Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the
                                                              FILED
                                                           Jun 20 2012, 9:02 am
purpose of establishing the defense of
res judicata, collateral estoppel, or the                         CLERK
                                                                of the supreme court,
law of the case.                                                court of appeals and
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ATTORNEYS FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

STEPHEN T. OWENS                                  GREGORY F. ZOELLER
Public Defender of Indiana                        Indiana Attorney General of Indiana

C. BRENT MARTIN                                   GEORGE P. SHERMAN
Deputy Public Defender                            Deputy Attorney General
Indianapolis, Indiana                             Indianapolis, Indiana


                               IN THE
                    COURT OF APPEALS OF INDIANA

WALTER JAMES BLAKE,                               )
                                                  )
       Appellant- Defendant,                      )
                                                  )
              vs.                                 )      No. 29A02-1112-PC-1134
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee- Plaintiff,                       )


                    APPEAL FROM THE HAMILTON SUPERIOR COURT
                         The Honorable William J. Hughes, Judge
                             Cause No. 29D03-0812-PC-474




                                        June 20, 2012



               MEMORANDUM DECISION - NOT FOR PUBLICATION




ROBB, Chief Judge
                                 Case Summary and Issue

       After a jury trial, Walter Blake was convicted of various offenses and sentenced.

He appealed, and this court affirmed his convictions. Blake v. State, 872 N.E.2d 706

(Ind. Ct. App. 2007) (table). His subsequent petition for post-conviction relief was

denied. He raises one issue for our review: whether he received ineffective assistance of

appellate counsel due to his appellate counsel’s failure to seek transfer after this court

affirmed his convictions. Concluding Blake has failed to establish he received ineffective

assistance of appellate counsel, we affirm.

                               Facts and Procedural History

       On September 30, 2005, the State charged Blake with stalking as a Class D
       felony (Count 1), two counts of invasion of privacy as Class A
       misdemeanors (Counts 2 and 4), and two counts of intimidation as Class A
       misdemeanors (Counts 3 and 5). At Blake’s January 18, 2006 initial
       hearing, the trial court set the omnibus date for March 21, 2006. On
       November 3, 2006, the State filed a Motion to Amend and Recaption
       Cause, seeking to amend the stalking charge in Count 1 to a Class C felony
       based upon language in the charging information alleging violation of a no-
       contact order, and the State further sought to amend the invasion-of-privacy
       charges in Counts 2 and 4 to Class D felonies. The trial court granted the
       State’s motion to amend and recaption the cause. On December 5, 2006,
       the day of trial, the State filed a new charging information reflecting these
       amendments and including changed language in Count 1. The information
       changed the language in Count 1 to specify “on or about August 9 and
       through August 14, 2005” rather than “on or about August 9, 2005 and
       August 14, 2005” as it had originally read. Defense counsel objected to
       this change on double jeopardy grounds, and the trial court allowed the
       State to amend the information in Count 1 to specify, “on or about August
       13, 2005 and August 14, 2005.”

Id. at *1 (emphasis in original) (citation and footnotes omitted).

       Blake was convicted on all counts. He was sentenced to eight years for stalking

and one year for each other conviction, all of which were ordered served concurrently.

Blake, represented by court-appointed counsel, appealed to this court, and, relevant to
                                              2
this case, he argued the trial court abused its discretion by permitting the State to amend

the charging information on the day of trial. Specifically, Blake, citing Fajardo v. State,

859 N.E.2d 1201, 1207 (Ind. 2007), superseded in part by statute, for support, argued that

the amendment was one of substance, and that changes in matters of substance may not

be made to the charging information if they occur fewer than thirty days before the

omnibus date. Id. at *2. The State responded that the amendment was one of form, not

substance, and therefore permissible pursuant to Indiana Code section 35-34-1-5(c) . Id.

       We then concluded, as to the issue of the State’s amendment to the charging

information:

       We find it unnecessary to address this issue on its merits, however, because
       Blake has failed to preserve this issue for our review. It is well-settled that
       a defendant must request a continuance in addition to making an objection
       to a trial court’s grant of a motion to amend. Wright v. State, 690 N.E.2d
       1098, 1104 (Ind. 1997). Absent a motion to continue, the issue is waived
       on appeal. Id.; see Haak v. State, 695 N.E.2d 944, 951 n.5 (Ind. 1998). . . .
       Accordingly, we deem this issue waived.

Blake, 872 N.E.2d 706, *2. Blake subsequently sought post-conviction relief, claiming

he received ineffective assistance of counsel during his direct appeal because his counsel

did not aid him in seeking transfer to the Indiana Supreme Court after this court affirmed

his convictions. The post-conviction relief court denied his petition. Blake now appeals.

                                 Discussion and Decision

                                  I. Standard of Review

              Defendants who have exhausted the direct appeal process may
       challenge the correctness of their convictions and sentences by filing a
       post-conviction petition.       Post-conviction proceedings are civil
       proceedings, and a defendant must establish his claims by a preponderance
       of the evidence. Because the defendant is now appealing from a negative
       judgment, to the extent his appeal turns on factual issues, he must convince
       this Court that the evidence as a whole leads unerringly and unmistakably
                                             3
      to a decision opposite that reached by the post-conviction court. . . . We do
      not defer to the post-conviction court’s legal conclusions, but do accept its
      factual findings unless they are clearly erroneous.

Stevens v. State, 770 N.E.2d 739, 745-46 (Ind. 2002) (citations and quotation omitted),

cert. denied, 540 U.S. 830 (2003).

                     II. Ineffective Assistance of Appellate Counsel

      To establish an ineffective assistance of appellate counsel claim, Blake must

demonstrate 1) his counsel performed deficiently and 2) the deficiency resulted in

prejudice. Helton v. State, 907 N.E.2d 1020, 1023 (Ind. 2009). “There is a strong

presumption that counsel performance was not deficient, and that presumption must be

overcome with strong and convincing evidence.” Yerden v. State, 682 N.E.2d 1283,

1286 (Ind. 1997). In order to establish the prejudice prong of ineffective assistance of

counsel, Blake must show that, but for his counsel’s alleged deficient performance, the

outcome of his proceeding would have been different. Helton, 907 N.E.2d at 1023.

      The deficient performance Blake alleges is his appellate counsel’s failure to assist

him in any way in pursuing transfer to our supreme court after this court affirmed his

convictions. Blake argues this equates to deficient performance because this court’s

decision was in error, and thus, transfer should have been sought. The error Blake alleges

is that this court relied on overturned case law in its opinion on Blake’s direct appeal.

Blake claims our supreme court’s holding in Fajardo eliminated the need for a defendant

to request a continuance in addition to making an objection to a trial court’s grant of a

motion to amend in order to preserve such issue for appeal, and, Blake argues, since this

court’s opinion deemed Blake’s appeal of the State’s untimely amendment to the

charging information waived due to his failure to request a continuance in addition to
                                            4
objecting, this court’s prior opinion was in error and transfer should have been sought to

our supreme court.

         After reviewing the record, however, we cannot conclude Blake has sufficiently

demonstrated his appellate counsel’s performance was deficient, and our presumption

that counsel was not deficient applies. There is no evidence in the record to suggest

Blake’s counsel in his direct appeal to this court was also appointed to represent Blake in

seeking transfer to our supreme court.1 Further, it is not as if Blake was unaware of his

right to seek transfer and appeal this court’s decision. This is clear because Blake

petitioned for transfer acting pro se. And Blake does not contend his appellate counsel’s

performance was deficient in his direct appeal to this court. Indeed, his counsel raised

the same argument Blake herein argues would have led to a different result if counsel had

sought transfer to our supreme court. Thus, regardless of whether the argument Blake

contends should have been taken to the supreme court has merit, we conclude he has

failed to establish strong and convincing evidence that his counsel was deficient.

         Further, even if Blake’s counsel acted deficiently, Blake has failed to establish that

he was prejudiced by his counsel not aiding him in petitioning for transfer to the supreme

court. Blake did in fact petition the supreme court for transfer, acting pro se. In his

petition, Blake asserted his contention “that the Court of Appeals decision [in regards to

the trial court’s permitting the State to amend the charging information] is contrary to this

Court’s decision in Fajardo v. State, 859 N.E.2d 1201 (Ind. 2007).” Petitioner’s Exhibit


         1
          However, even if it can be said that Blake’s counsel was appointed for both his appeal to this court and in
seeking transfer to our supreme court, this does not in and of itself establish his counsel was deficient for failing to
seek transfer. “A healthy majority of lawyers who lose before the Indiana Court of Appeals . . . elect not to seek
transfer. On the face of it, without any explanation, a lawyer who does not petition for transfer has simply
performed according to the statistical norm.” Yerden, 682 N.E.2d at 1286.
                                                           5
B, Appellant’s Petition to Transfer at (i). He then proceeded to argue that this court’s

decision on his direct appeal was in error because the amendment was allowed on the day

of trial, which he argued violated both Indiana Code section 35-34-1-5 and Fajardo.

Certainly having trained legal counsel would have assisted Blake in making his

arguments more persuasive and eloquent, but the central point of the argument he claims

should have been made to the supreme court is that this court’s prior opinion was

contrary to Fajardo and Indiana Code section 35-34-1-5, and his pro se petition

sufficiently communicated that point.     Nevertheless, the supreme court unanimously

denied Blake’s petition for transfer. Thus, Blake has failed to establish that, but for his

counsel’s alleged deficient performance, the outcome of his proceeding would have been

any different.

                                       Conclusion

       Blake has failed to establish his appellate counsel acted deficiently or that he was

prejudiced by the alleged deficiency, and we therefore conclude he did not receive

ineffective assistance of counsel and affirm the post-conviction court’s denial of his

petition for post-conviction relief.

       Affirmed.

MATHIAS, J., concurs.

BAILEY, J., concurs in result with separate opinion.




                                            6
                              IN THE
                    COURT OF APPEALS OF INDIANA

WALTER JAMES BLAKE,                                )
                                                   )
       Appellant-Defendant,                        )
                                                   )
              vs.                                  )    No. 29A02-1112-PC-1134
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


BAILEY, Judge, concurring in result

       I too conclude that Blake has not established that he was denied the effective

assistance of appellate counsel when counsel elected not to pursue a petition for transfer

and continue to claim that the amendment in Blake’s case, narrowing the dates to avoid a

double jeopardy violation, was an untimely substantive amendment. See Yerden v. State,

682 N.E.2d 1283, 1286 (Ind. 1997) (recognizing that the decision to refrain from filing a

petition for transfer is in accordance with the statistical norm).

       However, I write separately to express my disagreement with the Court of Appeals

decision on Blake’s direct appeal insofar as the Court found that Blake had waived his

claim of untimely substantive amendment when he failed to request a continuance after

the trial court allowed the amendment over his objection (citing Wright v. State, 690

N.E.2d 1098, 1104 (Ind. 1997) and Haak v. State, 695 N.E.2d 944, 951 n.5 (Ind. 1998)).

       Amendment of a charging information is governed by Indiana Code Section 35-

34-1-5, which distinguishes between substantive amendments and those as to form. The

statutory language in effect at the time of Blake’s crimes (providing that a substantive
                                               7
amendment to a felony charge could be made at any time up to thirty days before the

omnibus date) was the version interpreted in Fajardo v. State, 859 N.E.2d 1201 (Ind.

2007), superseded by statute.2 The Indiana Supreme Court determined that, “as to an

amendment relating to matters of substance, the statute is clear: the only prerequisite is

that it must be filed the specified number of days before the omnibus date[.]” Id. at 1207.

        Subsequently, in Fuller v. State, 875 N.E.2d 326, 331-32 (Ind. Ct. App. 2007),

superseded by statute, we reasoned that, because the Fajardo opinion clarified that the

validity of an amendment of substance turns solely upon the timing of the amendment

and made no mention of whether a continuance was requested, the defendant in Fuller

need not have moved for a continuance in order to preserve his objection.3

        I am likewise persuaded that Blake, who challenged an amendment made within

the narrow window of time under the auspices of Fajardo before subsequent legislative

action, need not have requested a continuance to preserve his allegation of error. That

said, I do not also conclude that he has demonstrated ineffectiveness. Blake filed a pro-se

petition for transfer, asserting that the Court of Appeals decision was contrary to Fajardo.

(Pet. Ex. B.) The petition to transfer was denied. As such, Blake is unable to show the

likelihood that a different outcome would have ensued had counsel, and not Blake, signed

the petition for transfer.

        Therefore, I concur in the result reached by the majority.


        2
          Effective May 8, 2007, the General Assembly amended Indiana Code § 35-34-1-5 to provide that an
indictment or information may be amended in matters of substance before the commencement of trial if the
amendment does not prejudice the substantial rights of the defendant.
        3
         Decisions after the legislative amendment of Indiana Code Section 35-34-1-5 (now providing for pre-trial
amendment where the defendant’s substantial rights are not prejudiced) again hold that a defendant is required to
make a motion for a continuance in order to preserve a claim of untimely amendment. See e.g., Wilson v. State, 931
N.E.2d 914, 918 (Ind. Ct. App. 2010), trans. denied.
                                                        8
