William E. Mays v. State of Indiana ( 2019 )

FILED
Mar 15 2019, 9:31 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill
Brooklyn, Indiana Attorney General
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
William E. Mays, March 15, 2019
Appellant-Petitioner, Court of Appeals Case No.
18A-PC-2071
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Mark D. Stoner,
Appellee-Respondent. Judge
The Honorable Jeffrey L. Marchal,
Magistrate
Trial Court Cause No.
49G06-1504-PC-14242
Najam, Judge.
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Statement of the Case
[1] William Mays1 appeals from the post-conviction court’s denial of his petition
for post-conviction relief. Mays presents a single issue for our review, namely,
whether the post-conviction court erred when it concluded that Mays did not
receive ineffective assistance of appellate counsel in his direct appeal. We hold
that Mays’ appellate counsel performed deficiently when she did not include in
the record on appeal a pretrial transcript relevant to the issues raised on appeal.
However, we also hold that Mays cannot establish that the result of his direct
appeal would have been different but for his appellate counsel’s deficient
performance. Accordingly, we affirm the post-conviction court’s denial of
Mays’ petition.
Facts and Procedural History
[2] The facts underlying Mays’ convictions for attempted murder, a Class A felony,
and unlawful possession of a firearm by a serious violent felon, a Class B
felony, were stated by this Court in his direct appeal:
Shortly before midnight on October 14, 2005, Stanley Flowers,
Jr. (“Flowers”) drove his blue Chevrolet Avalanche truck to the
Shadeland Court Apartments to meet Bobby Thompkins
(“Thompkins”), nicknamed “Forty,” who was driving a
burgundy Dodge Stratus and had Mays and another individual
nicknamed “Cuz” in his car. Tr. p. 55-56. Mays, Thompkins,
and Cuz got into Flowers’ truck, and Flowers drove to a liquor
1
The record on appeal contains various spellings for Mays’ name, but his post-conviction attorney
represents that “Mays” is “[t]he correct spelling.” Appellant’s Br. at 7 n.1. Thus, that is the spelling we use.
Court of Appeals of Indiana | Opinion 18A-PC-2071 | March 15, 2019 Page 2 of 22
store, where they purchased a pint of liquor and began drinking it
in the truck. Flowers then drove Mays, Thompkins, and Cuz to
a downtown Indianapolis nightclub called “The Government.”
Id. at 57. The four men drank some more liquor in the truck
before entering the nightclub around 1:30 a.m.
When the four men left the nightclub around closing time at 3:00
a.m., they heard gunshots in the alley behind the nightclub, and
then Mays pulled out a little chrome gun. No more gunshots
were fired, and Flowers drove the group back to the Shadeland
Court Apartments with Mays sitting in the front passenger seat,
Cuz sitting in the rear passenger seat, and Thompkins sitting in
the rear driver’s side seat. Flowers parked his truck in the
apartment’s parking lot, and the four men sat in the truck talking
and drinking. Mays, Thompkins, and Cuz also snorted cocaine.
As they were sitting in the truck, Mays and Flowers began to
argue, and Mays told Flowers that he was going to “take
[Flowers’] truck and take [his] stuff[.]” Id. at 62. When Flowers
told Mays that Mays was not going to take his truck, Mays
pulled out his pistol and shot Flowers in the right upper arm.
Flowers jumped out of his truck, and Mays shot Flowers again in
the arm. Flowers ran to a fence that was fifteen to twenty feet
away from his truck, and, as Flowers attempted to climb over the
fence, Mays shot Flowers in the back. Flowers got to the other
side of the fence, heard more shots being fired, and lay on the
ground pretending to be dead until he no longer heard any more
gunshots. Flowers then crawled along the fence line until he
encountered some construction workers working on a bridge.
One of the workers called police, and once the police arrived,
Flowers told one of the officers that “Will” shot him. Id. at 68,
132. Flowers was then taken to the hospital for treatment.
Leander Scott (“Scott”), who lived in the Shadeland Court
Apartments, returned home to the apartments around 3:40 a.m.
and noticed a maroon Stratus that looked like Thompkins’ car,
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with two or three guys inside, drive out of the apartment’s
parking lot. After Scott parked his car, he saw a blue truck,
which had the keys in the ignition and the two passenger doors
open with the windows down, parked in the parking lot. Scott
closed the truck’s windows and doors, locked the truck, left a
note on the truck indicating that “Maintenance has keys,” and
dropped the keys at the apartment’s office. Id. at 114.
A police evidence technician arrived at the Shadeland Court
Apartments later that morning and processed Flowers’ truck for
evidence. The technician was able to obtain a latent print from
the truck’s rear passenger window, and that print was later
identified as matching Mays’[] right index finger.
Flowers remained in the hospital for one week for treatment of
his “potentially life threatening” injuries. Id. at 174. A police
detective visited Flowers a few days after the shooting, and
Flowers told the detective that Mays shot him and
“immediately” identified Mays in a photo array. Id. at 278.
On October 27, 2005, the State charged Mays with Count I,
aggravated battery, a Class B felony; Count II, unlawful
possession of a firearm by a serious violent felon, a Class B
felony; Count III, battery as a Class C felony; and Count IV,
carrying a handgun without a license enhanced to a Class C
felony. The trial court set the omnibus date for December 23,
2005.
On December 27, 2005, Mays belatedly filed a Notice of Alibi
Defense, which alleged that he was at his girlfriend’s house on
the night of the alleged crimes. The trial court held a hearing and
permitted Mays to belatedly file his alibi notice. The trial court
vacated the January 9, 2006, trial date and set a pre-trial
conference for February 14, 2006.
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On February 13, 2006, the State filed a motion to amend the
charging information to add a count of attempted murder. In its
motion, the State acknowledged that the motion was being filed
after the omnibus date but asserted that the amendment did not
prejudice Mays’ substantial rights because it would not affect his
anticipated alibi defense. According to the State’s motion, it
originally discussed its intention to add an attempted murder
count with Mays’ attorney on the day that Mays filed his alibi
notice, but it agreed to delay its filing of the amended charge
pending plea negotiations with Mays under the original charges,
and Mays agreed that “although these negotiations started after
the omnibus date, this time during these negotiations would not
count against the State.” Appellant’s App. p. 48. In its motion
to amend, the State also noted that it contacted Mays’ attorney
prior to filing its motion to amend “to determine whether he
objects to th[e] motion” and that Mays’ counsel did “object to the
amended count.” Id. The following day, the trial court held the
pre-trial hearing and granted the State’s motion to amend the
charging information to add Count V, attempted murder, a Class
A felony. The record [on appeal] does not indicate that Mays
objected to the amendment during the pre-trial conference or
requested a continuance.
Mays v. State, No. 49A05-0609-CR-482, 2007 WL 2429254, at *1-2 (Ind. Ct.
App. Aug. 29, 2007) (footnotes omitted; some alterations in original), trans.
denied (“Mays I”). Following his April 2006 trial, the jury found Mays guilty of
several offenses, and the trial court entered judgment of conviction against
Mays for attempted murder, a Class A felony, and for unlawful possession of a
firearm by a serious violent felon, a Class B felony.
[3] Mays appealed his convictions. On direct appeal, he argued, in relevant part,
that the trial court erred under Indiana Code Section 35-34-1-5(b) (2005), which
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prohibited the State from amending the charging information later than thirty
days prior to the omnibus date in felony cases. In support of that argument,
Mays relied on our Supreme Court’s January 2007 decision in Fajardo v. State,
in which our Supreme Court had held that errors under that statute, when they
related to amendments “of substance,” were reversible errors without regard to
actual prejudice suffered by the defendant. 859 N.E.2d 1201, 1207-08 (Ind.
2007).
[4] However, we did not reach the merits of Mays’ Fajardo claim. Instead, we held
that Mays’ trial counsel had failed to preserve that issue for our review because
“the record before us,” namely, the CCS, “d[id] not indicate that Mays objected
to the amendment during the [February 14, 2006,] pre-trial conference on the
motion [to amend]” or that he had “requested a continuance” at that
conference. Mays I, 2007 WL 2429254, at *7 (citing Absher v. State, 866 N.E.2d
350, 356 (Ind. Ct. App. 2007)). We noted that the record on appeal “d[id] not
include a transcript of the February 14, 2006, pre-trial [conference].” Id. at *2
n.8. We also noted that Mays had made “no . . . allegation of fundamental
error” on appeal. Id. at *7 n.11. Accordingly, we rejected Mays’ argument and
affirmed his convictions.
[5] In May of 2015, Mays filed his petition for post-conviction relief, which he later
amended. In his amended petition, Mays asserted only that his appellate
counsel had rendered ineffective assistance “for failing to adequately present
Mays’ Fajardo claim on appeal, which resulted in the claim being waived.”
Appellant’s App. Vol. 2 at 27. At an ensuing evidentiary hearing on Mays’
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petition, the post-conviction court admitted into the record the transcript of the
February 14, 2006, pretrial conference. That six-page transcript unambiguously
demonstrated that Mays’ trial counsel had objected, vehemently, to the State’s
proffered amendment to the charging information. Ex. Vol. at 85-87.2
[6] Mays also called his appellate counsel as his only witness at the evidentiary
hearing. His appellate counsel testified as follows:
Q. . . . [A]s part of your . . . appellate representation, would you
review the transcript?
A. Yes.
***
Q. And you testified that somebody else [at the Marion County
Public Defender Agency] prepared the Notice of Appeal. . . .
Did that person always request that every hearing that was
handled in the case be transcribed?
A. No. That was never the practice.
Q. What was the usual practice?
A. The usual practice was to request trial, sentencing, and any
hearings on motions. And also, after reviewing the CCS, and
consulting with trial counsel, any additional hearings that were
deemed important.
2
Our pagination of the Exhibits Volume is based on the .pdf pagination.
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***
Q. If you recall, why did you not request to have the pretrial
hearing that was referenced in the Court of Appeals opinion
transcribed . . . ?
A. I don’t recall specifically. I believe I felt the issue had been
adequately preserved such that I could raise it.
Q. Knowing what the Court of Appeals did with the claim,
would you have done anything differently in this case?
A. Yes. Absolutely. I would have made an effort to retrieve the
recording or the transcript of that hearing.
Tr. at 4-6, 9.
[7] On August 7, 2018, the post-conviction court entered findings of fact and
conclusions of law in which the court denied Mays’ petition for post-conviction
relief. In relevant part, the court found and concluded as follows:
11. [In overruling Mays’ objection and permitting the State to
amend the charging information after the omnibus date, t]he trial
court found that the standard to be applied was whether [Mays’]
substantial rights were prejudiced by the late amendment.
12. Because the defense filed an alibi defense, the trial court
found that Mays’ substantial rights were not prejudiced by the
late amendment since the change would not impact Mays’
defense. The trial court also opined that it would be a more
difficult burden to prove the attempted murder count. The trial
court granted the State’s motion to amend over objection.
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13. No trial date was pending at the time of the pre-trial
conference. [Trial counsel] advised the trial court that discovery
was ongoing and, again, noted that certain depositions [were
pending].
14. The parties [then] agreed to a jury trial date of April 24,
2006 . . . .
***
46. Had the record of the February 14, 2006[,] pre-trial
conference been included in the appellate record, it would have
established that [trial counsel] did in fact object to the
amendment and preserved his objection for appeal.
47. However, the record from the pre-trial conference along with
other evidence shows that the amendment was one of form, not
substance[, under Fajardo]. Here, [trial counsel] filed a pre-trial
notice of alibi and pursued an alibi defense at trial. As the alibi
defense would have been equally available to [Mays] after the
amended charge was added, and as [Mays’] evidence would have
applied equally to the information in either form, the amendment
was one of form and not substance and, thus, permissible.
***
49. . . . [T]he Court concludes that [Mays] has not demonstrated
a reasonable probability that, but for counsel’s errors, the result
of the direct appeal would have been different.
Appellant’s App. Vol. 2 at 76, 82 (citations omitted). This appeal ensued.
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Discussion and Decision
Standard of Review
[8] Mays appeals the post-conviction court’s denial of his petition for post-
conviction relief. Our standard of review in such appeals is clear:
“The petitioner in a post-conviction proceeding bears the burden
of establishing grounds for relief by a preponderance of the
evidence.” Campbell v. State, 19 N.E.3d 271, 273-74 (Ind. 2014).
“When appealing the denial of post-conviction relief, the
petitioner stands in the position of one appealing from a negative
judgment.” Id. at 274. In order to prevail on an appeal from the
denial of post-conviction relief, a petitioner must show that the
evidence leads unerringly and unmistakably to a conclusion
opposite that reached by the post-conviction court. Weatherford v.
State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the post-
conviction court in this case entered findings of fact and
conclusions of law in accordance with Indiana Post-Conviction
Rule 1(6). Although we do not defer to the post-conviction
court’s legal conclusions, “[a] post-conviction court’s findings
and judgment will be reversed only upon a showing of clear
error—that which leaves us with a definite and firm conviction
that a mistake has been made.” Ben-Yisrayl v. State, 729 N.E.2d
102, 106 (Ind. 2000) (internal quotation omitted).
Humphrey v. State, 73 N.E.3d 677, 681-82 (Ind. 2017) (alteration original to
Humphrey).
Ineffective Assistance of Appellate Counsel Claims
[9] Mays specifically asserts that the post-conviction court erred when it concluded
that he had not received ineffective assistance from his appellate counsel. In
general:
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When evaluating an ineffective assistance of counsel claim, we
apply the two-part test articulated in Strickland v. Washington, 466
U.S. 668 (1984). See Helton v. State, 907 N.E.2d 1020, 1023 (Ind.
2009). To satisfy the first prong, “the defendant must show
deficient performance: representation that fell below an objective
standard of reasonableness, committing errors so serious that the
defendant did not have the ‘counsel’ guaranteed by the Sixth
Amendment.” McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002)
(citing Strickland, 466 U.S. at 687-88). To satisfy the second
prong, “the defendant must show prejudice: a reasonable
probability (i.e. a probability sufficient to undermine confidence
in the outcome) that, but for counsel’s errors, the result of the
proceeding would have been different.” Id. (citing Strickland, 466
U.S. at 694).
Id. at 682. “The standard for gauging appellate counsel’s performance is the
same as that for trial counsel.” Weisheit v. State, 109 N.E.3d 978, 992 (Ind.
2018). “Claims of inadequate presentation of certain issues . . . are the most
difficult for convicts to advance and reviewing tribunals to support.” Id.
(quotation marks omitted).
Deficient Performance
[10] Our first inquiry is whether Mays’ appellate counsel performed deficiently by
providing “representation that fell below an objective standard of
reasonableness.” Humphrey, 73 N.E.3d at 682 (quoting McCary, 761 N.E.2d at
392). Although the post-conviction court did not explicitly address this issue,
we have no qualms in holding that Mays met his burden under this prong of the
Strickland analysis.
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[11] Mays’ appellate counsel attempted to challenge the State’s amendment of the
charging information after the omnibus date. It was well-settled law at the time
of Mays’ direct appeal that such issues could not be raised for the first time on
appeal; rather, to preserve the issue for appellate review, trial counsel, at a
minimum, needed to object in the trial court to the State’s proposed
amendment. E.g., Haak v. State, 695 N.E.2d 944, 951 n.5 (Ind. 1998).
Accordingly, to show that Mays was entitled to appellate review of this issue,
Mays’ appellate counsel had an affirmative duty to include in the record on
appeal those portions of the trial court proceedings that demonstrated his trial
counsel’s preservation of the issue. See Ind. Appellate Rule 9(F)(5); Wilson v.
State, 94 N.E.3d 312, 321 (Ind. Ct. App 2018). She failed to do so, and,
because of that error, we resolved this issue on the basis of Mays’ apparent
failure to preserve it. Mays I, 2007 WL 2429254, at *7.
[12] The failure of Mays’ appellate counsel to provide us with an adequate record to
permit meaningful review was objectively unreasonable.3 Cf. Wilhoite v. State, 7
N.E.3d 350, 354-55 (Ind. Ct. App. 2014) (holding that the appellant had failed
to meet his burden to provide us “with an adequate record to permit meaningful
review”). Moreover, although she testified to the post-conviction court that it
was the “usual practice” of the Marion County Public Defender Agency to not
request transcripts of pretrial hearings, Tr. at 4-6, such practice did not relieve
Mays’ appellate counsel of her duty to request a particular pretrial transcript
3
We need not consider Mays’ alternative argument that his appellate counsel had performed deficiently
when she did not raise the Fajardo issue as an allegation of fundamental error.
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when the issues raised on appeal required that transcript. See Wilson, 94 N.E.3d
at 321. We hold that Mays has satisfied the first prong under Strickland.
Prejudice
[13] We next turn to Strickland’s second prong: whether Mays has shown a
reasonable probability that the result of his direct appeal would have been
different but for his appellate counsel’s deficient performance. In other words,
we must consider whether, had we reached the merits of Mays’ issue in his
direct appeal, we would have been likely to reverse Mays’ conviction for
attempted murder under Fajardo. Mays cannot meet his burden to show that
such an outcome would have been reasonably probable.
[14] As an initial matter, the transcript of the February 14, 2006, pretrial conference
shows that May’s trial counsel did not request a continuance after the trial court
had overruled his objection to the State’s amendment to the charging
information. As such, the State argues that, had that transcript been included in
the original record on appeal, the outcome of Mays’ direct appeal would have
been exactly the same as it was, namely, a failure to preserve the issue for our
review. It is true that there was ample case law at the time of Mays’ direct
appeal that stated that, when an objection to the State’s amendment to a
charging information is overruled, the defendant must then seek a continuance
to preserve appellate review of the amendment. E.g., Haak, 695 N.E.2d at 951
n.5. The purpose of requesting such a continuance is to give the defendant the
opportunity to prepare a defense to the new charges. See id.
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[15] However, the transcript of the February 14, 2006, pretrial conference, which,
again, our Court did not have before it in Mays’ direct appeal, makes clear that
no trial date had yet been set when Mays’ trial counsel objected to the State’s
proposed amendment and the trial court overruled that objection. Indeed, it
was not until after the issue of the State’s amendment had been resolved by the
trial court that a trial date was then set by agreement of the parties. It would
have been an empty gesture for Mays’ trial counsel to request the continuance
of a trial date that did not exist at the time the trial court overruled his
objection. Preservation of issues for appellate review might require futile
gestures, but it does not require empty ones. Had the record been properly
presented to us on direct appeal, we would not have resolved Mays’ Fajardo
issue on the basis of waiver for failing to request a continuance. See, e.g., id.
(reaching the merits of the defendant’s challenge to the amendment where “it is
unclear whether he asked for a continuance”).
[16] We thus turn to the merits of Mays’ Fajardo claim. In Fajardo, our Supreme
Court, discussing when the State may amend a charging information under the
version of Indiana Code Section 35-34-1-5(b) in effect at the time, delineated
between amendments of form and amendments of substance:
an amendment is one of form, not substance, if both (a) a defense
under the original information would be equally available after
the amendment, and (b) the accused’s evidence would apply
equally to the information in either form. And an amendment is
one of substance only if it is essential to making a valid charge of
the crime.
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859 N.E.2d at 1207. Our Supreme Court held that amendments of substance
may not be made after thirty days prior to the omnibus date pursuant to Indiana
Code Section 35-34-1-5(b). Id. at 1208. And the Court held that, on the facts
before it, “charging a new separate offense constituted an amendment to
matters of substance” in part because “charg[ing] the commission of a separate
crime . . . is unquestionably essential to making a valid charge of the crime.”
Id.
[17] We have previously explained the holding of Fajardo and the law that both
preceded and followed that opinion as follows:
For over twenty years prior to Fajardo, case law regularly
permitted [charging information] amendments related to matters
of substance as long as the substantial rights of the defendant
were not prejudiced, regardless of whether the amendments were
untimely [relative to the omnibus date] under I.C. § 35-34-1-5(b).
See Fajardo v. State, 859 N.E.2d 1201 (listing numerous Supreme
Court and Court of Appeals cases). On January 16, 2007, our
Supreme Court changed course and held that the statute clearly
required amendments of substance to be made not less than thirty
days before the omnibus date, even if a defendant’s substantial
rights are not prejudiced by the amendment. The legislature
immediately responded to Fajardo by amending the statute,
effective May 8, 2007, to reflect the pre-Fajardo law (i.e.,
amendments of substance permitted anytime before trial so long
as the defendant’s substantial rights are not prejudiced). Thus,
Fajardo was superseded by statute in less than four months. This
prompt return to pre-Fajardo law indicates urgency in the
legislature’s desire to negate the effects of Fajardo.
Hurst v. State, 890 N.E.2d 88, 95 (Ind. Ct. App. 2008), trans. denied.
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[18] Here, the post-conviction court found that, had our Court reached the merits of
Mays’ Fajardo claim on direct appeal, we would have held that the State’s
amendment was one of form and not one of substance under Fajardo. The post-
conviction court’s finding is clearly erroneous. The State here sought to add an
entirely new charge to the charging information by way of an untimely
amendment. As it was in Fajardo, such an amendment is patently one of
substance as “charg[ing] the commission of a separate crime . . . is
unquestionably essential to making a valid charge of the crime.” 859 N.E.2d at
1208.
[19] Nonetheless, we would not have reversed Mays’ convictions in Mays I because
Fajardo was no longer good law. Instead of applying Fajardo, we would have
held that our legislature’s quick amendment to Indiana Code Section 35-34-1-
5(b) superseded and negated Fajardo’s holding. See Hurst, 890 N.E.2d at 95.
Although the retroactivity of the amended statute initially resulted in differing
opinions from our Court,4 we agree with the ensuing summary of this issue as
stated by another panel of this Court in Gomez v. State:
In Ramon [v. State, 888 N.E.2d 244, 252 (Ind. Ct. App. 2008)],
this court held that the application of the revised Indiana Code
4
For example, in Fields v. State, 888 N.E.2d 304, 309-10 (Ind. Ct. App. 2008), State v. O’Grady, 876 N.E.2d
763, 765 n.1 (Ind. Ct. App. 2007), and Roush v. State, 875 N.E.2d 801, 806 n.2 (Ind. Ct. App. 2007), we held
that the version of the statute in effect at the time the defendant committed his offenses controlled. In Fuller
v. State, 875 N.E.2d 326, 330 n.2 (Ind. Ct. App. 2007), trans. denied, and Laney v. State, 868 N.E.2d 561, 565
n.1 (Ind. Ct. App. 2007), trans. denied, we held that the version of the statute in effect at the time of the
defendant’s trial controlled. However, the initial lack of clarity regarding the retroactivity of the amended
statute does not establish Strickland prejudice; Mays is not entitled to “a windfall as a result of the application
of an incorrect legal principle” at the time of his direct appeal. Lafler v. Cooper, 566 U.S. 156, 167 (2012).
Court of Appeals of Indiana | Opinion 18A-PC-2071 | March 15, 2019 Page 16 of 22
section 35-34-1-5 did not violate the ex post facto provisions of the
Indiana and United States Constitutions because the statutory
amendment was procedural. In reaching this determination, we
concluded that the revised statute defined the procedures the
State must follow in order to amend a charging information and
that the revision did not create any new crimes, change the
elements of any crime, or alter any sentencing statutes. Id. In
Hurst[, 890 N.E.2d at 95], this court found that strong and
compelling reasons existed favoring retroactive application of the
revised version of Indiana Code section 35-34-1-5. We reasoned
that prior to Fajardo, case law regularly permitted amendments to
an indictment or charging information related to matters of
substance as long as the substantial rights of the defendant were
not prejudiced, regardless of whether the amendments were
timely under Indiana Code section 35-34-1-5(b). Hurst, 890
N.E.2d at 95. Further, within a few months after our Supreme
Court decided Fajardo, the legislature quickly amended the
statute to reflect the law before Fajardo, and this court concluded
that this prompt return to pre-Fajardo law indicated an urgency to
negate the effects of that case. Id. Based upon this, we
concluded that it was the clear intent of the legislature to have the
amended statute apply retroactively. Id.
Therefore, based on the holdings of both Hurst and Ramon, this
court has found that the legislative revisions to Indiana Code
section 35-34-1-5 were procedural and did not implicate the ex
post facto provisions of the Indiana and United States
Constitutions. The amended version of the statute may
accordingly be applied retroactively, and was applicable in the
present case, allowing the State to amend its charging
information to add the count of murder approximately ten
months before the trial.
907 N.E.2d 607, 610-11 (Ind. Ct. App. 2009), trans. denied; see Brown v. State,
912 N.E.2d 881, 887-90 (Ind. Ct. App. 2009), trans. denied; see also Barnett v.
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State, 83 N.E.3d 93, 100-01 (Ind. Ct. App. 2017), trans. denied. Further, despite
Mays’ assertion to the contrary, our holdings in Ramon, Hurst, Gomez, Brown
and other cases that the amended statute applied retroactively have not been
limited to the dates of the defendants’ trials. Rather, our holdings have been
unlimited in their retroactive reach based on our legislature’s “clear intent” to
“negate” Fajardo. Gomez, 907 N.E.2d 610-11; Hurst, 890 N.E.2d at 95.
[20] The trial court in Mays’ case, relying on the pre-Fajardo case law available to it
at the time, analyzed the permissibility of the State’s proposed amendment to
the charging information based on whether that proposed amendment would
prejudice the substantial rights of the defendant. See Hurst, 890 N.E.2d at 95.
That same test was nearly immediately reinstated to Indiana Code Section 35-
34-1-5(b) by our legislature’s post-Fajardo statutory amendment. Id. And we
decided Mays’ direct appeal more than three months after the effective date of
that statutory amendment. See Mays I, 2007 WL 2429254, at *7 n.9. Thus, had
we reached the merits of Mays’ Fajardo claim in his direct appeal, the correct
resolution would have been to apply the amended statute, not Fajardo, which in
turn would have required this Court to consider, as the trial court did here,
whether the State’s untimely amendment to the charging information
prejudiced Mays’ substantial rights. E.g., Gomez, 907 N.E.2d at 611.
[21] And we would have held that the amendment to the charging information did
not prejudice Mays’ substantial rights. “A defendant’s substantial rights include
a right to sufficient notice and an opportunity to be heard regarding the charge;
and, if the amendment does not affect any particular defense or change the
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positions of either of the parties, it does not violate these rights.” Id. (quoting
Ramon, 888 N.E.2d at 252). “Ultimately, the question is whether the defendant
had a reasonable opportunity to prepare for and defend against the charges.”
Id. (quoting Ramon, 888 N.E.2d at 252).
[22] It is not disputed that Mays had notice of the State’s anticipated amendment to
the charging information long before the State formally requested the
amendment. Mays I, 2007 WL 2429254, at *7. It is also not disputed that
Mays’ ensuing trial date following the State’s amendment was set with his
agreement. And it is not disputed that Mays’ alibi defense to the State’s charges
remained the same before and after the amendment. In short, nothing about
the State’s amendment prejudiced Mays’ substantial rights. Thus, had we
reached this issue in Mays I, we would have affirmed. Accordingly, we agree
with the post-conviction court that Mays cannot show that he was prejudiced
by his appellate counsel’s deficient performance.
Recent Federal Case Law
[23] Mays has submitted, post-briefing, a notice of two additional authorities,
namely, a recent opinion from the United States Court of Appeals for the
Seventh Circuit in Jones v. Zatecky, ___ F.3d ___, No. 17-2606, 2019 WL 966601
(7th Cir. Feb. 28, 2019), and that court’s prior opinion in Shaw v. Wilson, 721
F.3d 908, 911 (7th Cir. 2013). In Shaw, the defendant’s appellate attorney
eschewed challenging on appeal whether the trial court had erred in permitting
the State to amend the charging information and, instead, raised only an issue
of sufficiency of the evidence to support the convictions. On habeas review, the
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Seventh Circuit held that the issue relating to the amendment of the charging
information was clearly stronger than the sufficiency issue. Shaw, 721 F.3d at
915-18. The Seventh Circuit further held that counsel’s deficient performance
entitled the defendant to a new direct appeal. Id. at 919-20. In reaching those
holdings, the Seventh Circuit expressly declined to consider whether the
amended version of Indiana Code Section 35-34-1-5(b) applied retroactively as
“the Indiana appellate courts [would] be free to consider” such issues in the
defendant’s new direct appeal. Id. at 919.
[24] Nevertheless, in determining that the issue relating to the charging information
was clearly stronger than the sufficiency issue, in Shaw the Seventh Circuit
declared that the Indiana Supreme Court’s 1998 opinion in Haak established
“the same rule” announced in Fajardo. Id. at 917. However, when the State
argued that “the Indiana Supreme Court’s reading of Section 35-34-1-5 in
Fajardo sharply diverged from that court’s prior understanding of the statute in
Haak and thus was a radical change in law,” which argument is consistent with
our Court’s precedent, see Hurst, 890 N.E.2d at 95; Townsend v. State, 753
N.E.2d 88, 94 (Ind. Ct. App. 2001), the Seventh Circuit responded that “that
line of argument implicitly draws us into the content of state law, and we have
emphasized that this is forbidden territory,” Shaw, 721 F.3d at 916. Thus, the
Seventh Circuit’s ultimate conclusion here was merely that the defendant’s
appellate counsel had a better argument on direct appeal in challenging the
State’s untimely amendment to the charging information than in presenting
only an “undeniably frivolous” sufficiency issue. Id. at 917.
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[25] In Jones, the defendant’s arrest and prosecution occurred after Haak but before
Fajardo. When the State sought an untimely amendment to the charging
information, the defendant’s trial counsel failed to object. On direct appeal,
which was decided by our Court more than six months after the effective date
of the statutory amendment to Indiana Code Section 35-34-1-5(b), we held that
trial counsel’s failure to object precluded appellate review. See Jones, 2019 WL
966601, at *2. On habeas review, the Seventh Circuit held that, had the
defendant’s trial counsel objected based on Haak, the defendant would have
been entitled to the same relief that the Indiana Supreme Court granted the
defendant in Fajardo. Id. at *2 & n.2. However, in reaching that decision, the
Seventh Circuit stated that our legislature’s post-Fajardo statutory amendment
was “not retroactive and thus has no effect on [the defendant’s] case.” Id. at *1
n.1.
[26] We do not find Shaw or Jones persuasive. First, we note that Mays’ post-
conviction attorney has framed the issues in this appeal around Fajardo, not
Haak, which, again, is consistent with our Court’s precedent. See Hurst, 890
N.E.2d at 95; Townsend, 753 N.E.2d at 94. Second, the deficient performance
in Mays’ direct appeal resulted from a failure to adequately present the issue for
our review, not from a failure to raise a clearly stronger argument. Thus, Shaw
and its reasoning are inapposite to the instant appeal. Third, Shaw expressly did
not reach the issue of the retroactive effect of the statutory amendment, and
while Jones declared that the statutory amendment was not retroactive, as
explained above that declaration is not consistent with our Court’s precedent.
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See Brown, 912 N.E.2d at 887-90; Gomez, 907 N.E.2d at 610-11; Hurst, 890
N.E.2d at 95; Ramon, 888 N.E.2d at 252. Thus, notwithstanding the federal
authorities cited by Mays, we hold that the statutory amendment would have
applied to Mays on direct appeal, and, as such, we affirm the post-conviction
court’s denial of Mays’ petition for post-conviction relief.
Conclusion
[27] In sum, had Mays’ appellate counsel properly presented the issue of the State’s
untimely amendment to the charging information on direct appeal, we would
have held that the statutory amendment applied and, therefore, that the trial
court did not commit reversible error in permitting the amendment.
Accordingly, Mays cannot show that he was prejudiced by his appellate
counsel’s deficient performance, and we affirm the post-conviction court’s
denial of Mays’ petition for post-conviction relief.
[28] Affirmed.
Pyle, J., and Altice, J., concur.
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