David L. Johnson, Jr. v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
FILED
court except for the purpose of establishing Jul 13 2017, 5:42 am
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Stephen T. Owens Curtis T. Hill, Jr.
Public Defender of Indiana Attorney General of Indiana
Jonathan O. Chenoweth Chandra K. Hein
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
David L. Johnson, Jr., July 13, 2017
Appellant-Defendant, Court of Appeals Case No.
82A01-1611-PC-2460
v. Appeal from the Vanderburgh
Superior Court
State of Indiana, The Honorable Mary Margaret
Appellee-Plaintiff Lloyd, Judge
Trial Court Cause No.
82D03-1308-PC-9
Altice, Judge.
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Case Summary
[1] David L. Johnson, Jr., appeals the denial of his petition for post-conviction
relief. He argues that the post-conviction court erroneously determined that he
did not receive ineffective assistance of appellate counsel.
[2] We affirm.
Facts & Procedural History
[3] The underlying facts, as summarized in Johnson’s direct appeal, are as follows:
A.J. was born to Johnson and Lori Record in September of 2008.
On January 12, 2009, Johnson attended a voluntary counseling
session with a social worker. At that session, Johnson filled out
an assessment in which he expressed concern that he might
become angry and hurt A.J., who was with him. Personnel at
the session noticed a bruise on A.J.’s cheek and called child
protective services. The case manager then met with Johnson
and Lori, who stated that A.J. had caused the bruise by pinching
her own cheek. The case manager requested that A.J. be seen by
a physician and have x-rays taken. Johnson and Lori complied,
and the x-rays revealed no injuries.
On February 5, Lori went to sleep and left Johnson with A.J.
Johnson fed A.J. and then went to bed. About fifteen minutes
later, Johnson got up to get a drink, and he noticed that A.J. was
no longer breathing and had turned purple in color. Johnson
moved A.J. to the couch and attempted CPR for about two
minutes before waking Lori and calling 911.
Upon their arrival, paramedics intubated A.J. and were able to
restore a pulse. They then rushed A.J. to the hospital. The
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treating emergency medical physician noticed that A.J. was
hypothermic, with a temperature of ninety-four degrees,
indicating a lack of heartbeat or respiration for one to three
hours. A.J. had small abrasions on her neck, scratches on her
chin, and a knot on the right side of her head by her hairline.
A.J. was diagnosed as brain dead, and she died on February 9.
The radiologist who had originally reviewed A.J.’s January 15 x-
rays re-evaluated them. Upon reconsideration, he noticed a non-
displaced fracture of the right clavicle. He also reviewed x-rays
taken of A.J. when she arrived at the emergency room on
February 5. According to those scans, A.J. had suffered a
fractured humerus and a tibia injury. The subsequent autopsy
report revealed evidence of multiple blunt force trauma to A.J.’s
head and face; swelling around her eyes; a torn frenulum; a
laceration to her spleen; hemorrhages of the liver; subdural
hematomas in the back of A.J.’s head; and a brain herniation. In
light of those injuries, the coroner concluded that A.J. had died
of child abuse and was the victim of homicide.
Johnson v. State, 959 N.E.2d 334, 336 (Ind. Ct. App. 2011), trans. denied.
[4] On April 7, 2009, the State charged Johnson with class A felony neglect of a
dependent resulting in death. On July 12, 2010, the State filed an amended
information, including a second charge of class A felony neglect of a dependent
resulting in death:
[B]eginning on or about September 24, 2008, and continuing
until February 5, 2009, David Johnson, a person being at least 18
years of age…, while having the care of a dependent, [A.J.],
because of a legal obligation, did knowingly place [A.J.] in
situations of abuse and violent behavior that included striking of
[A.J.] and the eventual death of said dependent, a child under the
age of 14….
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Direct Appeal Appendix at 521. The State prosecuted Johnson only on this
second count.
[5] Johnson’s case proceeded to a jury trial. At trial, the State introduced evidence
that from the time of her birth, A.J. had lived with and been in the care of her
mother and Johnson; that when Johnson called 911, he referred to A.J. as his
daughter; that Johnson had referred to A.J. as his daughter when speaking with
a police detective; and that Johnson’s father also referred to A.J. as Johnson’s
daughter. But Johnson and A.J.’s mother were not married, and the State
offered no evidence of legal paternity.
[6] At the close of the State’s case-in-chief, trial counsel moved for judgment on the
evidence, arguing that the State had failed to prove that Johnson had a legal
obligation to A.J. because it had not established that he was A.J.’s father. The
State disagreed, arguing that it had proved that he was A.J.’s father, but also
moved to amend the charging information to conform to the evidence so that,
in addition to alleging that Johnson had a legal obligation to care for A.J., it
alleged he had also voluntarily assumed an obligation to care for A.J. Trial
counsel objected, arguing that the proposed amendment was one of substance
rather than form and, therefore, impermissible. The trial court found that the
State’s amendment was one of form, not substance, and granted the motion to
amend, noting that it was doing so over Johnson’s objection.
[7] The jury found Johnson guilty as charged of the second count, and the trial
court later sentenced him to forty years in prison. On direct appeal, appellate
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counsel raised three issues: (1) whether the trial court abused its discretion
when it refused to give two lesser-included instructions; (2) whether certain
testimony was inadmissible prejudicial character evidence; and (3) whether the
State’s decision to file the second count amounted to prosecutorial
vindictiveness. This court affirmed, and our Supreme Court denied transfer.
[8] On August 9, 2013, Johnson filed a petition for post-conviction relief, which he
later amended. Relevant for purposes of this appeal is his claim that appellate
counsel was ineffective for failing to argue on direct appeal that the trial court
should have denied the State’s motion to amend the charging information after
the jury trial had already commenced. On May 27, 2016, the post-conviction
court held an evidentiary hearing on Johnson’s petition, and on October 6,
2016, the post-conviction court issued findings of fact and conclusions of law
denying relief. Johnson now appeals.
Standard of Review
[9] In post-conviction proceedings, the petitioner bears the burden of proving
grounds for relief by a preponderance of the evidence. Ind. Post-Conviction
Rule 1(5). The petitioner, on appeal, faces a “rigorous standard of review.”
Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001). He must show that the
evidence leads unerringly and unmistakably to a conclusion opposite to that
reached by the post-conviction court. Gulzar v. State, 971 N.E.2d 1258, 1260
(Ind. Ct. App. 2012), trans. denied. Further, where the post-conviction court has
entered findings of fact and conclusions of law, like in this case, we will not
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defer to its legal conclusion but will reverse its findings and judgment 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).
[10] The standard of review for claims of ineffective assistance of appellate counsel
is the same as for trial counsel in that the petitioner must show counsel was
deficient in his or her performance and that the deficiency resulted in prejudice.
Hollowell v. State, 19 N.E.3d 263, 269 (Ind. 2014). More specifically, the
petitioner must establish: “(1) that appellate counsel’s performance failed to
meet an objective standard of reasonableness under prevailing professional
norms at the time of trial; and (2) that the deficient performance constituted a
‘breakdown in the adversarial process that rendered the result of the proceeding
fundamentally unfair or unreliable.’” Taylor v. State, 717 N.E.2d 90, 94 (Ind.
1999).
[11] “Ineffectiveness is rarely found when the issue is failure to raise a claim on
direct appeal.” Id. The decision as to what issues to raise on appeal is one of
the most important strategic decisions made by appellate counsel, and we give
considerable deference to those decisions. Id. To succeed on such a claim, the
petitioner must show that the unraised issue was significant, obvious, and
clearly stronger than the issues that were presented on direct appeal. Singleton v.
State, 889 N.E.2d 35, 41 (Ind. Ct. App. 2008). “Appellate counsel is not
ineffective for failing to raise issues that are unlikely to succeed.” Id.
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Discussion & Decision
[12] Johnson contends that counsel was ineffective for failing to argue on direct
appeal that the trial court erred in allowing an amendment to the charging
information after the trial had already commenced. He claims the amendment
was one of substance and therefore barred by Ind. Code § 35-34-1-5.
[13] The State may amend a charging information “at any time…in respect to any
defect, imperfection, or omission in form,” so long as doing so does not
prejudice the defendant’s “substantial rights.” I.C. § 35-34-1-5(c). Once the
trial has begun, however, the State may not amend the information “in matters
of substance.” I.C. § 35-34-1-5(b). 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.” Fields v.
State, 888 N.E.2d 304, 310 (Ind. Ct. App. 2008). “Ultimately, the question is
whether the defendant had a reasonable opportunity to prepare for and defend
against the charges.” Erkins v. State, 13 N.E.3d 400, 405-06 (Ind. 2014).
[14] Relevant here, the neglect of a dependent statute provides: “A person having
the care of a dependent, whether assumed voluntarily or because of a legal
obligation, who knowingly…places the dependent in a situation that endangers
the dependent’s life or health…commits neglect of a dependent”. Ind. Code §
35-46-1-4(a). When the State originally filed the second count, it alleged in
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relevant part that Johnson had the care of A.J. “because of a legal obligation”.
Direct Appeal Appendix at 521. During trial, the State was permitted to amend
the charge to state that Johnson had the care of A.J. “whether assumed
voluntarily or because of a legal obligation”. Id. at 336.
[15] Johnson claims that the amendment was one of substance because one of his
defenses to the original charge was not equally available after the amendment.
He notes that the State failed to present any scientific evidence of paternity,
such as DNA testing, and he planned to defend against the charge based on the
lack of evidence establishing his legal obligation to care for A.J. Johnson
asserts that the amendment “demoted the issue [of paternity] from dispositive to
irrelevant.” Appellant’s Brief at 16.
[16] On the contrary, the issue of paternity was never dispositive. As set out above,
the neglect statute does not mandate that the defendant be a parent of the child
but rather the statute provides that it is sufficient that the defendant voluntarily
assumed caring for the child. Kellogg v. State, 636 N.E.2d 1262, 1264 (Ind. Ct.
App. 1994) (“Proof that the passenger in Kellogg’s car was his child was not an
element of the State’s case for the offense of neglect of a dependent.”). In other
words, the State is simply required to establish that the dependent was in the
defendant’s care – a fact that could not reasonably be disputed in this
case. Whether a defendant’s care of a child is shown by legal obligation or
voluntary assumption is of no moment because these are not essential elements
of the offense. Accordingly, Johnson could not have defended against the
original charge based on the State failing to establish paternity. See id.
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[17] The amendment did not affect any of Johnson’s legitimate defenses and his
evidence applied equally to the information in either form. Further, the
amendment was not essential to the State making a valid charge of the crime.
See Fajardo v. State, 859 N.E.2d 1201, 1205 (Ind. 2007) (“an amendment is of
substance only if it is essential to making a valid charge of the crime”). The
amendment was clearly one of form. See Erkins, 13 N.E.3d at 406 (amendment
was one of form because the particular identity of the co-conspirator performing
the overt act in furtherance of the conspiracy was not essential to making a
valid conspiracy charge).1
[18] We cannot say that appellate counsel was ineffective for failing to raise a claim
that would have been unsuccessful on direct appeal.
[19] Judgment affirmed.
Mathias, J., concurs.
Baker, J., concurs in result with opinion.
1
In Erkins, the trial court permitted an amendment during trial that changed the name of the co-conspirator
who performed the overt act in furtherance of the conspiracy. On appeal, the defendant argued that “because
his defense had been based on the State’s allegation that he had done the surveillance [rather than his co-
conspirator], the change was one of substance”. Id. at 405. The Supreme Court rejected this argument.
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IN THE
COURT OF APPEALS OF INDIANA
David L. Johnson, Jr., Court of Appeals Case No.
82A01-1611-PC-2460
Appellant-Defendant,
v.
State of Indiana,
Appellee-Plaintiff
Baker, Judge, concurring in result.
[20] I concur with the result reached by the majority but respectfully part ways with
its analysis. While I agree with the majority that “the neglect statute does not
mandate that the defendant be a parent of the child but rather the statute
provides that it is sufficient that the defendant voluntarily assumed caring for
the child,” slip op. p. 8, in this case, the way in which the State charged the
offense limited the way in which it could meet its burden of proof. By initially
charging only that Johnson had a legal obligation to A.J., the State (perhaps
unnecessarily) tied its own hands and limited its own options.
[21] Because of the way in which the State drafted its initial charging information,
part of Johnson’s defense rested on the fact that the State was unable to prove
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that he had established paternity.2 When the State amended the charging
information to include both prongs of the statute, the amendment demoted the
issue of paternity from dispositive to irrelevant. I can only conclude that
Johnson’s defense regarding paternity was not equally available under the
amended charge, that it was consequently an amendment of substance, and that
the trial court should not, therefore, have granted the State’s motion to amend.
[22] Appellate counsel considered raising this issue on appeal but decided against it
because he thought that trial counsel had invited the error. PCR Ex. B. p. 1. I
cannot agree with this analysis. During the discussion regarding the State’s
motion to amend, trial counsel did concede—arguably erroneously—that the
amendment would be lawful if it were one of form. But it is clear that trial
counsel did not concede that the amendment was one of form, maintaining
throughout that the amendment was substantive and therefore impermissible.
Indeed, when the trial court granted the motion, it explicitly noted that it was
doing so over Johnson’s objection. Under these circumstances, it is unlikely
that this Court would have found that trial counsel invited the error.
[23] That said, it must still be determined whether Johnson was prejudiced as a
result of appellate counsel’s decision to forgo raising the issue on appeal. The
remedy to which Johnson contends he would be entitled, were a ruling to be
2
The State notes that Johnson also had other defenses, notably that he was not the individual who had
injured A.J. As Johnson observes, however, the State cites to no authority that holds or even suggests that an
amendment is unlawful only if it obliterates every aspect of the defendant’s defense. I do not find the fact
that Johnson had multiple lines of defense to be of import.
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issued in his favor, is a new trial. Appellant’s Br. p. 21; see, e.g., Gibbs v. State,
952 N.E.2d 214, 224 (Ind. Ct. App. 2011) (finding that trial court erred by
allowing State to make substantive amendment of charges after jury trial had
commenced and reversing, vacating conviction, and remanding for a new trial).
Were Johnson to receive a new trial, I am confident that the State would amend
its original charging information—in a timely fashion, before trial began—to
include both prongs of the child neglect statute.
[24] Johnson has not explained how he would benefit from a new trial. He has
offered no argument and proffered no evidence suggesting that he would have a
defense to a charge that he voluntarily assumed the care of A.J., who was his
dependent. He has made no suggestion that he has a defense to any of the
following evidence: (1) A.J. had lived with Johnson and her mother since she
was born; (2) Johnson referred to A.J. as his daughter on the 911 call and to a
police detective; and (3) Johnson’s father referred to A.J. as Johnson’s daughter
during his testimony. He has not contended that he did not voluntarily assume
the care of A.J. when A.J.’s mother went to sleep and left the baby with
Johnson to feed and put to bed. Under these circumstances, even if appellate
counsel had raised this issue on appeal, and even if this Court had found the
trial court’s ruling to be erroneous, we would have found the error to be
harmless. Therefore, Johnson has failed to establish that, even if appellate
counsel was ineffective, he was prejudiced as a result.
[25] Consequently, while I part ways with the reasoning of the majority, I agree that
the judgment of the post-conviction court should be affirmed.
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