out the wrong sentencing range.
[16] Very recently, our Supreme Court considered this very issue, albeit on direct
appeal. In McGuire v. State, 77 N.E.3d 1198 (Ind. 2017) (Massa, J. dissenting),
the State, defense counsel, and the trial court “expressed agreement”5 that the
statutory sentencing range for the defendant’s crime was thirty to fifty years,
when in fact the proper sentencing range was twenty to fifty years. Id. at 1199.
The Court of Appeals had ultimately affirmed the defendant’s forty-year
sentence because it “‘could say with confidence that the trial court would have
imposed the same sentence had it properly considered the facts and law
applicable to the case.’” Id. Despite the Court of Appeals’ assessment, a
majority of the Supreme Court6 held that remand for a new sentencing hearing
was appropriate under the circumstances. Id. That the issue is now being
presented in post-conviction review does not alter this outcome.
[17] The record indicates the trial court was operating under the misconception that
the sentencing range was thirty to fifty years rather than twenty to fifty. Even
though the trial court provided a thorough sentencing statement, we cannot say
with confidence that the trial court would have imposed the same sentence had
it considered the proper sentencing range. We therefore conclude that Sharp
5 In McGuire, the trial court had explicitly stated in both its oral sentencing statement and written sentencing order that the sentencing range for the crime committed was thirty to fifty years. 6 Justice Massa dissented, “concur[ring] completely” with [the Court of Appeals’] assessment.” Id. at 1200.
Court of Appeals of Indiana | Memorandum Decision 12A05-1702-PC-303 | October 17, 2017 Page 9 of 12 has established that he was prejudiced in this regard. Having concluded that
trial counsel rendered ineffective assistance, we need not address Sharp’s
argument in this regard as it relates to appellate counsel’s performance.
Credit Restricted Felon Status
[18] Sharp also argues that his trial and appellate counsel rendered ineffective
assistance with regard to the determination that he is a CRF. As set out above,
the time period of the offenses overlapped the July 1, 2008 effective date of the
CRF statute. We further note that application of the CRF statute to crimes
occurring prior to its effective date has been held to constitute a violation of the
ex post facto clause of the United States Constitution. See Upton, 904 N.E.2d at
704-06.
[19] Here, the sentencing court addressed this issue sua sponte and concluded that
there was no ex post facto violation because the evidence established that Sharp
committed deviate conduct after the CRF statute’s effective date. Sharp cannot
therefore establish prejudice on account of a lack of objection by trial counsel
because such did not keep the trial court from considering the claim.
[20] On appeal, appellate counsel did not raise the ex post facto issue before this
court. On transfer to the Supreme Court, appellate counsel asserted for the first
time during oral argument that Sharp’s designation as a CRF violated the ex
post facto clause. In a footnote, the Supreme Court noted that it “need not
explore the nature of the ex post facto prohibition,” finding that there was
sufficient evidence from which a reasonable jury could conclude that Sharp
Court of Appeals of Indiana | Memorandum Decision 12A05-1702-PC-303 | October 17, 2017 Page 10 of 12 committed the offenses after the effective date of the CRF statute.7 The post-
conviction court held that appellate counsel was not ineffective because the
Supreme Court considered and rejected this claim.
[21] Sharp concedes that there was sufficient evidence that he committed his
offenses after July 1, 2008, stating that the Supreme Court “rightly” rejected
such claim on direct appeal. Appellant’s Brief at 26. He argues, however, that
appellate counsel based his ex post facto claim on the wrong grounds. He
asserts that appellate counsel should have argued that “the jury’s general verdict
made it impossible to say that he had been convicted of a crime committed after
the effective date of the CRF statute.” Id. at 27. In other words, Sharp
maintains that the jury’s general verdict gave rise to the possibility that Sharp’s
CRF-designation resulted from a crime committed before the effective date of
the CRF statute.
[22] “[W]here an issue, although differently designated, was previously considered and
determined upon a criminal defendant’s direct appeal, the State may defend
against defendant’s post-conviction relief petition on grounds of prior
adjudication or res judicata.” Reed v. State, 856 N.E.2d 1189, 1194 (Ind. 206)
(quoting Cambridge v. State, 468 N.E.2d 1047, 1049 (Ind. 1984)) (emphasis in
original). We find Sharp’s general judgment argument to simply be a
7 There were nine weekends between July 1 and August 31, 2008. C.S. testified that he stayed with his mother and Sharp every other weekend and that Sharp had performed deviate sexual conduct on him each time he visited. In addition, a case worker noted that C.S. reported that Sharp had molested him as recently as August 2008.
Court of Appeals of Indiana | Memorandum Decision 12A05-1702-PC-303 | October 17, 2017 Page 11 of 12 restatement of the sufficiency of the evidence argument addressed by the
Supreme Court and decided against him. Sharp thus cannot establish prejudice
based on the argument presented by appellate counsel challenging his CRF
designation as a violation of the ex post facto clause.
[23] In sum, the post-conviction court erred by rejecting Sharp’s claim of ineffective
assistance of trial counsel regarding the misstatements about the proper
sentencing range. We therefore vacate Sharp’s sentence and remand for a new
sentencing hearing. But, it was not error for the post-conviction court to
determine that Sharp’s ex post facto claim was not the subject of ineffective
representation of trial or appellate counsel.
[24] Judgment affirmed in part, reversed in part, and remanded with instructions.
[25] Baker, J. and Bailey, J., concur.
Court of Appeals of Indiana | Memorandum Decision 12A05-1702-PC-303 | October 17, 2017 Page 12 of 12