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.




Court of Appeals of Indiana | Memorandum Decision 82A01-1611-PC-2460 | July 13, 2017          Page 1 of 12
                                                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

      Court of Appeals of Indiana | Memorandum Decision 82A01-1611-PC-2460 | July 13, 2017   Page 2 of 12
              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….
      Court of Appeals of Indiana | Memorandum Decision 82A01-1611-PC-2460 | July 13, 2017   Page 3 of 12
      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


      Court of Appeals of Indiana | Memorandum Decision 82A01-1611-PC-2460 | July 13, 2017   Page 4 of 12
      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


      Court of Appeals of Indiana | Memorandum Decision 82A01-1611-PC-2460 | July 13, 2017   Page 5 of 12
       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.



       Court of Appeals of Indiana | Memorandum Decision 82A01-1611-PC-2460 | July 13, 2017   Page 6 of 12
                                           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


       Court of Appeals of Indiana | Memorandum Decision 82A01-1611-PC-2460 | July 13, 2017   Page 7 of 12
       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.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1611-PC-2460 | July 13, 2017   Page 8 of 12
[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.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1611-PC-2460 | July 13, 2017           Page 9 of 12
                                                  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
       Court of Appeals of Indiana | Memorandum Decision 82A01-1611-PC-2460 | July 13, 2017   Page 10 of 12
       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.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1611-PC-2460 | July 13, 2017            Page 11 of 12
       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.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1611-PC-2460 | July 13, 2017   Page 12 of 12
