Jon Southwood v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Feb 08 2019, 8:17 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Andrew Bernlohr Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jon Southwood, February 8, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1245
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Steven J. Rubick,
Appellee-Plaintiff. Judge Pro Tempore
Trial Court Cause No.
49G01-1609-F5-37854
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1245 | February 8, 2019 Page 1 of 6
STATEMENT OF THE CASE
[1] Appellant-Defendant, Jon Southwood (Southwood), appeals his adjudication as
a habitual offender, Ind. Code § 35-50-2-8.
[2] We affirm.
ISSUE
[3] Southwood presents one issue on appeal, which we restate as: Whether the
trial court abused its discretion by allowing the State to file an untimely habitual
offender enhancement charge against Southwood.
FACTS AND PROCEDURAL HISTORY
[4] On September 27, 2016, the State filed an Information, charging Southwood
with Level 5 felony robbery. About a month later, on November 28, 2016, the
State filed a Notice of Intent to File Habitual Offender Enhancement, indicating
that it would file a habitual offender charge “if plea negotiations” were
“unsuccessful.” (Appellant’s App. Vol. II, p. 54). By January of 2018, no plea
agreement had been reached. Southwood thereafter waived his right to a jury
trial.
[5] A bench trial was then scheduled for April 13, 2018. The day before
Southwood’s trial, on April 12, 2018, the State filed a habitual offender charge,
alleging that Southwood had accumulated two prior unrelated felony
convictions—a Class C felony robbery in 2006 and a Class D felony possession
of paraphernalia in 2012. Southwood objected, arguing that the State had failed
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to show “good cause” for the belated filing. (Appellant’s App. Vol. II, p. 79).
At the start of his bench trial, the trial court denied Southwood’s motion after
finding that Southwood was aware that the State would file such a charge in
November 2016.
[6] At the conclusion of the first phase, the trial court found Southwood guilty of
the Level 5 felony robbery charge. During the second phase, the trial court
found that Southwood was an habitual offender. On May 1, 2018, the trial
court conducted a sentencing hearing and sentenced Southwood to a term of
two years for the robbery conviction and enhanced that sentence by two years
due to Southwood’s habitual offender status.
[7] Southwood now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[8] Southwood argues that the trial court abused its discretion when it allowed the
State to file a belated habitual offender charge against him. Indiana Code
section 35-34-l-5(e) provides:
An amendment of an indictment or information to include a
habitual offender charge under [I.C. § 35-50-8] must be made at
least thirty (30) days before the commencement of trial.
However, upon a showing of good cause, the court may permit
the filing of a habitual offender charge at any time before the
commencement of the trial if the amendment does not prejudice
the substantial rights of the defendant. If the court permits the
filing of a habitual offender charge less than thirty (30) days
before the commencement of trial, the court shall grant a
continuance at the request of the:
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(1) state, for good cause shown; or
(2) defendant, for any reason.
[9] Here, the habitual offender charge was filed one day before trial and was
therefore untimely. Although tardy, we cannot agree with Southwood that the
State failed to show good cause for the filing.
[10] We have previously noted that the purpose of Indiana Code section 35-34-1-5(e)
is to allow a defendant sufficient time to prepare a defense for an habitual
offender charge. Land v. State, 802 N.E.2d 45, 53 (Ind. Ct. App. 2004), trans.
denied. Towards that end, section 35-34-1-5(e) also provides that the trial court
may permit the filing of an habitual offender charge at any time before the
commencement of trial “upon a showing of good cause.” Also, a defendant
must show that he or she was prejudiced by the belated filing. Jackson v. State,
938 N.E.2d 29, 39 (Ind. Ct. App. 2010), trans. denied.
[11] Once a trial court finds good cause, we review that decision for an abuse of
discretion. Id. An abuse of discretion occurs only where the decision is clearly
against the logic and effect of the facts and circumstances. Id. The trial court is
not required to enter a specific finding concerning good cause, and we will
determine that the trial court impliedly found good cause if it permits the State
to file an habitual offender Count. Jackson, 938 N.E.2d at 39.
[12] Southwood was charged for the Level 5 felony robbery on September 27, 2016,
and a month later, on November 28, 2016, the State filed its Notice of Intent to
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1245 | February 8, 2019 Page 4 of 6
File Habitual Offender Enhancement charge against Southwood if a plea deal
was not successful. By January 2018, no plea had been reached by the parties.
Southwood thereafter waived his right to a jury trial and a bench trial was
scheduled. A day before his bench trial, on April 12, 2018, the State filed the
habitual offender charge. At the start of his bench trial, Southwood again
objected to the State’s untimely filing, but the trial court noted that Southwood
was aware that the State would make such a filing in November 2016 if
Southwood had not accepted the State’s plea offer. In Land we noted that
evidence of ongoing plea negotiations may constitute good cause for a belated
habitual offender filing. Land, 802 N.E.2d at 53. Thus, we conclude that there
was good cause for the belated filing. See also Williams v. State, 735 N.E.2d 785,
789 (Ind. 2000) (finding good cause where State and defendant were involved in
plea negotiations “up until the date the habitual offender information was
filed”).
[13] Moreover, Southwood does not establish that he was prejudiced as a result of
the belated filing. See Jackson, 938 N.E.2d at 39. The State withheld the filing
of the habitual offender charge due to the plea negotiations. Southwood had
been on notice for an entire year that the habitual offender charge would
possibly be filed, and Southwood does not argue that this was not adequate
time to allow him to prepare his defense.
[14] Based on the foregoing, we conclude that the trial court did not abuse its
discretion when it found that the State had demonstrated good cause for its late
filing of the habitual offender charge.
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CONCLUSION
[15] In sum, we conclude that the trial court did not abuse its discretion when it
allowed the State to belatedly file the habitual offender charge against
Southwood.
[16] Affirmed.
[17] Kirsch, J. and Robb, J. concur
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