Justices reverse grant of post-conviction relief

September 18, 2014

The Indiana Supreme Court on Wednesday rejected a defendant’s claim that his attorneys were ineffective for not arguing that, based on a Supreme Court case, his conviction for Class B felony criminal confinement should be reversed or reduced. But the man inappropriately relies on the case, and what he claims his attorneys should have argued is not the law.

Frank Greene was convicted of several offenses for terrorizing his girlfriend and holding her captive over the course of two days. He challenged his conviction of Class B felony criminal confinement, which is based on the evidence that, while in their bedroom, he strangled Brenda Johnson until she passed out. When she woke up, she was on a couch in their living room.

Greene’s appeals were denied, so he sought post-conviction relief. He argued that his trial and appellate counsel should have argued that Long v. State, 743 N.E.2d 253 (Ind. 2001), holds that in order for a person to be convicted of Class B felony criminal confinement, the state must have proven beyond a reasonable doubt that serious bodily injury to the victim resulted when the victim was moved from one place to another. The post-conviction court ordered Greene’s conviction reduced to a Class D felony and resentenced accordingly.  

Long’s Class B felony criminal confinement was reduced because the state did not present evidence that his victim’s fractured facial bones occurred when she was forcefully removed from one place to another. Without that evidence his charge could not be enhanced, and Long’s victim was murdered during her captivity.

In Greene’s case the victim was able to testify, allowing the jury to reasonably infer that Greene’s act of strangulation both facilitated the removal of Johnson from their bedroom and resulted in serious bodily injury to her, Justice Steven David wrote.    

“[T]he viability of Greene’s ineffective assistance of counsel claim turns on the strength of his assessment of Long, which he claims holds that serious bodily injury to the victim must occur during the course of the victim’s removal for a class B felony criminal confinement conviction to be upheld. Our review has revealed that Long … actually hold[s] that serious bodily injury to the victim must be sustained during the charged offense of criminal confinement: a defendant’s knowing or intentional forcible removal of the victim from one place to another. Thus, the victim must suffer serious bodily injury as the result of the act of forcible removal, whether or not the act of force occurs simultaneously with the act of removal.

“What Greene argues his trial and appellate counsel should have argued, then, is not the law. By failing to present an incorrect interpretation of case law, Greene’s counsels’ conduct did not fall below an objective standard of reasonableness, and they did not render ineffective assistance. In deciding otherwise, the post-conviction court committed clear error,” he wrote.

In State of Indiana v. Frank Greene, 49S02-1403-PC-172,  justices reversed modification of Greene’s conviction and sentence for the Class B felony.  



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