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COA affirms post-conviction relief for ineffective counsel

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A man who was convicted of multiple felonies related to a two-day instance of domestic violence in which he “terrorized” his girlfriend in their apartment will be resentenced on a lesser charge on one conviction.

The Indiana Court of Appeals on Friday affirmed a post-conviction court’s grant of relief from a Class B felony criminal confinement conviction because Frank Greene’s counsel failed to cite relevant caselaw. The panel remanded for resentencing on the confinement conviction reduced to a Class D felony.

“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,” Judge Patricia Riley wrote in State of Indiana v. Frank Greene, 49A02-1303-PC-228.

Long established that the elements of Class B felony confinement require that bodily injuries be caused by forcibly removing someone from one place to another. While Greene’s victim sustained injuries for which Greene also was charged, convicted and sentenced, evidence didn’t directly support the conviction as a Class B felony, the court ruled.

“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,’” Riley wrote in an opinion joined by Judge James Kirsch.

Chief Judge Margret Robb concurred in a separate opinion but said she didn’t believe the outcome was necessarily compelled by Long. She also noted that effective July 1, 2014, the statute has been amended to a Level 3 felony, though “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,” Robb wrote.



 

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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