                                                                                 FILED
                                                                         Oct 10 2019, 5:50 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      ATTORNEYS FOR APPELLANT                                    ATTORNEY FOR APPELLEE
      Curtis T. Hill, Jr.                                        Dawnya G. Taylor
      Attorney General of Indiana                                Evansville, Indiana
      Caroline G. Templeton
      Deputy Attorney General
      Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      State of Indiana,                                          October 10, 2019
      Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                                 18A-CR-2408
              v.                                                 Appeal from the
                                                                 Vanderburgh Superior Court
      Frederick Obryan McFarland,                                The Honorable
      Appellee-Defendant.                                        Robert J. Pigman, Judge
                                                                 Trial Court Cause No.
                                                                 82D03-1712-F3-7410



      Kirsch, Judge.


[1]   Through this permissive interlocutory appeal, the State of Indiana (“the State”)

      appeals the trial court’s denial of the State’s request to amend the habitual

      offender charging information for Frederick Obryan McFarland

      (“McFarland”), raising the following restated issue: whether the trial court

      abused its discretion by denying the State’s motion to amend the habitual
      Court of Appeals of Indiana | Opinion 18A-CR-2408 | October 10, 2019                           Page 1 of 12
      offender charging information, which the State filed three calendar days before

      trial.


[2]   We affirm.


                                       Facts and Procedural History
[3]   On November 29, 2017, officers from the Evansville Police Department

      attempted to conduct a traffic stop of McFarland. Appellant’s App. Vol. 2 at 46.

      McFarland did not stop and, instead, sped away, ran several stop signs, and

      collided with a 2003 PT Cruiser, which had the right of way. Id. The PT

      Cruiser was carrying four people; an infant and a two-year-old died from their

      injuries, and two adults were transported to the hospital. Id.


[4]   On December 1, 2017, the State charged McFarland with four counts of

      resisting law enforcement, two counts as Level 3 felonies1 and two counts as

      Level 5 felonies,2 and later amended one of the Level 5 felonies to a Level 3

      felony because one of the adults subsequently died from his injuries. Id. at 5,

      38. That same day, the State also alleged that McFarland was a habitual

      offender, citing his conviction for theft in 82C01-1007-FD-805 (“the prior theft

      conviction”) and his conviction for carrying a handgun without a license in




      1
          See Ind. Code § 35-44.1-3-1(a)(3), (b)(3).
      2
          See Ind. Code § 35-44.1-3-1(a)(3), (b)(2).



      Court of Appeals of Indiana | Opinion 18A-CR-2408 | October 10, 2019     Page 2 of 12
      82D02-1305-FC-638. Id. at 5, 34. On January 3, 2018, the trial court set the

      omnibus date for April 1, 2018. Id. at 8.


[5]   On Friday, August 17, 2018, more than eight months after the State charged

      McFarland and only three calendar days before trial, the State moved to amend

      the habitual offender charging information. Id. at 11. Even though the

      amendment was filed three calendar days before the Monday, August 20, 2018

      trial, it was filed less than two business hours before trial as the State filed the

      proposed amendment on Friday at 3:04 p.m. Id. at 75. The State filed the

      proposed amendment because the prior theft conviction was actually a

      misdemeanor conviction, not a felony conviction, so the State sought leave to

      replace the prior theft conviction with McFarland’s felony conviction in 82D02-

      1407-F5-1013 (“F5-1013”) for carrying a handgun without a license. Id. at 11,

      75; Tr. Vol. 2 at 4-5.


[6]   McFarland filed an objection, which the trial court heard on the morning of

      trial. Id. at 76; Tr. Vol. 2 at 1-17. At that hearing, the State argued that its

      proposed amendment would not prejudice McFarlane because McFarland’s

      attorney had represented McFarland in F5-1013 and was familiar with that

      case. Id. at 4-5. The State also argued that even if the proposed amendment

      prejudiced McFarland’s trial preparation, the trial court, upon McFarland’s

      request, would be required to continue the trial date. Id.; see Ind. Code § 35-34-

      1-5(d). McFarland responded that the State’s proposed amendment was a

      substantive change to the charging information because it took away

      McFarland’s defense that, as charged, the State’s habitual offender charge must

      Court of Appeals of Indiana | Opinion 18A-CR-2408 | October 10, 2019         Page 3 of 12
      fail as a matter of law because only one of the two predicate convictions was a

      felony conviction. Tr. Vol. 2 at 7. Relying on Nunley v. State, 995 N.E.2d 718

      (Ind. Ct. App. 2013), the trial court denied the State’s motion to amend,

      concluding that it would prejudice McFarland’s substantial rights because it

      would have negated McFarland’s defense and because it was not supported by

      good cause. Tr. Vol. 2 at 14-15.


[7]   Per the State’s request, the trial court certified its ruling for interlocutory review.

      The State sought leave from this court to bring a permissive interlocutory

      appeal, and on November 9, 2018, we granted the State’s request and accepted

      jurisdiction over this appeal.3 Appellant’s App. Vol. 2 at 13.


                                         Discussion and Decision
[8]   Relying on Indiana Code section 35-34-1-5(b)(2),4 the State argues that the trial

      court abused its discretion in denying its motion to amend the habitual offender

      charging information because the proposed amendment would not have

      prejudiced McFarland’s substantial rights, even though it sought leave to file




      3
        Because the trial court certified its ruling on September 4, 2018, the State’s deadline to file its motion for
      interlocutory appeal with this court was October 4, 2018. See Ind. Appellate Rule 14(B)(2)(a). However, the
      State filed its motion here on October 5, 2018, one day late. Odyssey, Motion for Interlocutory Appeal. “Failure
      to timely perfect an interlocutory appeal results in forfeiture of the opportunity to pursue the appeal.” Haston
      v. State, 695 N.E.2d 1042, 1044 (Ind. Ct. App. 1998) (“Haston had thirty days from the certification order
      from the trial court within which to petition this court to entertain jurisdiction but did not do so.”); see also
      Kindred v. Townsend, 4 N.E.3d 793, 795 (Ind. Ct. App. 2014), trans. denied. Nonetheless, we choose to address
      this appeal on the merits.
      4
       Since the trial court set the omnibus date for April 1, 2018 -- see Appellant’s App. Vol. 2 at 8 -- under Indiana
      Code section 35-34-1-5(b)(1) the State’s proposed amendment was due March 2, 2018, five and one-half
      months before the State filed its proposed amendment.

      Court of Appeals of Indiana | Opinion 18A-CR-2408 | October 10, 2019                                   Page 4 of 12
      the amendment eight months after the original charging information was filed

      and less than two business hours before trial. The State contends that it

      provided McFarland with adequate notice because McFarland knew his own

      criminal history and, even if he did not, the State actually provided McFarland

      a copy of his criminal history soon after he was charged. The State also argues

      that the amendment would not undermine McFarland’s ability to prepare for

      trial, correctly noting that upon McFarland’s request, the trial court would have

      been obligated under Indiana Code section 35-34-1-5(d) to continue the trial

      date to give McFarland more time to prepare for trial. Finally, the State argues

      that the proposed amendment would not have taken away McFarland’s

      defense, i.e., that the State could not prove that McFarland was a habitual

      offender. McFarland counters by arguing, inter alia, that the amendment would

      have prejudiced his substantial rights.5


[9]   We review a trial court’s decision on whether to permit an amendment to a

      charging information for an abuse of discretion. Keller v. State, 987 N.E.2d

      1099, 1109 (Ind. Ct. App. 2013), trans. denied. The State bears the burden of

      proof to show that an amendment will not prejudice a defendant’s substantial

      rights. Cf. Prewitt v. State, 761 N.E.2d 862, 868 (Ind. Ct. App. 2002)




      5
        McFarland also argues that under Nunley v. State, 995 N.E.2d 718, 722-24 (Ind. Ct. App. 2013), we should
      affirm the trial court because if the trial court had allowed the amendment, McFarland’s rights would have
      been substantially prejudiced because the proposed amendment would have taken away McFarland’s defense
      that the State, under the initial habitual offender charging information, could not, as a matter of law, prove
      that McFarland was a habitual offender because only one of the predicate convictions the State cited was a
      felony conviction. See Ind. Code § 35-50-2-8(b), (c). We acknowledge this argument but choose to resolve
      this appeal on different grounds.

      Court of Appeals of Indiana | Opinion 18A-CR-2408 | October 10, 2019                              Page 5 of 12
       (“defendant failed to meet his burden of proving that his substantial rights were

       prejudiced by the late amendment”).


[10]   Indiana Code section 35-34-1-5 governs amendments, and it provides, in part:


               (b) The indictment or information may be amended in matters of
               substance and the names of material witnesses may be added, by
               the prosecuting attorney, upon giving written notice to the
               defendant at any time:


               (1) up to:


               (A) thirty (30) days if the defendant is charged with a felony; or


               (B) fifteen (15) days if the defendant is charged only with one (1)
               or more misdemeanors;


               before the omnibus date; or


               (2) before the commencement of trial;


               if the amendment does not prejudice the substantial rights of the
               defendant. When the information or indictment is amended, it
               shall be signed by the prosecuting attorney or a deputy
               prosecuting attorney.


               ....


               (d) Before amendment of any indictment or information other
               than amendment as provided in subsection (b), the court shall
               give all parties adequate notice of the intended amendment and
               an opportunity to be heard. Upon permitting such amendment,

       Court of Appeals of Indiana | Opinion 18A-CR-2408 | October 10, 2019          Page 6 of 12
               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 the
               defendant’s defense.


       Ind. Code § 35-34-1-5(b), (d) (emphasis added).


[11]   In Gibbs v. State, we described the difference between amendments of form and

       amendments of substance:


               [A]n amendment is one of form, not substance, if both (a) a
               defense under the original [I]nformation would be equally
               available after the amendment, and (b) the accused’s evidence
               would apply equally to the [I]nformation in either form. And an
               amendment is one of substance only if it is essential to making a
               valid charge of the crime.


       952 N.E.2d 214, 221 (Ind. Ct. App. 2011) (quoting Fields v. State, 888 N.E.2d

       304, 310 (Ind. Ct. App. 2008)), trans. denied.


[12]   In Gomez v. State, we explained what constitutes a defendant’s 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
               positions of either of the parties, it does not violate these rights.
               Ultimately, the question is whether the defendant had a
               reasonable opportunity to prepare for and defend against the
               charges.


       907 N.E.2d 607, 611 (Ind. Ct. App. 2009) (internal citations and quotations

       omitted), trans. denied.


       Court of Appeals of Indiana | Opinion 18A-CR-2408 | October 10, 2019       Page 7 of 12
[13]   Here, we find that the State’s proposed amendment was one of substance, not

       form. First, if the trial court had allowed the amendment, McFarland’s defense

       that the State had listed only one valid predicate conviction would have

       withered away. See Gibbs, 952 N.E.2d at 221. Similarly, the proposed

       amendment was substantive because it was necessary for the State to bring a

       valid, prima face allegation that McFarland was a habitual offender. See id.

       The State admitted this. Tr. Vol. 2 at 4-5. Second, in Nunley v. State, we found

       that an amendment to a habitual offender charging information under nearly

       identical circumstances was a substantive amendment. See Nunley, 995 N.E.2d

       at 723-25.


[14]   Because the amendment was one of substance, the State was required to show

       that the amendment would not have prejudiced McFarland’s substantial rights.

       See Ind. Code § 35-34-1-5(b). The crux of the State’s argument that the

       amendment would not have prejudiced McFarland’s substantial rights is that if

       the trial court had granted the State’s request to amend, the trial court would

       have been required, upon McFarland’s request, to continue the trial date. See

       Ind. Code § 35-34-1-5(d). However, we have previously reviewed claims

       regarding the propriety of amendments without regard to whether a

       continuance would have alleviated any prejudice caused by an amendment. In

       Ramon v. State, 888 N.E.2d 244, 252-53 (Ind. Ct. App. 2008), Ramon alleged

       that under Indiana Code section 35-34-1-5(b)(2), the same statute McFarland

       relies on here, the State’s amendment prejudiced his substantial rights. Id.

       Even though Ramon did not request a continuance after the trial court granted

       Court of Appeals of Indiana | Opinion 18A-CR-2408 | October 10, 2019      Page 8 of 12
       the State’s motion to amend, we nonetheless addressed the merits of Ramon’s

       appeal without addressing whether a continuance would have alleviated any

       prejudice. Id. Similarly, in Gibbs and Fuller v. State, 875 N.E.2d 326 (Ind. Ct.

       App. 2007), trans. denied, we reached the merits of the appellants’ claims

       regarding the granting of amendments in their respective cases, although those

       cases were resolved on whether the State’s amendments met statutory

       deadlines, not whether the amendments substantially prejudiced the defendants.

       Gibbs, 952 N.E.2d at 222-24; Fuller, 875 N.E.2d at 331-32. Here, therefore, we

       will review the denial of the State’s motion to amend without regard to

       whatever benefit a continuance would have given McFarland.6


[15]   In several recent cases, we have affirmed pretrial but post-omnibus-date

       amendments of substance to an information. In Mays v. State, 120 N.E.3d 1070,

       1081-82 (Ind. Ct. App. 2019), trans. denied, we found no prejudice where the

       State’s notice of the proposed amendment was given to the defendant nearly

       four months before trial and the alibi defense was equally available after the

       amendment. In Barnett v. State, 83 N.E.3d 93, 101-02 (Ind. Ct. App. 2017),

       trans. denied, we found that Barnett’s substantial rights were not prejudiced




       6
        Unlike the State, we will not assume that a continuance would have been in McFarland’s best interests.
       While a continuance, under these circumstances, would normally serve a defendant’s best interests,
       McFarland may have been considering other factors that would have weighed against seeking a continuance.
       For example, even at this stage of litigation, McFarland would have had the option of filing a motion for
       speedy trial under Indiana Criminal Rule 4(B)(1). A continuance would undermine McFarland’s interest in
       quickly setting this matter to rest. Thus, requiring McFarland to seek a continuance could potentially foist
       upon him a Hobson’s choice: seek more time to prepare for trial or forgo a continuance, and thereby hinder
       his trial preparation, in the interest of bringing this litigation to a speedy end.



       Court of Appeals of Indiana | Opinion 18A-CR-2408 | October 10, 2019                            Page 9 of 12
       where the State filed its amendment five weeks after the omnibus date but two

       months before the beginning of trial and three months before Barnett presented

       his case in chief and because the amendment arose from the same “time [and]

       place as the original counts.” In Shaw v. State, 82 N.E.3d 886, 897 (Ind. Ct.

       App. 2017), trans. denied, we found no prejudice where the State’s amendment

       elevated an aggravated battery offense to murder following the victim’s death

       because the trial did not begin until more than two months after the amendment

       and the defendant’s defense that “he was not at the scene and did not

       participate in [the] beating” would “not change.” In Mannix v. State, 54 N.E.3d

       1002, 1010 (Ind. Ct. App. 2016), we found no prejudice where the State filed its

       motion to amend more than eight months before the beginning of the trial.

       And, finally, in Gaby v. State, 949 N.E.2d 870, 875 (Ind. Ct. App. 2011), we

       found no prejudice where the State moved to amend the charging information

       one week before trial to correct an error in the date of an alleged molestation

       offense because the amendment did not deprive Gaby of his defense of

       challenging the victim’s recollection of the alleged event.


[16]   None of these cases are analogous to McFarland’s situation. Here, the State

       filed its proposed amendment less than two business hours before trial. In

       doing so, the State did not provide adequate notice to McFarland and left

       McFarland no time to prepare for the habitual offender portion of the trial. See

       Gomez, 907 N.E.2d at 611. The amendment also took away McFarland’s

       defense that one of the two convictions that the State initially cited in its

       habitual offender charging information, was not, as the State admitted, a valid


       Court of Appeals of Indiana | Opinion 18A-CR-2408 | October 10, 2019       Page 10 of 12
       predicate offense under Indiana Code section 35-50-2-8. Tr. Vol. 2 at 4-5. Thus,

       McFarland’s defense would not have been “equally available” if the trial court

       allowed the amendment. See Gibbs, 952 N.E.2d at 221. Had the trial court

       allowed the amendment, McFarland would have been left scrambling to

       fashion a new defense within a matter of hours. See Erkins v. State, 13 N.E.3d

       400, 405-06 (Ind. 2014); Gomez, 907 N.E.2d at 611. Forcing McFarland’s

       attorney to modify McFarland’s defense on the fly would have also implicated

       McFarland’s Sixth Amendment right to effective assistance of counsel. The

       right to a reasonable opportunity to prepare for and defend against charges is a

       hallmark of “[t]he right of an accused . . . to due process.” Saylor v. State, 559

       N.E.2d 332, 335 (Ind. Ct. App. 1990) (citing Chambers v. Mississippi, 410 U.S.

       284, 295 (1973)), trans. denied. That right implicates a defendant’s Sixth

       Amendment right to effective assistance of counsel—a counsel who is not

       provided with sufficient time to give “effective aid in the preparation and trial of

       the case” is constructively no counsel at all. Powell v. Alabama, 287 U.S. 45, 71-

       72 (1932).


[17]   Finally, the trial court’s familiarity with the case placed it in a better position

       than this court to gauge how much the amendment would have prejudiced

       McFarland’s substantial rights. Considering that the State sought leave to file

       its amendment eight months after filing the initial charges and less than two

       business hours before trial, we cannot say that the trial court abused its

       discretion in denying the State’s motion to amend.


[18]   Affirmed.

       Court of Appeals of Indiana | Opinion 18A-CR-2408 | October 10, 2019        Page 11 of 12
Vaidik, C.J., and Altice, J., concur.




Court of Appeals of Indiana | Opinion 18A-CR-2408 | October 10, 2019   Page 12 of 12
