                                                                        FILED
                                                                   Aug 17 2017, 5:27 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Michael K. Ausbrook                                        Curtis T. Hill, Jr.
Bloomington, Indiana                                       Attorney General of Indiana
                                                           James B. Martin
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Troy Shaw,                                                 August 17, 2017
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           02A03-1312-CR-505
        v.                                                 Appeal from the Allen Superior
                                                           Court
State of Indiana,                                          The Honorable Frances C. Gull,
Appellee-Plaintiff.                                        Judge
                                                           The Honorable John F. Surbeck,
                                                           Jr., Judge
                                                           Trial Court Cause No.
                                                           02D04-0006-CF-315



Pyle, Judge.




Court of Appeals of Indiana | Opinion 02A03-1312-CR-505 | August 17, 2017                   Page 1 of 23
                                            Statement of the Case
[1]   This case returns to our Court following a ruling on Troy Shaw’s (“Shaw”)

      federal habeas petition. Specifically, in 2013, the United States Court of

      Appeals for the Seventh Circuit (“the Seventh Circuit”) concluded that Shaw

      had been denied the effective assistance of appellate counsel in his direct appeal

      because counsel had failed to raise an appellate challenge to an amendment to

      Shaw’s charging information. The Seventh Circuit further concluded that Shaw

      was entitled to a new direct appeal for his 2001 murder conviction.1 Shaw v.

      Wilson, 721 F.3d 908, 912 (7th Cir. 2013), reh’g denied, reh’g en banc denied, cert.

      denied. In this new appeal, the sole issue for our review is whether the trial

      court properly allowed the State to amend the charging information seventeen

      months after the omnibus date. 2 Finding no error, we affirm the trial court’s

      judgment.


[2]   We affirm.


                                                           Issue
                 Whether the trial court properly allowed the State to amend the
                 charging information seventeen months after the omnibus date.




      1
          IND. CODE § 35-42-1-1.
      2
          Shaw raises several other issues, which we will address as preliminary matters before addressing this issue.


      Court of Appeals of Indiana | Opinion 02A03-1312-CR-505 | August 17, 2017                            Page 2 of 23
                                                      Facts
[3]   The facts supporting Shaw’s conviction were set forth as follows in his first

      direct appeal:

              Shaw worked for the New River Subscription Service selling
              magazine subscriptions. Eric Werczynski [“Werczynski”] was
              the boss of Shaw’s group. On June 5, 2000, Shaw and some of
              his co-workers arrived in Fort Wayne. Part of the group had
              arrived earlier in the day and had rented rooms at the Value
              Lodge on Coliseum Boulevard. Shaw and his co-workers
              arrived, retrieved their luggage from their vehicle, and went to
              obtain room assignments from Werczynski. A man, later
              identified as Brett King [“King”], was discovered in one of the
              rooms rented by Werczynski. Werczynski confronted King
              about his presence in the room and an altercation began. King
              fled the room, but the fight continued out on the walkway. King
              eventually escaped and ran down the stairs into the parking lot.
              Werczynski yelled for someone to “get the motherfucker.” Tr. at
              165. Steve Johnson [“Johnson”] and Chris Starling, both New
              River employees, chased King across the parking lot into a ditch
              where Starling tackled King. Werczynski arrived and the fight
              with King began again. Several other New River employees
              joined in the fight against King, including Shaw, Johnson and
              Ben Brooks [“Brooks”]. . . . King’s dead body was discovered
              later in the day on June 5, 2000, lying face down in the same
              ditch where the fight took place.

      Shaw v. State, No. 02A03-0205-CR-132 (Ind. Ct. App. May 7, 2003).


[4]   On June 9, 2000, the State charged Shaw with Class B felony aggravated

      battery. The trial court set the omnibus date for July 31, 2000. On November

      30, 2001, apparently after further investigating the case and learning more about

      Shaw’s active role in King’s beating and contribution to King’s death, the State

      Court of Appeals of Indiana | Opinion 02A03-1312-CR-505 | August 17, 2017   Page 3 of 23
      filed a motion to amend the charging information to charge Shaw with murder

      rather than aggravated battery. Both the aggravated battery and murder charges

      were based on Shaw striking and kicking King, which led to King’s death.

      Shaw had notice of the amendment, and his trial counsel objected to it on the

      basis of INDIANA CODE § 35-34-1-5 (1982), which, at that time, provided that

      an amendment of substance could be made up to thirty days before the omnibus

      date and that an amendment of form could be made even later if not

      prejudicial. The trial court granted the State’s motion to amend the charging

      information after a hearing. The trial court also granted Shaw’s motion for a

      continuance, and Shaw was given an additional two months to prepare for trial.


[5]   At the February 2002 jury trial, Johnson and Brooks testified that Shaw had

      repeatedly and viciously kicked King in the head and face. Specifically,

      Johnson testified that as King was on his hands and knees attempting to get up

      off the ground, Johnson saw Shaw “football kick [King] in the face, in the nose

      and eye area.” (Tr. 252). King went limp, and Johnson observed Shaw kick

      and stomp King’s face, head, and neck at least ten to twelve times. Brooks

      testified that Shaw kicked King “like a field goal.” (Tr. 288). Brooks further

      explained that he watched Shaw kick King in the head five or six times before

      Brooks left the scene.


[6]   Dr. Joseph Czaja (“Dr. Czaja”), who conducted King’s autopsy, testified that

      King “died of blunt force injury to the head due to multiple blows.” (Tr. 340).

      Dr. Czaja explained that King’s face had “multiple bruises . . . . both eyes were

      essentially swollen shut. Palpitating the face you could feel multiple fractures

      Court of Appeals of Indiana | Opinion 02A03-1312-CR-505 | August 17, 2017   Page 4 of 23
      of the underlying facial bones.” (Tr. 340). Dr. Czaja further explained that

      King’s:


              head was beaten so severely and the brain was shaken up so
              much that it swelled up, or as we call it, became edemedis with
              fluid to the point where that volume of the brain was greater than
              the skull could bear. . . . So the swelling of the brain pressing on
              the brain stem led to his death.


      (Tr. 342).


[7]   Fort Wayne Police Department Detective Stacey Jenkins (“Detective Jenkins”)

      testified that during two interviews with Shaw, Shaw had given him several

      different accounts of what had happened on the day of King’s beating and

      death. In a June 5, 2000 interview, Shaw was initially evasive and said that he

      had not taken part in the beating because he had been asleep. Later in the

      interview, Shaw admitted that he had chased King down the motel’s exterior

      stairway, but he denied participating in the beating. During that same

      interview, Shaw told Detective Jenkins that he had hit King with a closed fist

      while others in the group were kicking him. During a second interview in

      January 2001, in the presence of his trial counsel, Shaw stated that he had

      swung a beer bottle at King as King had run down the motel’s exterior stairway.

      Shaw further explained that after swinging the beer bottle, he had run back

      upstairs and locked himself in his motel room.


[8]   At trial, Shaw testified that he saw Werczynski chasing King and yelling at the

      magazine sellers to “get [King], kick his ass, kick his motherfucking ass, kill


      Court of Appeals of Indiana | Opinion 02A03-1312-CR-505 | August 17, 2017   Page 5 of 23
      him, hold him and wait until I get there.” (Tr. 392). Shaw explained that he

      had asked some of the other magazine sellers what was “going on” and was

      told to “get the f’ out of [there].” (Tr. 394). According to Shaw, he went to his

      motel room and “just fell on the bed” and went to sleep. (Tr. 394). He denied

      hitting or kicking King. He also denied telling Detective Jenkins that he had

      been at the ditch during the beating. Shaw further denied telling the detective

      that he had hit Shaw.


[9]   During deliberations, the jury apparently had a question. The court reporter’s

      note explains as follows:

              [J]ury has a question for the Court. Attorneys are called and on
              their way. Defendant on his way up. Court sends a note to the
              jurors that he cannot answer any further questions. (nothing on
              the record).

      (Tr. After Closing Statements 16). Six hours later, the jury returned with a

      verdict convicting Shaw of murder. After defense counsel polled the jurors and

      the trial court thanked them for their patience and efforts, the trial court stated

      as follows:

              I would also apologize to you, I’m sure it was frustrating that we
              were unable to answer your questions. I’m sure as a matter of
              hindsight you can understand that if we were to answer those
              questions, had we answered those questions directly as you asked
              it would be essentially tampering with your deliberations which
              you are exclusively charged with, and so our getting involved in
              it would be inappropriate, but at the same time I’m sure it was
              very frustrating to you that we were not able to answer those
              questions for you. I appreciate your efforts as you worked
              through those problems and arrived at a unanimous verdict.
      Court of Appeals of Indiana | Opinion 02A03-1312-CR-505 | August 17, 2017   Page 6 of 23
       (Tr. After Closing Statements 20). The trial court sentenced Shaw to sixty (60)

       years.


[10]   On direct appeal, a public defender filed a “short brief [challenging only the

       sufficiency of the evidence to support Shaw’s murder conviction] in which he

       observed that ‘there [was] conflicting testimony as to whether the Defendant,

       Troy Shaw, was in the ditch where Brett King was murdered.’” Shaw, 721 F.3d

       at 912. This Court concluded that we could not reweigh the evidence and

       affirmed Shaw’s conviction. Shaw, No. 02A03-0205-CR-132.


[11]   Shaw subsequently filed a petition for post-conviction relief wherein he argued

       that his appellate counsel rendered ineffective assistance of counsel because

       appellate counsel had abandoned trial counsel’s challenge to the validity of the

       amended charging information. Shaw specifically argued that omitting the

       claim under INDIANA CODE § 35-34-1-5 constituted deficient performance

       because the claim was significantly stronger than the sufficiency challenge that

       appellate counsel had actually made. With respect to prejudice, Shaw

       contended that the abandoned claim likely would have succeeded if made, and

       that his conviction would have been vacated. After the post-conviction court

       denied Shaw’s petition, Shaw appealed. This Court concluded that, pursuant to

       Strickland v. Washington, 466 U.S. 668 (1984), appellate counsel’s performance

       had not been deficient. Shaw v. State, 898 N.E.2d 465, 470 (Ind. Ct. App.

       2008), trans. denied. Specifically, this Court pointed out that at the time of

       Shaw’s appeal, there had been no case law in which a court had invalidated

       such an amendment to a charging information. Id. We further noted that

       Court of Appeals of Indiana | Opinion 02A03-1312-CR-505 | August 17, 2017   Page 7 of 23
       “appellate counsel would not have been able to demonstrate prejudice because

       Shaw had been granted a continuance to prepare for trial on the amended

       charges.” Id. We therefore affirmed the denial of Shaw’s post-conviction

       petition. Id.


[12]   After the Indiana Supreme Court denied transfer, Shaw filed a federal habeas

       petition challenging this Court’s application of federal law with respect to his

       ineffective assistance of appellate counsel claim. The United States District

       Court for the Southern District of Indiana (“the District Court”) denied Shaw’s

       petition in 2012. Shaw v. Mize, No. 2:09-cv-325-JMS-WGH, 2012 WL 527454,

       at *2 (S.D. Ind. Feb. 16, 2012). However, the Seventh Circuit subsequently

       concluded that Shaw’s appellate counsel had been deficient and that Shaw had

       suffered prejudice as a result of the deficiency. Shaw, 721 F.3d at 919.

       Specifically, the Seventh Circuit explained that appellate counsel’s performance

       was deficient because:

               [A] competent lawyer in Indiana should have recognized that
               there was a state statute under which relief for his client was
               possible and would have pursued that theory on appeal. An
               argument about the validity of the [S]tate’s effort to amend the
               indictment would have been materially stronger than the
               frivolous sufficiency-of-the-evidence point that [appellate
               counsel] raised. . . . [T]he sufficiency argument that [appellate
               counsel] made on Shaw’s behalf was so weak that pursuing it
               was the equivalent of filing no brief at all. . . . [Appellate
               counsel] should have learned of the potential claim while
               reviewing the trial record because trial counsel carefully
               preserved it by objecting (and, as Indiana case law requires,
               requesting a continuance. . . .) With that much accepted, there is

       Court of Appeals of Indiana | Opinion 02A03-1312-CR-505 | August 17, 2017   Page 8 of 23
               no further role for the federal judiciary: whether the Indiana
               appellate court would have been persuaded, or if not, whether the
               Indiana Supreme Court would have granted transfer, is
               immaterial.

       Id. at 914, 915, 916.


[13]   On the question of prejudice, the Seventh Circuit explained that:


               Strickland requires us to ask whether there is ‘a reasonable
               probability that, but for [appellate counsel’s] unprofessional
               errors, the result of [Shaw’s direct appeal] would have been
               different.’ See 466 U.S. at 694, 104 S.Ct. 2052. In assessing
               prejudice, we must bear in mind once again that we are making a
               comparative inquiry about counsel’s choices; we are not
               resolving any issue of state law, and we are not telling the
               Indiana judiciary how it should approach this issue. Prejudice
               exists, however, if counsel bypassed a nonfrivolous argument,
               that, if successful, would have resulted in the vacation of Shaw’s
               conviction . . . .


       Id. at 918.


[14]   When analyzing prejudice and whether there was a reasonable probability that

       but for appellate counsel’s error, the result of Shaw’s direct appeal would have

       been different, the Seventh Circuit acknowledged that at the time of Shaw’s

       appeal, no Indiana appellate court had ever invalidated an amendment under

       the statute. Nevertheless, the Seventh Circuit held that Shaw was prejudiced by

       appellate counsel’s deficiency. Id. at 919. To reach this determination of

       prejudice, the Seventh Circuit relied on Haak v. State, 695 N.E.2d 944 (Ind.

       1998) and Fajardo v. State, 859 N.E.2d 1201 (Ind. 2007).


       Court of Appeals of Indiana | Opinion 02A03-1312-CR-505 | August 17, 2017   Page 9 of 23
[15]   First, the Seventh Circuit interpreted Haak, which was decided before Shaw’s

       first direct appeal, to “h[o]ld unequivocally that if an amendment ‘was of

       substance, or prejudicial to the defendant even if of form, it was impermissible

       under the statute’ from 30 days before the omnibus date.” Shaw, 721 F.2d at

       911 (quoting Haak, 695 N.E.2d at 951). Second, the Seventh Circuit noted that

       four years after Shaw had lost his direct appeal, the Indiana Supreme Court

       revisited the issue of untimely amendments of substance in Fajardo, 859 N.E.2d

       at 1201. There, the trial court had allowed the State to add a second count of

       child molestation to the information after it concluded that the amendment

       would not prejudice Fajardo.3 However, the Indiana Supreme Court explained

       that “because the challenged amendment in this case sought to modify the

       original felony information in matters of substance, it was permissible only up

       to thirty days before the omnibus date,” regardless of prejudice. Id. As a result,

       the Indiana Supreme Court vacated Fajardo’s second conviction.4 Id.




       3
           This second count was based on different acts committed on a different day.

       4
           In Hurst v. State, 890 N.E.2d 88, 95 (Ind. Ct. App. 2008), trans. denied, we noted that:

                  The [Indiana] 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 any time before trial so long as the defendant’s rights are not prejudiced).
                  Thus, Fajardo was superseded by statute in less than four months. This prompt return to
                  pre-Fajardo law indicated the urgency in the legislature’s desire to negate the effects of
                  Fajardo.

       Although the legislature did not expressly provide for the retroactive application of the amended statute, this
       Court concluded that we were “confident this was the clear intent of such legislation.” Id.


       Court of Appeals of Indiana | Opinion 02A03-1312-CR-505 | August 17, 2017                          Page 10 of 23
[16]   Hypothesizing that Fajardo “offer[ed] some insight into what the state supreme

       court would have done in the period before the amendment,” the Seventh

       Circuit concluded that Shaw had demonstrated a “reasonable chance of success

       on appeal but for [appellate counsel’s] deficient performance.” Id. at 919.

       Concluding that Shaw had received ineffective assistance of appellate counsel,

       the Seventh Circuit explained as follows:

               Shaw is entitled to a new direct appeal. Should Indiana choose
               to grant this relief, instead of releasing Shaw outright, the Indiana
               appellate courts will be free to consider all pertinent issues of
               state law at that time. Because [appellate counsel’s] performance
               was deficient and Shaw suffered prejudice as a result, the
               decision of the district court is VACATED and the case is
               REMANDED with instructions to issue a writ of habeas corpus
               unless the State of Indiana grants Shaw a new appeal within 120
               days after issuance of the mandate.

       Id. at 919-20.


[17]   On December 19, 2013, after the Seventh Circuit had denied the State’s

       petitions for rehearing and rehearing en banc, the State filed under Shaw’s post-

       conviction appeal cause number an emergency notice of pending proceedings

       before the United States Supreme Court following federal habeas corpus

       proceedings. In that notice, the State asked this Court to grant Shaw a new

       direct appeal by January 3, 2014, which was 120 days from the date that the




       Court of Appeals of Indiana | Opinion 02A03-1312-CR-505 | August 17, 2017   Page 11 of 23
       Seventh Circuit had issued its appellate mandate. The State also asked this

       Court to hold the new appeal in abeyance so that it could pursue a writ of

       certiorari from the United States Supreme Court.


[18]   On December 30, 2013, the Clerk of the Supreme Court, Court of Appeals, and

       Tax Court (“the Clerk”) received Shaw’s motion for alternative relief, which

       Shaw claims was a response to the State’s notice. According to Shaw, his

       motion “raised questions of jurisdiction, res judicata, and judicial estoppel . . .

       [and] . . . opposed holding [Shaw’s] appeal in abeyance.” (Shaw’s Br. 16). Our

       docket entry reveals that the motion exceeded the page limit and did not

       contain a word count certificate. Because of the defects, Shaw’s motion was

       not officially filed.


[19]   The following day, December 31, 2013, this Court ordered the Clerk to open a

       direct appeal under a new appellate cause number and to hold that appeal in

       abeyance pending further order. We also ordered the State to file a status report

       regarding the certiorari proceedings and to give this Court notice of any ruling

       on the certiorari petition within three days receipt of any such ruling.


[20]   On January 3, 2014, the Clerk sent a notice of defect to Shaw regarding his

       motion for alternative relief. On January 13, 2014, Shaw filed a motion for

       relief from the appellate rules wherein he “requested that he be relieved from

       having to refile his motion with a word count because that would have served

       no useful purpose; he also provided a word count for the motion that was well

       under the 4,200 words provided by Indiana Appellate Rule 43(G)(2).” (Shaw’s


       Court of Appeals of Indiana | Opinion 02A03-1312-CR-505 | August 17, 2017   Page 12 of 23
       Br. 17). The appellate docket also reveals that on February 12, 2014, the Clerk

       issued a “notice of return” with respect to Shaw’s motion for alternative relief.

       Specifically, the docket provides that “[p]er standing instruction of the Court of

       Appeals, one (1) received-stamped copy of the Verified Motion for Alternative

       Relief has been retained in case file, all other copies returned.”


[21]   On June 17, 2014, after the United States Supreme Court had denied certiorari,

       the State filed a notice of termination of proceedings. Shortly thereafter, this

       Court remanded the case to the trial court with instructions to hold a hearing

       with Shaw present to advise him of his right to a new direct appeal and

       appointment of appellate counsel. In August 2014, this Court accepted the trial

       court’s order appointing counsel for Shaw’s new direct appeal. In February

       2015, Shaw asked the trial court for funds to investigate the juror’s questions

       during deliberations. After the trial court concluded that it did not have

       jurisdiction to grant the request, in March 2015, Shaw asked this Court for

       funds for an investigator. This Court denied the request. Shaw and the State

       have now filed their appellate briefs in this second appeal of Shaw’s 2001

       murder conviction. We now proceed to the merits of Shaw’s claim.


                                                    Decision
[22]   At the outset, we dispose of several preliminary matters. First, Shaw argues

       that this appeal should be dismissed because: (1) this Court “had no power to

       order a new appeal out of thin air,” (Appellee’s Br. 18); (2) res judicata bars a

       new trial where this Court decided that Shaw was not entitled to a new appeal

       in Shaw’s State post-conviction litigation; (3) the State was judicially estopped
       Court of Appeals of Indiana | Opinion 02A03-1312-CR-505 | August 17, 2017   Page 13 of 23
       from requesting the relief it opposed in Shaw’s State post-conviction litigation;

       and (4) the “correct relief for an ineffective assistance of counsel claim is a new

       trial, not a new appeal,” (Appellee’s Br. 21).


[23]   All of these arguments stem from the Seventh Circuit’s opinion that granted

       Shaw relief on his federal habeas petition. Specifically, it was the Seventh

       Circuit that offered the State the choice of either granting Shaw a new direct

       appeal or releasing him. If Shaw believed the Seventh Circuit’s order was in

       error, Shaw should have sought relief in the federal courts. Shaw’s attempts to

       undermine the Seventh Circuit’s order in state court amount to an

       impermissible collateral attack. See Ind. Dep’t of Envtl. Mgmt. v. Conard, 614

       N.E.2d 916, 922 (Ind. 1993) (“A collateral attack on a judgment is an attack

       made in a proceeding that has independent purpose other than to impeach or

       overturn the judgment, although impeaching or overturning the judgment may

       be necessary for the success of the motion.”); Dawson v. Estate of Ott, 796 N.E.2d

       1190, 1196 (Ind. Ct. App. 2003) (noting that an action in a state court that

       attempts to undermine a federal court decision is an impermissible collateral

       attack).


[24]   Shaw also challenges two rulings made by this Court. Specifically, Shaw first

       argues that he was “effectively denied his federal right to a free transcript to

       pursue this appeal” when this Court denied his request for funds to hire an

       investigator to help him “reconstruct the record with respect to jury questions

       during deliberations.” (Shaw’s Br. 20, 21). Shaw’s request for funds effectively

       amounted to a desired attempt to impeach the jury’s verdict. However, it has

       Court of Appeals of Indiana | Opinion 02A03-1312-CR-505 | August 17, 2017   Page 14 of 23
long been established in Indiana that a jury’s verdict may not be later

impeached by the testimony or affidavit of the jurors who returned it.5 Pattison

v. State, 958 N.E.2d 11, 21 (Ind. Ct. App. 2011), trans. denied. The Indiana

Supreme Court has explained the policy concerns behind this rule as follows:

           If this Court were to permit individual jurors to make affidavits
           or give testimony disclosing the manner of deliberation in the
           jury room and their version of the reasons for rendering a
           particular verdict, there would be no reasonable end to litigation.
           Jurors would be harassed by both sides of litigation and find




5
    Although this is a generally recognized rule, Indiana Evidence Rule 606(b) provides three exceptions:

           (1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict
           or indictment, a juror may not testify about any statement made or incident that occurred
           during the jury’s deliberations; the effect of anything on that juror’s or another juror’s
           vote; or of any juror’s mental processs concerning the verdict or indictment. The court
           may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.

           (2) Exceptions. A juror may testify about whether:

                    (A)   any juror’s drug or alcohol use;
                    (B)   extraneous prejudicial information;
                    (C)   an outside influence was improperly brought to bear on any juror; or
                    (D)   a mistake was made in entering the verdict on the verdict form.

In addition, in Pena-Rodriguez v. Colorado, 137 S.Ct. 855, 869 (2017), the United States Supreme Court held
that:

           [W]here a juror makes a clear statement that indicates he or she relied on racial
           stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires
           that the no-impeachment rule give way in order to permit the trial court to consider the
           evidence in the juror’s statement and any resulting denial of the jury trial guarantee.

Because Shaw raises none of these exceptions, we need not address them.




Court of Appeals of Indiana | Opinion 02A03-1312-CR-505 | August 17, 2017                             Page 15 of 23
                themselves in a contest of affidavits and counter-affidavits and
                arguments and rearguments as to why and how a certain verdict
                was reached. Such an unsettled state of affairs would be a
                disservice to the parties, litigant and an unconscionable burden
                upon citizens who serve on juries.


       Stinson v. State, 262 Ind. 189, 198, 313 N.E.2d 699, 704 (1974).


[25]   Here, at Shaw’s trial, when the jurors had a question during deliberations, the

       trial court sent them a note and told them that it could not answer any

       questions. After the jury had delivered its verdict, the trial court stated that the

       jury probably now understood that had the trial court answered its questions,

       the court would have “essentially [been] tampering with the [jury’s]

       deliberations.” (Tr. After Closing Statements 20). Shaw requested state funds

       to investigate what had occurred during deliberations, which would have been

       improper. Accordingly, this Court did not improperly deny Shaw’s request for

       funds.


[26]   Shaw also argues that this Court improperly failed to rule on his motions for

       alternative relief and for relief from the appellate rules. Specifically, Shaw

       contends that because “[n]either motion has apparently . . . been considered by

       this Court, [Shaw was not only] not given an opportunity to be heard at a

       meaningful time in a meaningful manner, he was given no opportunity to be

       heard at all.” (Shaw’s Br. 30). However, neither of Shaw’s motions was ever

       officially filed. The motion for alternative relief was defective because it

       exceeded the page limit and did not contain a word count certificate. The Clerk

       sent a notice of defect to Shaw regarding this motion; however Shaw’s

       Court of Appeals of Indiana | Opinion 02A03-1312-CR-505 | August 17, 2017   Page 16 of 23
       subsequent motion for relief from the appellate rules did not correct the defect

       and was returned to Shaw. Because neither of these motions was officially

       filed, this Court had nothing to rule on, and we find no error.


[27]   We now turn to the merits of Shaw’s direct appeal as ordered by the Seventh

       Circuit. Shaw contends that the trial court erred when it allowed the State to

       amend the charging information seventeen months after the omnibus date. Our

       starting point is INDIANA CODE § 35-34-1-5, which, the version in effect at the

       time of Shaw’s offense, provided:

               (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:


                        (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 of Appeals of Indiana | Opinion 02A03-1312-CR-505 | August 17, 2017      Page 17 of 23
               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.


[28]   Shaw argues that the “State’s amendment, substituting a murder charge for

       aggravated battery, changed both the offense charged and the penalty and was

       therefore impermissibly late under INDIANA CODE § 35-34-1-5.” (Shaw’s Br.

       33). The gravamen of this argument is that the amendment was substantive

       and that it was untimely because it was filed seventeen months after the

       omnibus date.


[29]   However, even assuming that the amendment to Shaw’s information was

       substantive, cases decided at the time of Shaw’s 2003 direct appeal regularly

       interpreted INDIANA CODE § 35-34-1-5 to allow substantive amendments so

       long as the substantial rights of the defendant were not prejudiced. See

       Townsend v. State, 753 N.E.2d 88, 94 (Ind. Ct. App. 2001), 6 abrogated by Fajardo,



       6
        Townsend recognized that in Haak, 695 N.E.2d at 951, the Indiana Supreme Court had stated that
       substantive amendments may not occur after specified times in advance of the omnibus date as provided in
       subsection (b). The Seventh Circuit concluded that this statement was an “unequivocal holding.” Shaw, 721
       N.E.2d at 911. We disagree with this conclusion for two reasons. First, we find that the Indiana Supreme
       Court’s statement was dicta where the amendment was found to be one of form rather than substance. See
       Haak, 695 N.E.2d at 951. Second, we agree with Townsend, 753 N.E.2d at 94, that:

               [W]ere we to read Haak as prohibiting any substantive changes after the specified times in
               subsection (b), the provisions for a continuance would be largely unnecessary. See State v.
               Gullion, 546 N.E.2d 121, 123 (Ind. Ct. App. 1989) (“To hold that [I.C. § 35-34-1-5] does
               not permit charges to be amended for other than form anytime after 30 days prior to the
               omnibus date would make subsection (d) superfluous.”).


       Court of Appeals of Indiana | Opinion 02A03-1312-CR-505 | August 17, 2017                       Page 18 of 23
       859 N.E.2d at 1206-07, (citing Kindred v. State, 540 N.E.2d 1161, 1170 (Ind.

       1989), abrogated by Fajardo, 859 N.E.2d at 1206-07); and Todd v. State, 566

       N.E.2d 67, 69 (Ind. Ct. App. 1991), abrogated by Fajardo, 859 N.E.2d at 1206-

       07). See also Brown v. State, 728 N.E.2d 876, 879-80 (Ind. 2000), abrogated by

       Fajardo, 859 N.E.2d at 1206-07; Wright v. State, 593 N.E.2d 1192, 1197 (Ind.

       1992), cert. denied, 506 U.S. 1001 (1992), abrogated by Fajardo, 859 N.E.2d at

       1206-07; Haymaker v. State, 528 N.E.2d 83 (Ind. 1988), abrogated by Fajardo, 859

       N.E.2d at 1206-07; Hegg v. State, 514 N.E.2d 1061 (Ind. 1987), abrogated by

       Fajardo, 859 N.E.2d at 1206-07; Prewitt v. State, 761 N.E.2d 862 (Ind. Ct. App.

       2002); Tripp v. State, 729 N.E.2d 1061, 1064 (Ind. Ct. App. 2000), abrogated by

       Fajardo, 859 N.E.2d at 1206-07.


[30]   Both Prewitt and Tripp are instructive in Shaw’s second direct appeal. In the

       Prewitt case, which was decided one year before Shaw’s first direct appeal,

       Prewitt asked a police officer working undercover at a public housing complex

       if the officer would accept his trade of steaks and cigarettes for cocaine. The

       officer followed Prewitt to his van, and when Prewitt’s accomplice showed the

       officer the steaks and cigarettes, the officer arrested Prewitt and his accomplice.




       Townsend further pointed out that only a few months prior to Haak, the Indiana Supreme Court had stated in
       Sides v. State, 693 N.E.2d 1310, 1313 (Ind. 1998), abrogated by Fajardo, 859 N.E.2d at 1206-07, that
       “[u]ltimately the question [was] whether the defendant had a reasonable opportunity to prepare for and
       defend against the charges.”




       Court of Appeals of Indiana | Opinion 02A03-1312-CR-505 | August 17, 2017                     Page 19 of 23
       Prewitt was charged with Class C felony conspiracy to possess cocaine in

       January 2000. The omnibus date was set for March 14, 2000. On November

       15, 2000, eight months after the omnibus date, the State filed a motion to

       amend the information to add Count II, Class C felony attempted possession of

       cocaine. The State explained that the amendment “was based upon the very

       same fact circumstances. We’re not alleging new facts. We are simply alleging

       an alternative [to] the conspiracy conviction . . . the Jury could also find that it

       legally fits the definition of an Attempt crime . . . .” Id. at 867. The trial court

       granted the motion after a hearing. At a pre-trial hearing on November 27,

       2000, the State orally moved again to amend the information. The substance of

       the charges was not changed by this second amendment; however, the charges

       were elevated from Class C felonies to Class B felonies due to the proximity to

       the family housing unit. The trial court granted the State’s request to amend

       the charges, and Prewitt’s trial on the two Class B felonies began six weeks later

       after several delays. A jury convicted Prewitt of both charges; however, the

       conspiracy verdict was later vacated by the trial court.


[31]   On appeal, Prewitt argued that the trial court had erred when it allowed the

       State to amend the charging information to add an additional count eight

       months after the omnibus date and two weeks prior to a scheduled trial date.

       This Court acknowledged the general rule that an information may not be

       amended to change the theory of the case or the identity of the charged offense.

       Id. at 868. However, we further pointed out that “an amendment that does not

       prejudice the defendant’s substantial rights, including the right to notice and an


       Court of Appeals of Indiana | Opinion 02A03-1312-CR-505 | August 17, 2017   Page 20 of 23
       opportunity to be heard, is permissible.” Id. We pointed out that Prewitt had

       been afforded notice of the proposed amendment and an opportunity to be

       heard. Id. In addition, the facts supporting the new charge were the same facts

       supporting the original charge, and Prewitt had been afforded nearly two more

       months to prepare. Id. at 868-69. We concluded that Prewitt had failed to

       demonstrate that his substantial rights were affected and that the trial court did

       not err in allowing the State to amend the charging information to include

       Count II, attempted possession of cocaine. Id. at 869.


[32]   Similarly, in the Tripp case, Tripp was charged with operating a motor vehicle

       with a blood alcohol content greater than .10%. After the omnibus date and

       twenty-eight days before trial, the State moved to amend the charging

       information to add a count of operating a vehicle while intoxicated. Before

       trial, Tripp filed a motion to dismiss the amended count, which the trial court

       denied. Tripp subsequently filed a motion to dismiss the first count and to

       certify for interlocutory appeal the issue of whether the information was

       properly amended to include a second count.7 The trial court granted Tripp’s

       motion to dismiss Count I of the information, leaving only the amended Count

       II. The trial court also certified the issues for interlocutory appeal.


[33]   On interlocutory appeal, Tripp argued that the trial court had erred in granting

       the State’s motion to amend the information. As in Prewitt, we acknowledged




       7
           Tripp also sought an interlocutory appeal of the trial court’s denial of his request for a jury trial.


       Court of Appeals of Indiana | Opinion 02A03-1312-CR-505 | August 17, 2017                                Page 21 of 23
       the general rule that an information may not be amended so as to change the

       theory of the case or the identity of the offense charges. Id. at 1064. However,

       we further noted that “an amendment that does not prejudice substantial rights

       of the defendant is permissible. These substantial rights include the right to

       notice and an opportunity to be heard and contest the amendment.” Id. The

       requirement of an opportunity to be heard is satisfied when the defendant is

       given adequate time to object and request a hearing after proper notice. Id. at

       1065. We also pointed out that for substantive amendments, the court should

       grant a continuance, if requested, to allow the defendant adequate time to

       prepare for trial. Id. at 1064.


[34]   After analyzing Tripp’s interlocutory claim, we concluded that the request to

       amend the information by including an additional charge was an amendment of

       substance as the change was essential to making a valid charge. Id. We noted

       that such amendments were permissible provided the substantial rights noted

       above were not offended. Id. Ultimately the question was whether the

       defendant had a reasonable opportunity to prepare for and defend against the

       charges. Id. at 1065. We concluded that Tripp’s substantial rights were not

       prejudiced by the amendment as he was given notice of the amended

       information, he was given an opportunity to challenge it, and the trial court

       continued the trial to give Tripp adequate time to prepare his defense to the new

       charge. Id. at 1064-65. Having decided the interlocutory issues, we remanded

       the case to the trial court to proceed to a jury trial. Id. at 1066.




       Court of Appeals of Indiana | Opinion 02A03-1312-CR-505 | August 17, 2017   Page 22 of 23
[35]   Turning now to the facts of this case, the State initially charged Shaw with

       Class B felony aggravated battery. The trial court set the omnibus date for July

       21, 2000. On November 30, 2001, apparently after learning how Shaw’s role in

       King’s beating contributed to his death, the State filed a motion to amend the

       charging information to charge Shaw with murder rather than aggravated

       battery. Shaw had notice of the amendment, and his trial counsel objected to it.

       The trial court granted the State’s motion after a hearing. The trial court also

       granted Shaw’s motion for a continuance, and Shaw was given an additional

       two months to prepare for trial.


[36]   Here, as in Prewitt and Tripp, Shaw was given notice of the amendment, an

       opportunity to challenge it, and adequate time to prepare for trial. In addition,

       as in Prewiit, the facts supporting the new charge were the same facts supporting

       the original charge. Further, Shaw’s defense did not change. Whether he was

       charged with aggravated battery or murder, Shaw argued that he was not at the

       scene and did not participate in beating King. Shaw has failed to demonstrate

       prejudice to his substantial rights resulting from the untimeliness of the

       amendment. The trial court did not err when it allowed the State to amend the

       charging information.


[37]   Affirmed.


       Baker, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 02A03-1312-CR-505 | August 17, 2017   Page 23 of 23
