FOR PUBLICATION Dec 27 2013, 7:24 am
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
GREGORY F. ZOELLER STEPHEN T. OWENS
Attorney General of Indiana Public Defender of Indiana
JUSTIN F. ROEBEL HOPE FEY
Deputy Attorney General Deputy Public Defender
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
STATE OF INDIANA, )
)
Appellant-Respondent, )
)
vs. ) No. 49A02-1303-PC-228
)
FRANK GREENE, )
)
Appellee-Petitioner. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Clark H. Rogers, Judge
Cause No. 49F25-0811-PC-261114
December 27, 2013
OPINION - FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Respondent, the State of Indiana (State), appeals the post-conviction
court’s grant of Appellee-Petitioner’s, Frank Greene (Greene), petition for post-
conviction relief.
We affirm and remand.
ISSUE
The State raises one issue on appeal, which we restate as: Whether the post-
conviction court erred when it found that Greene’s trial and appellate counsel were
ineffective for failing to adequately challenge the sufficiency of the evidence for criminal
confinement as a Class B felony based on counsels’ omission to cite Long v. State.
FACTS AND PROCEDURAL HISTORY
In 2009, Greene was convicted of two Counts of criminal confinement, a Class B
felony and a Class D felony, one Count of intimidation, a Class D felony, and one Count
of domestic battery, a Class A misdemeanor, based on a prolonged incident spanning two
days in November of 2008 in which he terrorized his girlfriend, Brenda Johnson
(Johnson), and prevented her from leaving their shared apartment. See Greene v. State,
49A05-0905-CR-250, at *1 (Ind. Ct. App. Oct. 30, 2009), reh’g granted, Memo Op. (Ind.
Ct. App. Feb, 17, 2010), trans. denied. In addition, Greene was adjudicated to be an
habitual offender. Although Greene received multiple convictions derived from this
incident, the only conviction at issue in the present post-conviction appeal is Greene’s
conviction for criminal confinement as a Class B felony.
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Greene’s charging information for criminal confinement, as a Class B felony, Ind.
Code § 35-42-3-3, provided as follows:
[Greene], on or about November 15, 2008, did knowingly, by force, or
threat of force, remove [Johnson] from one place to another, that is:
forcibly removed [Johnson] from the bedroom to the living room of her
residence, which resulted in serious bodily injury, that is: loss of
consciousness from being strangled, to [Johnson].
(Direct Appeal App., p. 22). On direct appeal, we found the following underlying facts
related to the charge:
When [Johnson] awoke on Saturday morning, she again attempted to leave
the home. Greene still refused to allow her to leave, grabbing her, slapping
her in the face several times, and kicking her. Then, Greene placed his
hands around her throat and strangled her until she lost consciousness.
When she regained consciousness, she was on the couch in the living room.
Shortly thereafter, at approximately 1:00 a.m. on Sunday morning, the
authorities arrived. Johnson had bruises on her face, neck, arms, and chest,
and broken blood vessels on her neck.
Greene, 49A05-0905-CR-250, at *1. During the bench trial, Johnson testified that at
some point on Saturday, her niece, Ashley, arrived at the apartment. Greene opened the
door but told Ashley that he “didn’t want her in the house and to get the hell up out of the
house[.]” (Transcript Dir. App. p. 23). When Johnson jumped between Greene and
Ashley, Greene grabbed Johnson with both hands around her throat and started strangling
her. Johnson’s vision became “real blurry,” she started seeing little spots, and lost
consciousness. (Tr. Dir. App. p. 22). Upon regaining consciousness, Johnson noticed
she was on the couch in the living room. She realized that she had been moved from the
bedroom, where Johnson had attempted to strangle her, to the living room.
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On direct appeal, Greene argued that he was denied the right to a speedy trial and
contested the sufficiency of his conviction for criminal confinement as a Class B felony.
We affirmed the trial court on both issues. See Greene, 49A05-0905-CR-250, at *3.
However, while Greene was challenging his Class B felony criminal confinement, this
court analyzed the sufficiency of the evidence for criminal confinement as a Class D
felony. After we granted Greene’s request for a rehearing, the majority noted that even
though we mistakenly applied our analysis to the Class D felony conviction, the majority
found its investigation equally accurate with respect to the Class B felony conviction and
affirmed the trial court’s judgment. See Greene, 49A05-0905-CR-250, Memo Op. on
reh’g at *1. Without referencing case law, Judge Riley dissented, concluding that the
State failed its burden to establish that the “loss of consciousness from strangulation”
resulted from Greene’s removal of Johnson from the bedroom to the living room. See
Greene, 49A05-0905-CR-250, Memo Op. on reh’g at *2. Our supreme court denied
Greene’s petition for transfer.
On November 9, 2010, Greene filed a petition for post-conviction relief,
contending that he received ineffective assistance of both trial and appellate counsel for
failing to rely on Long v. State, 743 N.E.2d 253 (Ind. 2001) in their respective argument
that the State presented insufficient evidence of criminal confinement, as a Class B
felony. On December 4, 2012, the post-conviction court conducted a hearing on
Greene’s petition for relief. During the hearing, both trial and appellate counsel testified
that at the time of the relevant proceedings they were not aware of the Long opinion and
would have referred to it if they had known it existed. On February 13, 2013, the post-
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conviction court issued its findings of fact and conclusions of law, granting Greene’s
petition for post-conviction relief. Focusing on Long, the post-conviction court stated
that if counsel would have adequately researched the sufficiency of the evidence issue
and cited to Long as ruling precedent, the trial court and appellate court “would have had
no choice but to reverse Greene’s conviction for the Class B felony.” (Appellant’s App.
p. 101).
The State now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
Under the rules of post-conviction relief, the petitioner must establish the grounds
for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1, § 5;
Strowmatt v. State, 779 N.E.2d 971, 974-75 (Ind. Ct. App. 2002). The purpose of post-
conviction relief is not to provide a substitute for direct appeal, but to provide a means for
raising issues not known or available to the defendant at the time of the original appeal.
Id. If an issue was available on direct appeal but not litigated, it is waived. Id.
II. Ineffective Assistance of Counsel
The State contends that the post-conviction court erred by concluding that Greene
had been denied the effective assistance of both trial and appellate counsel. The standard
by which we review claims of ineffective assistance of counsel is well established. In
order to prevail on a claim of this nature, a defendant must satisfy a two-pronged test,
showing that: (1) his counsel’s performance fell below an objective standard of
reasonableness based on prevailing professional norms; and (2) there is a reasonable
5
probability that, but for counsel’s errors, the result of the proceeding would have been
different. Johnson v. State, 832 N.E.2d 985, 996 (Ind. Ct. App. 2005), trans. denied
(citing Strickland v. Washington, 466 U.S. 668, 690, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984), reh’g denied). The two prongs of the Strickland test are separate and independent
inquiries. Johnson, 832 N.E.2d at 996. Thus, “[i]f it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should
be followed.” Timberlake, v. State, 753 N.E.2d 591, 603 (Ind. 2001), reh’g denied, cert.
denied, 537 U.S. 839 (2002) (quoting Strickland, 466 U.S. at 697).
Counsel is afforded considerable discretion in choosing strategy and tactics and
we will accord those decisions deference. Timberlake, 753 N.E.2d at 603. A strong
presumption arises that counsel rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment. Id. 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. Isolated
mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily
render representation ineffective. Id. Furthermore, we will not speculate as to what may
or may not have been advantageous trial strategy as counsel should be given deference in
choosing a trial strategy which, at the time and under the circumstances, seems best.
Johnson, 832 N.E.2d at 997.
The State charged Greene with knowingly, by force or threat of force, removing
Johnson from the bedroom to the living room, which resulted in serious bodily injury,
6
namely loss of consciousness from being strangled. The criminal confinement statute
reads as follows:
A person who knowingly or intentionally:
(1) confines another person without the other person’s consent; or
(2) removes another person, by fraud, enticement, force, or threat of force, from
one (1) place to another
commits criminal confinement, a Class D felony. However, the offense is a Class
B felony if it is committed while armed with a deadly weapon or results in serious
bodily injury to another person.
I.C. § 35-42-3-3.1 Here, the State charged Greene only with Johnson’s removal, not with
her confinement in place.
The State now asserts that “[t]rial and appellate counsel’s performance cannot be
considered ineffective for failing to cite a case that is legally and factually distinct from
the present case.” (Appellant’s Br. p. 9) Specifically, the State maintains that nothing in
the Long opinion supports the post-conviction court’s conclusion that Long requires the
injuries resulting from the Class B felony conviction to originate during the act of
removal. See Appellant’s Br. p. 9. We disagree.
Long was the first opinion in a series of three companion cases issued on the same
day, revolving around a 1995 criminal episode in Linton, Indiana that resulted in the
death of Pamela Foddrill. Long, 743 N.E.2d at 256. See also Redman v. State, 743
1
We note that our Legislature has amended this statute by deleting section (2). Effective July 1, 2014, the
statute will read, in pertinent part, as follows:
(a) A person who knowingly or intentionally confines another person without the other person’s
consent commits criminal confinement. Except as provided in subsection (b), the offense of
criminal confinement is a Level 6 felony.
P.L. 158-2013, Sec. 434, eff. July 1, 2014.
7
N.E.2d at 263 (Ind. 2001); Russell v. State, 743 N.E.2d 269 (Ind. 2001). Focusing on the
criminal confinement as a Class B felony, our supreme court noted as follows:
The defendant argues that, while there was evidence that the victim
suffered fractured bones, there was no evidence that these injuries resulted
from her being forcefully removed from one place to another and that, for
this reason, there was insufficient evidence to prove the serious bodily
injury element of criminal confinement as a Class B felony. The State
argues that “the jury should have inferred that Foddrill’s injuries to her nose
and eye socket were caused during her movement from one place to another
. . .,” but does not identify any evidence tending to prove this asserting. We
find that the evidence was insufficient to establish that the conduct
constituting the charged offense of criminal confinement resulted in serious
bodily injury, as required to constitute a [C]lass B felony.
Long, 743 N.E.2d at 259 (internal references omitted).
The supreme court was even more pronounced in its conclusion that the elevation
of criminal confinement to a Class B felony can only be sustained by injuries inflicted
during the removal of the victim from one place to another in Redman, Long’s
companion case. Again analyzing the sufficiency of the evidence for a Class B felony
criminal confinement conviction, the court stated in Redman:
Criminal confinement is a Class B felony if it “results in serious bodily
injury to another person.” Ind. Code § 35-42-3-3. Redman contends that
there was no evidence that the victim’s fractured bones resulted from the
criminal offense of removal from one place to another. The State does not
respond to this contention, but rather argues only that Redman held the
victim captive in an attic for several days and that the victim’s injuries
resulted “during the course of her confinement.” The State does not
identify any evidence tending to show that the victim’s broken bones
resulted from Redman’s removal of her from one place to another. Because
we conclude that there was insufficient evidence to permit a jury to find
beyond a reasonable doubt that the victim’s injuries resulted from the
charged criminal offense of criminal confinement by removing the victim
from one place to another, we vacate the conviction as a Class B felony [.]
Redman, 743 N.E.2d at 265 (emphasis added; internal references omitted).
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We find both Long and Redman to be on point with the facts of the case before us.
Here, as in Long and Redman, Greene was charged with criminal confinement by
application of the removal prong of the statute. The State alleged that as a result of
Johnson’s removal, she was strangled and lost consciousness. The evidence presented at
trial reflects that Greene strangled Johnson in the bedroom until she became unconscious.
Upon regaining consciousness, Johnson noticed that she was in the living room. She has
no recollection of being moved from the bedroom to the living room. While a reasonable
inference can be made that Greene forcibly moved Johnson from the bedroom to the
living room, there is a complete lack of evidence that this forced move resulted in serious
bodily injury. Because the strangulation and unconsciousness occurred before Greene
forcibly moved Johnson, these injuries did not result from the charged criminal offense of
criminal confinement by removing Johnson from one place to another. See Redman, 743
N.E.2d at 265.2
Therefore, by failing to adequately research and bring a meritorious issue to the
attention of the court, both trial and appellate counsels’ representation was inadequate
and ineffective. See Stevens v. State, 770 N.E.2d 739, 746 (Ind. 2002); Bieghler v. State,
690 N.E.2d 188, 193-96 (Ind. 1997). Both counsels’ failure prejudiced Greene as the
application of Long and Redman indicate that he should not have been convicted of
criminal confinement as a Class B felony. Thus, we affirm the post-conviction court,
2
The State cites to Carter v. State, 766 N.E.2d 377, 380 (Ind. 2002),
as standing for the proposition that “injuries resulting from force used to cause the removal should be
considered part of the crime[.]” (Appellant’s Br. p. 12). However, although the State had charged Carter
with two Counts of criminal confinement as Class B felonies, the opinion is unclear which part of the
criminal confinement statute—confinement in place or removal—Carter was convicted of.
9
reduce Greene’s conviction in Count I to a conviction for criminal confinement as a Class
D felony, and remand to the trial court for resentencing.
CONCLUSION
Based on the foregoing, we conclude that Greene received ineffective assistance of
counsel. We remand to the trial court for resentencing.
Affirmed.
KIRSCH, J. concurs
ROBB, C. J. concurs in result with separate opinion
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IN THE
COURT OF APPEALS OF INDIANA
STATE OF INDIANA, )
)
Appellant-Respondent, )
)
vs. ) No. 49A02-1303-PC-228
)
FRANK GREENE, )
)
Appellee-Respondent. )
ROBB, Chief Judge, concurring in result
I respectfully concur in result. I believe the majority’s outcome is not necessarily
compelled by Long. In Long, the confinement by removal of the victim was alleged to
have resulted in fractured bones, but there was no evidence of a nexus between the
removal and the injury. 743 N.E.2d at 259. Here, there was clear evidence of a temporal
connection between the injury and the removal, as the victim testified that Greene put his
hands around her throat and strangled her to the point of unconsciousness, and when she
regained consciousness she was in a different room.
I acknowledge, however, that the language of the confinement statute requires that
for criminal confinement to be a Class B felony, it must “result[ ] in” serious bodily
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injury. Ind. Code § 35-42-3-3(b)(2)(B). When the defendant is charged with
confinement by removal causing serious bodily injury, this language would seem to
require that the injury occur during the removal and not prior to, even if, as here, the
injury likely facilitated the removal, whereas Long simply requires some nexus between
the removal and the injury. As the majority has pointed out, the confinement statute has
been amended effective July 1, 2014. The “confinement by removal” subsection has
been deleted from the definition of criminal confinement, but it has become the basic
definition of kidnapping, also a Level 6 felony. See P.L. 158-2013, Sec. 433 (“A person
who knowingly or intentionally removes another person, by fraud, enticement, force, or
threat of force, from one place to another commits kidnapping.”). In either case, criminal
confinement or kidnapping, the offense will be a Level 3 felony if it results in serious
bodily injury. Despite separating the two subsections of what is now criminal
confinement, the legislature has not altered the strict language which seemingly requires
that the injury occur during the removal.
Because the statute itself precludes the enhancement to a Class B felony, and
because neither Greene’s trial nor his appellate counsel raised this issue irrespective of
Long, I concur with the majority that the post-conviction court properly granted post-
conviction relief.
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