Baker, J.
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. …
On February 24, 2009, at around 1:00 p.m., Lindsey approached a woman in the parking lot of a Hobby Lobby. … 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.
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 … 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 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.
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. … Lindsey came to an agreement with the State to plead guilty to the offenses in exchange for a thirty two-year sentence, which would be eight years shorter than the forty-year maximum sentence he faced.
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. …
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.
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. … the trial court sentenced Lindsey to the maximum sentence of twenty years on each conviction, to be served consecutively. ….
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. … Because the determination of whether certain offenses constitute a single episode of criminal conduct “is a fact-sensitive inquiry,” 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.
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.” …
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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. …
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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 fact sensitive, 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. … Lindsey has met his burden of showing that he was prejudiced.
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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.
Mathias, J., and Pyle, J., concur.