MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                              FILED
regarded as precedent or cited before any                                     Feb 08 2019, 8:17 am

court except for the purpose of establishing                                       CLERK
                                                                              Indiana Supreme Court
the defense of res judicata, collateral                                          Court of Appeals
                                                                                   and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Andrew Bernlohr                                          Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jon Southwood,                                           February 8, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1245
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Steven J. Rubick,
Appellee-Plaintiff.                                      Judge Pro Tempore
                                                         Trial Court Cause No.
                                                         49G01-1609-F5-37854



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1245 | February 8, 2019                      Page 1 of 6
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Jon Southwood (Southwood), appeals his adjudication as

      a habitual offender, Ind. Code § 35-50-2-8.


[2]   We affirm.


                                                    ISSUE
[3]   Southwood presents one issue on appeal, which we restate as: Whether the

      trial court abused its discretion by allowing the State to file an untimely habitual

      offender enhancement charge against Southwood.


                      FACTS AND PROCEDURAL HISTORY
[4]   On September 27, 2016, the State filed an Information, charging Southwood

      with Level 5 felony robbery. About a month later, on November 28, 2016, the

      State filed a Notice of Intent to File Habitual Offender Enhancement, indicating

      that it would file a habitual offender charge “if plea negotiations” were

      “unsuccessful.” (Appellant’s App. Vol. II, p. 54). By January of 2018, no plea

      agreement had been reached. Southwood thereafter waived his right to a jury

      trial.


[5]   A bench trial was then scheduled for April 13, 2018. The day before

      Southwood’s trial, on April 12, 2018, the State filed a habitual offender charge,

      alleging that Southwood had accumulated two prior unrelated felony

      convictions—a Class C felony robbery in 2006 and a Class D felony possession

      of paraphernalia in 2012. Southwood objected, arguing that the State had failed

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1245 | February 8, 2019   Page 2 of 6
      to show “good cause” for the belated filing. (Appellant’s App. Vol. II, p. 79).

      At the start of his bench trial, the trial court denied Southwood’s motion after

      finding that Southwood was aware that the State would file such a charge in

      November 2016.


[6]   At the conclusion of the first phase, the trial court found Southwood guilty of

      the Level 5 felony robbery charge. During the second phase, the trial court

      found that Southwood was an habitual offender. On May 1, 2018, the trial

      court conducted a sentencing hearing and sentenced Southwood to a term of

      two years for the robbery conviction and enhanced that sentence by two years

      due to Southwood’s habitual offender status.


[7]   Southwood now appeals. Additional facts will be provided as necessary.


                              DISCUSSION AND DECISION
[8]   Southwood argues that the trial court abused its discretion when it allowed the

      State to file a belated habitual offender charge against him. Indiana Code

      section 35-34-l-5(e) provides:


              An amendment of an indictment or information to include a
              habitual offender charge under [I.C. § 35-50-8] must be made at
              least thirty (30) days before the commencement of trial.
              However, upon a showing of good cause, the court may permit
              the filing of a habitual offender charge at any time before the
              commencement of the trial if the amendment does not prejudice
              the substantial rights of the defendant. If the court permits the
              filing of a habitual offender charge less than thirty (30) days
              before the commencement of trial, the court shall grant a
              continuance at the request of the:

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1245 | February 8, 2019   Page 3 of 6
               (1) state, for good cause shown; or


               (2) defendant, for any reason.


[9]    Here, the habitual offender charge was filed one day before trial and was

       therefore untimely. Although tardy, we cannot agree with Southwood that the

       State failed to show good cause for the filing.


[10]   We have previously noted that the purpose of Indiana Code section 35-34-1-5(e)

       is to allow a defendant sufficient time to prepare a defense for an habitual

       offender charge. Land v. State, 802 N.E.2d 45, 53 (Ind. Ct. App. 2004), trans.

       denied. Towards that end, section 35-34-1-5(e) also provides that the trial court

       may permit the filing of an habitual offender charge at any time before the

       commencement of trial “upon a showing of good cause.” Also, a defendant

       must show that he or she was prejudiced by the belated filing. Jackson v. State,

       938 N.E.2d 29, 39 (Ind. Ct. App. 2010), trans. denied.


[11]   Once a trial court finds good cause, we review that decision for an abuse of

       discretion. Id. An abuse of discretion occurs only where the decision is clearly

       against the logic and effect of the facts and circumstances. Id. The trial court is

       not required to enter a specific finding concerning good cause, and we will

       determine that the trial court impliedly found good cause if it permits the State

       to file an habitual offender Count. Jackson, 938 N.E.2d at 39.


[12]   Southwood was charged for the Level 5 felony robbery on September 27, 2016,

       and a month later, on November 28, 2016, the State filed its Notice of Intent to


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1245 | February 8, 2019   Page 4 of 6
       File Habitual Offender Enhancement charge against Southwood if a plea deal

       was not successful. By January 2018, no plea had been reached by the parties.

       Southwood thereafter waived his right to a jury trial and a bench trial was

       scheduled. A day before his bench trial, on April 12, 2018, the State filed the

       habitual offender charge. At the start of his bench trial, Southwood again

       objected to the State’s untimely filing, but the trial court noted that Southwood

       was aware that the State would make such a filing in November 2016 if

       Southwood had not accepted the State’s plea offer. In Land we noted that

       evidence of ongoing plea negotiations may constitute good cause for a belated

       habitual offender filing. Land, 802 N.E.2d at 53. Thus, we conclude that there

       was good cause for the belated filing. See also Williams v. State, 735 N.E.2d 785,

       789 (Ind. 2000) (finding good cause where State and defendant were involved in

       plea negotiations “up until the date the habitual offender information was

       filed”).


[13]   Moreover, Southwood does not establish that he was prejudiced as a result of

       the belated filing. See Jackson, 938 N.E.2d at 39. The State withheld the filing

       of the habitual offender charge due to the plea negotiations. Southwood had

       been on notice for an entire year that the habitual offender charge would

       possibly be filed, and Southwood does not argue that this was not adequate

       time to allow him to prepare his defense.


[14]   Based on the foregoing, we conclude that the trial court did not abuse its

       discretion when it found that the State had demonstrated good cause for its late

       filing of the habitual offender charge.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1245 | February 8, 2019   Page 5 of 6
                                             CONCLUSION
[15]   In sum, we conclude that the trial court did not abuse its discretion when it

       allowed the State to belatedly file the habitual offender charge against

       Southwood.


[16]   Affirmed.


[17]   Kirsch, J. and Robb, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1245 | February 8, 2019   Page 6 of 6
