Charles R. Cole, III v. State of Indiana

FILED
Sep 21 2016, 7:54 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Stephen T. Owens Gregory F. Zoeller
Public Defender of Indiana Attorney General of Indiana
William D. Polansky Katherine Modesitt Cooper
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Charles R. Cole, III, September 21, 2016
Appellant-Petitioner, Court of Appeals Case No.
82A01-1602-PC-304
v. Appeal from the Vanderburgh Circuit
Court.
The Honorable Robert J. Pigman,
State of Indiana, Special Judge.
Appellee-Respondent. Cause No. 82C01-1006-PC-10
Barteau, Senior Judge
Statement of the Case
[1] Charles R. Cole, III, appeals the denial of his petition for post-conviction relief.
We affirm.
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Issue
[2] Cole raises one issue, which we restate as: whether the post-conviction court
erred in rejecting his claim of ineffective assistance of trial counsel.
Facts and Procedural History
[3] The facts, as stated in Cole’s direct appeal, are as follows:
On May 1, 1995, Cole, Christine Goodwin, and James Thomas
planned to rob First Federal Savings Bank in Vanderburgh
County. Goodwin drove an Oldsmobile, and Cole and Thomas
drove a red Toyota to the bank. Cole and Thomas wore ski
masks and Cole was armed with a handgun. While Goodwin
waited in the Oldsmobile, Cole and Thomas entered the bank,
Cole jumped onto the teller’s counter, pointed a gun at the teller’s
head and demanded money. Cole and Thomas left the bank with
$3000, and Goodwin drove them to the home of Angel Cole,
Cole’s sister.
Cole and Goodwin planned to rob another bank on May 27,
1995. However, on the day of the robbery, the group decided
that Goodwin would not participate. As a result, Michael Grey
took Goodwin’s place in assisting with the robbery. Cole and
Grey drove the Oldsmobile and the red Toyota to Union Federal
Savings Bank. As in the first robbery, Cole wore a ski mask and
was armed with a handgun. Again, he jumped onto the teller’s
counter and demanded money. He then fled with $33,000 to
Angel Cole’s house.
On June 24, 1995, Cole, Goodwin and Thomas drove the
Oldsmobile to the National City Bank intending to rob it.
Again, Cole was wearing a ski mask and was armed with the
same handgun he had used in the previous two robberies.
However, after arriving at the bank, they found that it was
closed.
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On June 26, 1995, Cole and Goodwin drove to Citizens Bank
in the Oldsmobile. Cole then robbed the bank in the same
manner as he had robbed the other banks. After Cole and
Goodwin fled the bank, they drove to Angel Cole’s house.
Later, as Goodwin left the sister’s house, the police arrested
her for the most recent robbery. Goodwin confessed to the
police that she and Cole had committed several robberies and
told the police that they could find Cole at his father’s house.
The police then arrested Cole at his father’s house. In
addition, the police obtained consent from the father to search
the premises. During this search, they found several firearms.
Cole v. State, Cause No. 82A05-9610-CR-439, *2-3 (Ind. Ct. App. Dec. 8, 1997).
[4] The State initially charged Cole with two counts of Class B felony robbery and
one count of Class B felony attempted robbery. After the omnibus date had
passed, Cole filed a motion to sever the charges and the State amended the
charging information to add a third count of Class B felony robbery. Cole did
not object to the amendment. The trial court later denied Cole’s motion to
sever.
[5] A jury determined Cole was guilty of the three counts of robbery but not guilty
of attempted robbery, and the trial court sentenced Cole accordingly. Cole
appealed, claiming the trial court erred in denying his motion to sever and in
admitting evidence found during a search of his father’s house. The Court
affirmed his convictions. See id.
[6] Cole filed a petition for post-conviction relief, presenting three claims of
ineffective assistance of trial counsel. The post-conviction court held an
evidentiary hearing. During the hearing, Cole submitted affidavits from his two
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trial attorneys. After an evidentiary hearing, the post-conviction court issued
findings of fact and conclusions thereon denying Cole’s petition in its entirety.
Discussion and Decision
[7] Cole argues the post-conviction court erred by rejecting one of his claims of
ineffective assistance of trial counsel. Specifically, he contends his attorneys
should have objected to the State’s amendment of the charging information to
add an additional count of robbery because the amendment was untimely. The
State responds that the prosecutor was allowed under then-existing caselaw to
file the amendment, so Cole’s counsel did not render ineffective assistance by
declining to object.
[8] Post-conviction proceedings are civil in nature and the petitioner must prove his
or her claims by a preponderance of the evidence. Wilkes v. State, 984 N.E.2d
1236, 1240 (Ind. 2013). When a petitioner appeals from the denial of post-
conviction relief, he or she appeals from a negative judgment. Pannell v. State,
36 N.E.3d 477, 485 (Ind. Ct. App. 2015), trans. denied. We may not reverse the
judgment of the post-conviction court unless the evidence as a whole leads to a
decision opposite that of the post-conviction court. Id. Stated differently, the
appellant must convince the Court there is no way within the law that the post-
conviction court could have reached the decision it did. Wilkes, 984 N.E.2d at
1240. We accept the post-conviction court’s findings of fact unless they are
clearly erroneous, but we do not defer to the court’s conclusions of law.
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Pannell, 36 N.E.3d at 485. Here, the parties do not point to any evidentiary
1
disputes and instead present a question of law.
[9] We evaluate claims of ineffective assistance under the two-part test originally
set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984). A petitioner must demonstrate that his or her counsel performed
deficiently, resulting in prejudice. Rondeau v. State, 48 N.E.3d 907, 916 (Ind. Ct.
App. 2016), trans. denied. Counsel renders deficient performance when his or
her representation fails to meet an objective standard of reasonableness. Id.
Prejudice exists when a petitioner demonstrates that, if not for counsel’s
deficient performance, there is a reasonable probability that the result would
have been different. Id. A petitioner must prove both parts of the test, and
failure to do so will cause the claim to fail. Mallory v. State, 954 N.E.2d 933,
936 (Ind. Ct. App. 2011).
[10] We strongly presume counsel provided adequate assistance and exercised
reasonable professional judgment in all significant decisions. Morales v. State, 19
N.E.3d 292, 297 (Ind. Ct. App. 2014), trans. denied. Counsel’s conduct is
assessed based on facts known at the time and not through hindsight. Id.
Where, as here, a claim of ineffective assistance is based on counsel’s failure to
1
Cole argues in his Reply Brief that the State has failed to specifically support the post-conviction court’s
legal reasoning in this appeal. Cole further concludes that, due to the State’s failure to defend the post-
conviction court’s conclusions of law, he need only present a prima facie case to prevail. We disagree. As
noted above, the relevant issue in this appeal is purely legal in nature, and we are not bound by the post-
conviction court’s interpretation of the law.
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object, the petitioner must demonstrate that if an objection had been made, the
trial court would have had no choice but to sustain it. Little v. State, 819 N.E.2d
496, 506 (Ind. Ct. App. 2004), trans. denied.
[11] At the time Cole committed his crimes, the statute that governed the
amendment of a charging information provided, in relevant part:
(a) An indictment or information which charges the commission
of an offense may not be dismissed but may be amended on
motion by the prosecuting attorney at any time because of any
immaterial defect, including:
(1) any miswriting, misspelling, or grammatical error;
(2) any misjoinder of parties defendant or offenses charged;
(3) the presence of any unnecessary repugnant allegation;
(4) the failure to negate any exception, excuse, or provision
contained in the statute defining the offense;
(5) the use of alternative or disjunctive allegations as to the acts,
means, intents, or results charged;
(6) any mistake in the name of the court or county in the title of
the action, or the statutory provision alleged to have been
violated;
(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;
(8) the failure to state an amount of value or price of any matter
where that value or price is not of the essence of the offense; or
(9) any other defect which does not prejudice the substantial
rights of the defendant.
(b) The indictment or information may be amended in matters of
substance or form, and the names of material witnesses may be
added, by the prosecuting attorney, upon giving written notice to
the defendant, at any time up to:
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(1) thirty (30) days if the defendant is charged with a felony; or
(2) fifteen (15) days if the defendant is charged only with one (1)
or more misdemeanors;
before the omnibus date. When the information or indictment is
amended, it shall be signed by the prosecuting attorney.
(c) Upon motion of the prosecuting attorney, the court may, at
any time before, during, or after the trial, permit an amendment
to the indictment or information in respect to any defect,
imperfection, or omission in form which does not prejudice the
substantial rights of the defendant.
(d) Before amendment of any indictment or information other
than amendment as provided in subsection (b) of this section, the
court shall give all parties adequate notice of the intended
amendment and an opportunity to be heard. Upon permitting
such amendment, the court shall, upon motion by the defendant,
order any continuance of the proceedings which may be
necessary to accord the defendant adequate opportunity to
prepare his defense.
Ind. Code § 35-34-1-5 (1993).
[12] Cole claims: (1) the amendment of the charging information to add another
robbery charge was a matter of substance, not form; and (2) the amendment
was untimely because he was charged with a felony, but the prosecutor
submitted the amendment after the deadline set forth in subsection (b) of the
statute. As a result, Cole reasons his attorney should have objected to the late
amendment, which he believes would have resulted in the amendment being
rejected and the dismissal of one of the charges for which he was later
convicted. The State does not dispute that the amendment was of substance
rather than form and that the prosecutor filed the amendment after the omnibus
date. Instead, the State argues that caselaw in effect at that time permitted
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substantive amendments to the charging information after the statutory
deadline, and Cole’s counsel did not render deficient performance by failing to
object.
[13] In Fajardo v. State, 859 N.E.2d 1201, 1204-06 (Ind. 2007), the Indiana Supreme
Court considered the legislative history and prior judicial application of Ind.
Code § 35-34-1-5, including during the period of time when Cole committed his
crimes. The Court noted that the statute clearly required that all amendments
as to substance must be filed no later than thirty days before the omnibus date
in felony cases. Id. at 1206. Despite the statutory language, the Court noted,
“Ensuing case law, however, has been inconsistent and conflicting, often
reflecting the practice and procedure under prior statutes, or imprecisely
disregarding the subsection 5(b) timeliness requirement for amendments to
substance in favor of the absence of prejudice requirement that subsections
5(a)(9) and 5(c) apply only to amendments of form.” Id.
[14] The Court further stated:
Several cases have permitted amendments related to matters of
substance simply on grounds that the changes did not prejudice
the substantial rights of the defendant, without regard to whether
or not the amendments were untimely. Several other cases
likewise have not focused upon whether the challenged
amendment was one of form or substance, but have employed
components of the substance/form test (whether defense equally
available and evidence equally applicable, and whether
amendment not essential to making a valid charge) to assess
whether the defendant’s substantial rights were prejudiced, which
is not a controlling factor for permitting substantive amendments.
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The methodology employed in the cases identified in this
paragraph does not comply with Indiana Code § 35-34-1-5.
Id. at 1206-07 (citations and footnotes omitted).
[15] Thus, in Fajardo, the Court disapproved of nineteen Indiana Supreme Court
and Court of Appeals cases over the previous twenty years where the plain
language of Indiana Code section 35-34-1-5(b) had been disregarded. The
Court further clarified that, going forward, the timeliness requirement for filing
2
substantive amendments must be followed. The discussion in Fajardo serves to
emphasize that, at the time Cole faced his criminal charges, substantive
amendments that added additional charges were permitted even if the State
submitted the amendments after the statutory deadline. See, e.g., Tripp v. State,
729 N.E.2d 1061, 1065 (Ind. Ct. App. 2000) (amendment of information to add
a new charge after omnibus date was permissible) (abrogated by Fajardo); Todd
v. State, 566 N.E.2d 67, 69-70 (Ind. Ct. App. 1991) (amendment of information
to add new charges on the day of trial was permissible) (abrogated by Fajardo).
[16] Further, Cole concedes, “there was no case at the time [he committed his
crimes] reversing a conviction for an untimely amendment of substance.”
Appellant’s Br. p. 15. Given the existence of appellate decisions affirming trial
court rulings permitting late, substantive amendments to a charging
2
After the Indiana Supreme Court issued Fajardo, the General Assembly amended Indiana Code § 35-34-1-5
to state that a prosecutor may amend the charging complaint, even as to matters of substance, at any time
before trial so long as the amendment does not prejudice the defendant’s substantial rights. See Hurst v. State,
890 N.E.2d 88, 93 (Ind. Ct. App. 2008), trans. denied.
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information, Cole has failed to demonstrate that if Cole’s attorney had objected
to the late amendment, the trial court “would have had no choice but to
sustain” the objection. Little, 819 N.E.2d at 506. As a result, Cole has failed to
establish that his trial counsel performed deficiently.
[17] Cole cites Fisher v. State, 810 N.E.2d 674 (Ind. 2004), in support of his claim
that his trial counsel should have objected to the amendment even though the
caselaw at that time was unclear. In Fisher, a post-conviction petitioner claimed
ineffective assistance of direct appeal counsel, arguing his counsel should have
challenged the trial court’s rejection of his proposed jury instruction on lesser
included offenses. Fisher argued the jury instruction issue was a stronger claim
than the claims counsel actually presented. The Indiana Supreme Court noted
that the law governing instructions for lesser included offenses was “in a state of
flux” at the time of Fisher’s trial. Id. at 678. Nevertheless, the Court concluded
Fisher’s appellate counsel should have raised the claim because the claim “was
both significant and obvious as well as clearly stronger than the issues raised.”
Id. at 679.
[18] Fisher is distinguishable from the current case because it involved a different
procedural posture and a different standard of review (whether direct appellate
counsel failed to raise a claim that was significant, obvious, and clearly stronger
than the issues raised) than in the current case (whether trial counsel should
have objected because the trial court would have had no choice but to sustain
the objection). In addition, in Fisher the Indiana Supreme Court concluded the
change in the law at issue there was based in part “upon then-existing case
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authority” of which Fisher’s counsel should have been aware. Id. at 678-79. By
contrast, in Fajardo the Court simply cited the plain language of Indiana Code
section 35-34-1-5 to invalidate nineteen prior decisions—an outcome that was
arguably less predictable than the change in Fisher.
Conclusion
[19] Cole has failed to establish that the post-conviction court erred. For the reasons
stated above, we affirm the judgment of the trial court.
[20] Affirmed.
Najam, J., and Bradford, J., concur.
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