Michael Sharp v. State of Indiana (mem. dec.)
12A05-1702-PC-303
Ind. Ct. App.Oct 17, 2017Background
- Michael Sharp was convicted of Class A (deviate sexual conduct) and Class C (fondling) child molesting based on abuse of his stepson, C.S., occurring between Aug. 2007 and Aug. 2008.
- At sentencing the State and defense counsel (and the court) believed the Class A sentencing range was 30–50 years due to I.C. § 35-50-2-2(i); in fact the proper range was 20–50 years.
- The trial court sentenced Sharp to 40 years executed on the Class A conviction and 6 years concurrent on the Class C conviction, and designated him a credit-restricted felon (CRF).
- Sharp appealed; the Court of Appeals and then the Indiana Supreme Court affirmed the convictions and held the CRF designation was supported by evidence that some molestations occurred after July 1, 2008.
- Sharp filed a post-conviction petition alleging ineffective assistance of trial counsel for misstating the sentencing range and failing to challenge the CRF designation, and ineffective assistance of appellate counsel for related failures.
- The post-conviction court denied relief; on appeal this Court affirmed in part, reversed in part, and remanded for resentencing based on the sentencing-range error.
Issues
| Issue | Plaintiff's Argument (Sharp) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether trial counsel was ineffective for misstating the Class A sentencing minimum as 30 yrs (vs. 20 yrs) | Counsel’s misstatement was deficient and prejudiced Sharp because the court relied on the wrong range | Court presumed to know law; no prejudice because court gave a thorough statement | Held ineffective assistance of trial counsel; prejudice shown; vacated sentence and remanded for resentencing |
| Whether appellate counsel was ineffective for failing to raise sentencing-range error on direct appeal | Appellate counsel should have challenged sentence based on incorrect range | State argues appellate process provided review and sentence was affirmed on merits | Court need not decide appellate counsel on this point after finding trial counsel deficient; resentencing ordered |
| Whether trial counsel was ineffective for failing to object to CRF designation as ex post facto violation | Sharp argues CRF designation may be ex post facto because jury returned a general verdict covering time both before and after statute’s effective date | State and trial court relied on evidence supporting post–July 1, 2008 acts; no ex post facto violation | Court holds no ineffective assistance on CRF claim; Supreme Court already found sufficient evidence of post–July 1, 2008 offenses, so no prejudice shown |
| Whether appellate counsel was ineffective for how he argued the CRF/ex post facto issue | Sharp contends appellate counsel argued wrong theory and should have attacked the general verdict and sufficiency to support post–July 1 finding | State points to Supreme Court consideration and rejection of the claim on direct appeal | Court finds claim precluded by prior adjudication; appellate counsel not ineffective as Supreme Court addressed and rejected the argument |
Key Cases Cited
- Sharp v. State, 951 N.E.2d 282 (Ind. Ct. App. 2011) (appeal affirming convictions and sentence)
- Sharp v. State, 970 N.E.2d 647 (Ind. 2012) (transfer; held CRF status could be considered and evidence supported post‑statute acts)
- Upton v. State, 904 N.E.2d 700 (Ind. Ct. App. 2009) (applying CRF statute to pre‑effective‑date crimes is ex post facto violation)
- Hamilton v. State, 921 N.E.2d 27 (Ind. Ct. App. 2010) (I.C. § 35‑50‑2‑2(i) does not alter 20‑year Class A minimum; affects suspension only)
- McGuire v. State, 77 N.E.3d 1198 (Ind. 2017) (remanded for resentencing where court, State, and defense all operated under incorrect sentencing range)
- Bethea v. State, 983 N.E.2d 1134 (Ind. 2013) (post‑conviction standards for burden and review; Strickland framework applied)