Malcolm M. Pettis v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Aug 26 2015, 9:36 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Gregory F. Zoeller
Wieneke Law Office, LLC Attorney General of Indiana
Plainfield, Indiana
Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Malcolm M. Pettis, August 26, 2015
Appellant-Defendant, Court of Appeals Case No.
84A01-1412-CR-555
v. Appeal from the Vigo Superior
Court
State of Indiana, The Honorable David R. Bolk,
Appellee-Plaintiff. Judge
Cause No. 84D03-1405-FA-1190
Najam, Judge.
Statement of the Case
[1] Malcolm Pettis appeals his convictions for three counts of dealing in cocaine, as
Class A felonies; dealing in marijuana, as a Class C felony; maintaining a
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common nuisance, a Class D felony; and two counts of operating a motor
vehicle while privileges are suspended, Class D felonies; following a jury trial.
Pettis presents a single issue for our review, namely, whether the trial court
erred when it allowed the State to amend the charging information five days
before trial. We affirm.
Facts and Procedural History
[2] On February 27, 2014, and on March 4, 6, and 18, 2014, officers with the Terre
Haute Police Department conducted controlled drug buys whereby a
confidential informant (“CI”) arranged to buy marijuana and cocaine from
Pettis. On May 5, Detective Martin Dooley, Jr. with the Vigo County Drug
Task Force filed a probable cause affidavit describing those controlled buys.
Also on May 5, the State charged Pettis with three counts of dealing in cocaine,
as Class A felonies; three counts of possession of cocaine, as Class C felonies;
dealing in marijuana, as a Class C felony; three counts of maintaining a
common nuisance, Class D felonies; and two counts of operating a motor
vehicle while privileges are suspended, Class D felonies.
[3] On October 23, 2014, five days before Pettis’ scheduled trial, the trial court held
a final pre-trial conference, and the State moved to amend the charging
information and separately to dismiss five of his charges.1 In support of its
1
The State moved to dismiss all three possession of cocaine charges and two of the three maintaining a
common nuisance charges.
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motion to amend the charging information, the State pointed out that, while the
probable cause affidavit contained the correct dates of the alleged offenses, the
charging information contained “scrivener’s errors” misstating the dates of two
of the charged offenses. Appellant’s App. at 76. In particular, the charging
information erroneously stated that the offenses alleged in Counts 3 and 6
occurred on March 20, 2014, when they actually occurred on March 18, 2014.
And the charging information erroneously stated that the offense alleged in
Count 7 occurred on March 20, 2014, when it actually occurred on February
27, 2014.
[4] Pettis objected to the proposed amendment as follows: “I would object. We’re
five days before trial and he’s amending the charging information, changing the
dates and it’s just kind of a major thing, major part of the charging information,
the date on which the alleged incidents occurred.” Pre-Trial Hearing Tr. at 6.
But Pettis did not request a continuance. The trial court granted the State’s
motion to amend the information. Following the trial on October 28-29, a jury
found Pettis guilty as charged. The trial court entered judgment and sentence
accordingly. This appeal ensued.
Discussion and Decision
[5] Pettis contends that the trial court erred when it allowed the State to amend the
charging information five days before trial. In particular, Pettis maintains that
“the date upon which each transaction occurred was of utmost importance” to
his defense, and the late amendment prejudiced his substantial rights.
Appellant’s Br. at 4. We cannot agree.
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[6] Indiana Code Section 35-34-1-5 provides in relevant part that a charging
information may be amended on motion by the prosecuting attorney “at any
time because of any immaterial defect,” including the failure to state the time or
place at which the offense was committed where the time or place is not of the
essence of the offense.
[7] In Bennett v. State, 5 N.E.3d 498 (Ind. Ct. App. 2014), the defendant argued that
the trial court should have disallowed the State’s amendment to the charging
information, during trial, to change the date of an alleged offense. We disagreed
and held as follows:
“An amendment is one of form and not substance if a defense
under the original information would be equally available after
the amendment and the accused’s evidence would apply equally
to the information in either form.” McIntyre v. State, 717 N.E.2d
114, 125 (Ind. 1999). “Further, an amendment is of substance
only if it is essential to making a valid charge of the crime.” Id.
at 125-26. Furthermore, “[w]hen time is not an element of the
crime charged, or ‘of the essence of the offense,’ the State is only
required to prove that the offense occurred at any time within the
statutory period of limitations; the State is not required to prove
the offense occurred on the precise date alleged.” Poe v. State,
775 N.E.2d 681, 686 (Ind. Ct. App. 2002).
In the instant matter, . . . [t]he charging information originally
alleged that Bennett committed the charged crimes “on or about
December 7, 2011.” The State requested permission to amend
the charging information to allege that Bennett committed the
charged crimes “on or about December 6, 2011,” after it became
clear from the State’s evidence that Bennett sold the cocaine in
question to Sugarman during the late evening hours of December
6, 2011. The amendment requested by the State was not a
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change to the substance of the charging information as time is
not an element of any of the crimes charged. See Ind. Code §§
35-48-4-1(a)(1), 35-48-4-6(a), 35-48-4-13(b)(1), and 35-48-4-
11(1).[2] Further, under Indiana law, the allegation that Bennett
committed the charged crimes “on or about December 7, 2011”
clearly did not limit the State only to the events of December 7,
2011, especially in light of the fact that time is not an element of
any of the crimes charged. See Poe, 775 N.E.2d at 686-87. As
such, we conclude that time was not “of the essence,” and, as a
result, the State was not required to prove that the offenses
occurred on the precise dates alleged.
Because time was not of the essence, we conclude that the
requested amendment falls under Indiana Code section 35-34-1-
5(a)(7), which again provides that a charging information “may
be amended . . . at any time because of any immaterial defect,
including: . . . (7) the failure to state the time or place at which the
offense was committed where the time or place is not of the essence of the
offense.” (Emphases added).
Id. at 514.
[8] Likewise, here, the State sought to amend Pettis’ dealing in cocaine and dealing
in marijuana charges by changing the dates of the alleged offenses, and time is
not an element of either of those offenses.3 I.C. §§ 35-48-4-1 and 35-48-4-10.
The amendments were designed to fix immaterial defects, and the trial court did
not err when it allowed the amendment five days before Pettis’ trial. I.C. § 35-
2
Respectively: dealing in cocaine, possession of cocaine, maintaining a common nuisance, and possession
of marijuana.
3
In the charging information, Count 6, one of the possession of cocaine charges, also included the wrong
date, but the trial court dismissed that charge on the State’s motion.
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34-1-5; Bennett, 5 N.E.3d at 514. Moreover, even if it were error to allow the
amendment, Pettis waived that issue when he did not move for a continuance
in conjunction with his objection. Wilson v. State, 931 N.E.2d 914, 918 (Ind. Ct.
App. 2010), trans. denied.
[9] Affirmed.
Kirsch, J., and Barnes, J., concur.
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