                                                                     FILED
                                                                Sep 21 2016, 7:54 am

                                                                     CLERK
                                                                 Indiana Supreme Court
                                                                    Court of Appeals
                                                                      and Tax Court




      ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Stephen T. Owens                                          Gregory F. Zoeller
      Public Defender of Indiana                                Attorney General of Indiana
      William D. Polansky                                       Katherine Modesitt Cooper
      Deputy Public Defender                                    Deputy Attorney General
      Indianapolis, Indiana                                     Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Charles R. Cole, III,                                     September 21, 2016

      Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                82A01-1602-PC-304
              v.                                                Appeal from the Vanderburgh Circuit
                                                                Court.
                                                                The Honorable Robert J. Pigman,
      State of Indiana,                                         Special Judge.
      Appellee-Respondent.                                      Cause No. 82C01-1006-PC-10




      Barteau, Senior Judge


                                       Statement of the Case
[1]   Charles R. Cole, III, appeals the denial of his petition for post-conviction relief.

      We affirm.




      Court of Appeals of Indiana | Opinion 82A01-1602-PC-304 | September 21, 2016            Page 1 of 11
                                                      Issue
[2]   Cole raises one issue, which we restate as: whether the post-conviction court

      erred in rejecting his claim of ineffective assistance of trial counsel.


                                Facts and Procedural History
[3]   The facts, as stated in Cole’s direct appeal, are as follows:

              On May 1, 1995, Cole, Christine Goodwin, and James Thomas
              planned to rob First Federal Savings Bank in Vanderburgh
              County. Goodwin drove an Oldsmobile, and Cole and Thomas
              drove a red Toyota to the bank. Cole and Thomas wore ski
              masks and Cole was armed with a handgun. While Goodwin
              waited in the Oldsmobile, Cole and Thomas entered the bank,
              Cole jumped onto the teller’s counter, pointed a gun at the teller’s
              head and demanded money. Cole and Thomas left the bank with
              $3000, and Goodwin drove them to the home of Angel Cole,
              Cole’s sister.
              Cole and Goodwin planned to rob another bank on May 27,
              1995. However, on the day of the robbery, the group decided
              that Goodwin would not participate. As a result, Michael Grey
              took Goodwin’s place in assisting with the robbery. Cole and
              Grey drove the Oldsmobile and the red Toyota to Union Federal
              Savings Bank. As in the first robbery, Cole wore a ski mask and
              was armed with a handgun. Again, he jumped onto the teller’s
              counter and demanded money. He then fled with $33,000 to
              Angel Cole’s house.
              On June 24, 1995, Cole, Goodwin and Thomas drove the
              Oldsmobile to the National City Bank intending to rob it.
              Again, Cole was wearing a ski mask and was armed with the
              same handgun he had used in the previous two robberies.
              However, after arriving at the bank, they found that it was
              closed.



      Court of Appeals of Indiana | Opinion 82A01-1602-PC-304 | September 21, 2016   Page 2 of 11
               On June 26, 1995, Cole and Goodwin drove to Citizens Bank
               in the Oldsmobile. Cole then robbed the bank in the same
               manner as he had robbed the other banks. After Cole and
               Goodwin fled the bank, they drove to Angel Cole’s house.
               Later, as Goodwin left the sister’s house, the police arrested
               her for the most recent robbery. Goodwin confessed to the
               police that she and Cole had committed several robberies and
               told the police that they could find Cole at his father’s house.
               The police then arrested Cole at his father’s house. In
               addition, the police obtained consent from the father to search
               the premises. During this search, they found several firearms.

      Cole v. State, Cause No. 82A05-9610-CR-439, *2-3 (Ind. Ct. App. Dec. 8, 1997).


[4]   The State initially charged Cole with two counts of Class B felony robbery and

      one count of Class B felony attempted robbery. After the omnibus date had

      passed, Cole filed a motion to sever the charges and the State amended the

      charging information to add a third count of Class B felony robbery. Cole did

      not object to the amendment. The trial court later denied Cole’s motion to

      sever.


[5]   A jury determined Cole was guilty of the three counts of robbery but not guilty

      of attempted robbery, and the trial court sentenced Cole accordingly. Cole

      appealed, claiming the trial court erred in denying his motion to sever and in

      admitting evidence found during a search of his father’s house. The Court

      affirmed his convictions. See id.


[6]   Cole filed a petition for post-conviction relief, presenting three claims of

      ineffective assistance of trial counsel. The post-conviction court held an

      evidentiary hearing. During the hearing, Cole submitted affidavits from his two
      Court of Appeals of Indiana | Opinion 82A01-1602-PC-304 | September 21, 2016   Page 3 of 11
      trial attorneys. After an evidentiary hearing, the post-conviction court issued

      findings of fact and conclusions thereon denying Cole’s petition in its entirety.


                                    Discussion and Decision
[7]   Cole argues the post-conviction court erred by rejecting one of his claims of

      ineffective assistance of trial counsel. Specifically, he contends his attorneys

      should have objected to the State’s amendment of the charging information to

      add an additional count of robbery because the amendment was untimely. The

      State responds that the prosecutor was allowed under then-existing caselaw to

      file the amendment, so Cole’s counsel did not render ineffective assistance by

      declining to object.


[8]   Post-conviction proceedings are civil in nature and the petitioner must prove his

      or her claims by a preponderance of the evidence. Wilkes v. State, 984 N.E.2d

      1236, 1240 (Ind. 2013). When a petitioner appeals from the denial of post-

      conviction relief, he or she appeals from a negative judgment. Pannell v. State,

      36 N.E.3d 477, 485 (Ind. Ct. App. 2015), trans. denied. We may not reverse the

      judgment of the post-conviction court unless the evidence as a whole leads to a

      decision opposite that of the post-conviction court. Id. Stated differently, the

      appellant must convince the Court there is no way within the law that the post-

      conviction court could have reached the decision it did. Wilkes, 984 N.E.2d at

      1240. We accept the post-conviction court’s findings of fact unless they are

      clearly erroneous, but we do not defer to the court’s conclusions of law.




      Court of Appeals of Indiana | Opinion 82A01-1602-PC-304 | September 21, 2016   Page 4 of 11
       Pannell, 36 N.E.3d at 485. Here, the parties do not point to any evidentiary
                                                                        1
       disputes and instead present a question of law.


[9]    We evaluate claims of ineffective assistance under the two-part test originally

       set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d

       674 (1984). A petitioner must demonstrate that his or her counsel performed

       deficiently, resulting in prejudice. Rondeau v. State, 48 N.E.3d 907, 916 (Ind. Ct.

       App. 2016), trans. denied. Counsel renders deficient performance when his or

       her representation fails to meet an objective standard of reasonableness. Id.

       Prejudice exists when a petitioner demonstrates that, if not for counsel’s

       deficient performance, there is a reasonable probability that the result would

       have been different. Id. A petitioner must prove both parts of the test, and

       failure to do so will cause the claim to fail. Mallory v. State, 954 N.E.2d 933,

       936 (Ind. Ct. App. 2011).


[10]   We strongly presume counsel provided adequate assistance and exercised

       reasonable professional judgment in all significant decisions. Morales v. State, 19

       N.E.3d 292, 297 (Ind. Ct. App. 2014), trans. denied. Counsel’s conduct is

       assessed based on facts known at the time and not through hindsight. Id.

       Where, as here, a claim of ineffective assistance is based on counsel’s failure to




       1
         Cole argues in his Reply Brief that the State has failed to specifically support the post-conviction court’s
       legal reasoning in this appeal. Cole further concludes that, due to the State’s failure to defend the post-
       conviction court’s conclusions of law, he need only present a prima facie case to prevail. We disagree. As
       noted above, the relevant issue in this appeal is purely legal in nature, and we are not bound by the post-
       conviction court’s interpretation of the law.

       Court of Appeals of Indiana | Opinion 82A01-1602-PC-304 | September 21, 2016                        Page 5 of 11
       object, the petitioner must demonstrate that if an objection had been made, the

       trial court would have had no choice but to sustain it. Little v. State, 819 N.E.2d

       496, 506 (Ind. Ct. App. 2004), trans. denied.


[11]   At the time Cole committed his crimes, the statute that governed the

       amendment of a charging information provided, in relevant part:

               (a) An indictment or information which charges the commission
               of an offense may not be dismissed but may be amended on
               motion by the prosecuting attorney at any time because of any
               immaterial defect, including:
               (1) any miswriting, misspelling, or grammatical error;
               (2) any misjoinder of parties defendant or offenses charged;
               (3) the presence of any unnecessary repugnant allegation;
               (4) the failure to negate any exception, excuse, or provision
               contained in the statute defining the offense;
               (5) the use of alternative or disjunctive allegations as to the acts,
               means, intents, or results charged;
               (6) any mistake in the name of the court or county in the title of
               the action, or the statutory provision alleged to have been
               violated;
               (7) the failure to state the time or place at which the offense was
               committed where the time or place is not of the essence of the
               offense;
               (8) the failure to state an amount of value or price of any matter
               where that value or price is not of the essence of the offense; or
               (9) any other defect which does not prejudice the substantial
               rights of the defendant.
               (b) The indictment or information may be amended in matters of
               substance or form, and the names of material witnesses may be
               added, by the prosecuting attorney, upon giving written notice to
               the defendant, at any time up to:
       Court of Appeals of Indiana | Opinion 82A01-1602-PC-304 | September 21, 2016    Page 6 of 11
               (1) thirty (30) days if the defendant is charged with a felony; or
               (2) fifteen (15) days if the defendant is charged only with one (1)
               or more misdemeanors;
               before the omnibus date. When the information or indictment is
               amended, it shall be signed by the prosecuting attorney.
               (c) Upon motion of the prosecuting attorney, the court may, at
               any time before, during, or after the trial, permit an amendment
               to the indictment or information in respect to any defect,
               imperfection, or omission in form which does not prejudice the
               substantial rights of the defendant.
               (d) Before amendment of any indictment or information other
               than amendment as provided in subsection (b) of this section, the
               court shall give all parties adequate notice of the intended
               amendment and an opportunity to be heard. Upon permitting
               such amendment, the court shall, upon motion by the defendant,
               order any continuance of the proceedings which may be
               necessary to accord the defendant adequate opportunity to
               prepare his defense.
       Ind. Code § 35-34-1-5 (1993).


[12]   Cole claims: (1) the amendment of the charging information to add another

       robbery charge was a matter of substance, not form; and (2) the amendment

       was untimely because he was charged with a felony, but the prosecutor

       submitted the amendment after the deadline set forth in subsection (b) of the

       statute. As a result, Cole reasons his attorney should have objected to the late

       amendment, which he believes would have resulted in the amendment being

       rejected and the dismissal of one of the charges for which he was later

       convicted. The State does not dispute that the amendment was of substance

       rather than form and that the prosecutor filed the amendment after the omnibus

       date. Instead, the State argues that caselaw in effect at that time permitted
       Court of Appeals of Indiana | Opinion 82A01-1602-PC-304 | September 21, 2016   Page 7 of 11
       substantive amendments to the charging information after the statutory

       deadline, and Cole’s counsel did not render deficient performance by failing to

       object.


[13]   In Fajardo v. State, 859 N.E.2d 1201, 1204-06 (Ind. 2007), the Indiana Supreme

       Court considered the legislative history and prior judicial application of Ind.

       Code § 35-34-1-5, including during the period of time when Cole committed his

       crimes. The Court noted that the statute clearly required that all amendments

       as to substance must be filed no later than thirty days before the omnibus date

       in felony cases. Id. at 1206. Despite the statutory language, the Court noted,

       “Ensuing case law, however, has been inconsistent and conflicting, often

       reflecting the practice and procedure under prior statutes, or imprecisely

       disregarding the subsection 5(b) timeliness requirement for amendments to

       substance in favor of the absence of prejudice requirement that subsections

       5(a)(9) and 5(c) apply only to amendments of form.” Id.


[14]   The Court further stated:

               Several cases have permitted amendments related to matters of
               substance simply on grounds that the changes did not prejudice
               the substantial rights of the defendant, without regard to whether
               or not the amendments were untimely. Several other cases
               likewise have not focused upon whether the challenged
               amendment was one of form or substance, but have employed
               components of the substance/form test (whether defense equally
               available and evidence equally applicable, and whether
               amendment not essential to making a valid charge) to assess
               whether the defendant’s substantial rights were prejudiced, which
               is not a controlling factor for permitting substantive amendments.


       Court of Appeals of Indiana | Opinion 82A01-1602-PC-304 | September 21, 2016   Page 8 of 11
                The methodology employed in the cases identified in this
                paragraph does not comply with Indiana Code § 35-34-1-5.

       Id. at 1206-07 (citations and footnotes omitted).


[15]   Thus, in Fajardo, the Court disapproved of nineteen Indiana Supreme Court

       and Court of Appeals cases over the previous twenty years where the plain

       language of Indiana Code section 35-34-1-5(b) had been disregarded. The

       Court further clarified that, going forward, the timeliness requirement for filing
                                                                    2
       substantive amendments must be followed. The discussion in Fajardo serves to

       emphasize that, at the time Cole faced his criminal charges, substantive

       amendments that added additional charges were permitted even if the State

       submitted the amendments after the statutory deadline. See, e.g., Tripp v. State,

       729 N.E.2d 1061, 1065 (Ind. Ct. App. 2000) (amendment of information to add

       a new charge after omnibus date was permissible) (abrogated by Fajardo); Todd

       v. State, 566 N.E.2d 67, 69-70 (Ind. Ct. App. 1991) (amendment of information

       to add new charges on the day of trial was permissible) (abrogated by Fajardo).


[16]   Further, Cole concedes, “there was no case at the time [he committed his

       crimes] reversing a conviction for an untimely amendment of substance.”

       Appellant’s Br. p. 15. Given the existence of appellate decisions affirming trial

       court rulings permitting late, substantive amendments to a charging




       2
         After the Indiana Supreme Court issued Fajardo, the General Assembly amended Indiana Code § 35-34-1-5
       to state that a prosecutor may amend the charging complaint, even as to matters of substance, at any time
       before trial so long as the amendment does not prejudice the defendant’s substantial rights. See Hurst v. State,
       890 N.E.2d 88, 93 (Ind. Ct. App. 2008), trans. denied.

       Court of Appeals of Indiana | Opinion 82A01-1602-PC-304 | September 21, 2016                        Page 9 of 11
       information, Cole has failed to demonstrate that if Cole’s attorney had objected

       to the late amendment, the trial court “would have had no choice but to

       sustain” the objection. Little, 819 N.E.2d at 506. As a result, Cole has failed to

       establish that his trial counsel performed deficiently.


[17]   Cole cites Fisher v. State, 810 N.E.2d 674 (Ind. 2004), in support of his claim

       that his trial counsel should have objected to the amendment even though the

       caselaw at that time was unclear. In Fisher, a post-conviction petitioner claimed

       ineffective assistance of direct appeal counsel, arguing his counsel should have

       challenged the trial court’s rejection of his proposed jury instruction on lesser

       included offenses. Fisher argued the jury instruction issue was a stronger claim

       than the claims counsel actually presented. The Indiana Supreme Court noted

       that the law governing instructions for lesser included offenses was “in a state of

       flux” at the time of Fisher’s trial. Id. at 678. Nevertheless, the Court concluded

       Fisher’s appellate counsel should have raised the claim because the claim “was

       both significant and obvious as well as clearly stronger than the issues raised.”

       Id. at 679.


[18]   Fisher is distinguishable from the current case because it involved a different

       procedural posture and a different standard of review (whether direct appellate

       counsel failed to raise a claim that was significant, obvious, and clearly stronger

       than the issues raised) than in the current case (whether trial counsel should

       have objected because the trial court would have had no choice but to sustain

       the objection). In addition, in Fisher the Indiana Supreme Court concluded the

       change in the law at issue there was based in part “upon then-existing case

       Court of Appeals of Indiana | Opinion 82A01-1602-PC-304 | September 21, 2016   Page 10 of 11
       authority” of which Fisher’s counsel should have been aware. Id. at 678-79. By

       contrast, in Fajardo the Court simply cited the plain language of Indiana Code

       section 35-34-1-5 to invalidate nineteen prior decisions—an outcome that was

       arguably less predictable than the change in Fisher.


                                                 Conclusion
[19]   Cole has failed to establish that the post-conviction court erred. For the reasons

       stated above, we affirm the judgment of the trial court.


[20]   Affirmed.


       Najam, J., and Bradford, J., concur.




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