                                                                         FILED
                                                                     Mar 15 2019, 9:31 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                      Curtis T. Hill
Brooklyn, Indiana                                          Attorney General

                                                           George P. Sherman
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

William E. Mays,                                           March 15, 2019
Appellant-Petitioner,                                      Court of Appeals Case No.
                                                           18A-PC-2071
        v.                                                 Appeal from the Marion Superior
                                                           Court
State of Indiana,                                          The Honorable Mark D. Stoner,
Appellee-Respondent.                                       Judge
                                                           The Honorable Jeffrey L. Marchal,
                                                           Magistrate
                                                           Trial Court Cause No.
                                                           49G06-1504-PC-14242



Najam, Judge.




Court of Appeals of Indiana | Opinion 18A-PC-2071 | March 15, 2019                           Page 1 of 22
                                          Statement of the Case
[1]   William Mays1 appeals from the post-conviction court’s denial of his petition

      for post-conviction relief. Mays presents a single issue for our review, namely,

      whether the post-conviction court erred when it concluded that Mays did not

      receive ineffective assistance of appellate counsel in his direct appeal. We hold

      that Mays’ appellate counsel performed deficiently when she did not include in

      the record on appeal a pretrial transcript relevant to the issues raised on appeal.

      However, we also hold that Mays cannot establish that the result of his direct

      appeal would have been different but for his appellate counsel’s deficient

      performance. Accordingly, we affirm the post-conviction court’s denial of

      Mays’ petition.


                                    Facts and Procedural History
[2]   The facts underlying Mays’ convictions for attempted murder, a Class A felony,

      and unlawful possession of a firearm by a serious violent felon, a Class B

      felony, were stated by this Court in his direct appeal:


               Shortly before midnight on October 14, 2005, Stanley Flowers,
               Jr. (“Flowers”) drove his blue Chevrolet Avalanche truck to the
               Shadeland Court Apartments to meet Bobby Thompkins
               (“Thompkins”), nicknamed “Forty,” who was driving a
               burgundy Dodge Stratus and had Mays and another individual
               nicknamed “Cuz” in his car. Tr. p. 55-56. Mays, Thompkins,
               and Cuz got into Flowers’ truck, and Flowers drove to a liquor



      1
        The record on appeal contains various spellings for Mays’ name, but his post-conviction attorney
      represents that “Mays” is “[t]he correct spelling.” Appellant’s Br. at 7 n.1. Thus, that is the spelling we use.

      Court of Appeals of Indiana | Opinion 18A-PC-2071 | March 15, 2019                                  Page 2 of 22
        store, where they purchased a pint of liquor and began drinking it
        in the truck. Flowers then drove Mays, Thompkins, and Cuz to
        a downtown Indianapolis nightclub called “The Government.”
        Id. at 57. The four men drank some more liquor in the truck
        before entering the nightclub around 1:30 a.m.


        When the four men left the nightclub around closing time at 3:00
        a.m., they heard gunshots in the alley behind the nightclub, and
        then Mays pulled out a little chrome gun. No more gunshots
        were fired, and Flowers drove the group back to the Shadeland
        Court Apartments with Mays sitting in the front passenger seat,
        Cuz sitting in the rear passenger seat, and Thompkins sitting in
        the rear driver’s side seat. Flowers parked his truck in the
        apartment’s parking lot, and the four men sat in the truck talking
        and drinking. Mays, Thompkins, and Cuz also snorted cocaine.


        As they were sitting in the truck, Mays and Flowers began to
        argue, and Mays told Flowers that he was going to “take
        [Flowers’] truck and take [his] stuff[.]” Id. at 62. When Flowers
        told Mays that Mays was not going to take his truck, Mays
        pulled out his pistol and shot Flowers in the right upper arm.
        Flowers jumped out of his truck, and Mays shot Flowers again in
        the arm. Flowers ran to a fence that was fifteen to twenty feet
        away from his truck, and, as Flowers attempted to climb over the
        fence, Mays shot Flowers in the back. Flowers got to the other
        side of the fence, heard more shots being fired, and lay on the
        ground pretending to be dead until he no longer heard any more
        gunshots. Flowers then crawled along the fence line until he
        encountered some construction workers working on a bridge.
        One of the workers called police, and once the police arrived,
        Flowers told one of the officers that “Will” shot him. Id. at 68,
        132. Flowers was then taken to the hospital for treatment.


        Leander Scott (“Scott”), who lived in the Shadeland Court
        Apartments, returned home to the apartments around 3:40 a.m.
        and noticed a maroon Stratus that looked like Thompkins’ car,
Court of Appeals of Indiana | Opinion 18A-PC-2071 | March 15, 2019       Page 3 of 22
        with two or three guys inside, drive out of the apartment’s
        parking lot. After Scott parked his car, he saw a blue truck,
        which had the keys in the ignition and the two passenger doors
        open with the windows down, parked in the parking lot. Scott
        closed the truck’s windows and doors, locked the truck, left a
        note on the truck indicating that “Maintenance has keys,” and
        dropped the keys at the apartment’s office. Id. at 114.


        A police evidence technician arrived at the Shadeland Court
        Apartments later that morning and processed Flowers’ truck for
        evidence. The technician was able to obtain a latent print from
        the truck’s rear passenger window, and that print was later
        identified as matching Mays’[] right index finger.


        Flowers remained in the hospital for one week for treatment of
        his “potentially life threatening” injuries. Id. at 174. A police
        detective visited Flowers a few days after the shooting, and
        Flowers told the detective that Mays shot him and
        “immediately” identified Mays in a photo array. Id. at 278.


        On October 27, 2005, the State charged Mays with Count I,
        aggravated battery, a Class B felony; Count II, unlawful
        possession of a firearm by a serious violent felon, a Class B
        felony; Count III, battery as a Class C felony; and Count IV,
        carrying a handgun without a license enhanced to a Class C
        felony. The trial court set the omnibus date for December 23,
        2005.


        On December 27, 2005, Mays belatedly filed a Notice of Alibi
        Defense, which alleged that he was at his girlfriend’s house on
        the night of the alleged crimes. The trial court held a hearing and
        permitted Mays to belatedly file his alibi notice. The trial court
        vacated the January 9, 2006, trial date and set a pre-trial
        conference for February 14, 2006.


Court of Appeals of Indiana | Opinion 18A-PC-2071 | March 15, 2019          Page 4 of 22
              On February 13, 2006, the State filed a motion to amend the
              charging information to add a count of attempted murder. In its
              motion, the State acknowledged that the motion was being filed
              after the omnibus date but asserted that the amendment did not
              prejudice Mays’ substantial rights because it would not affect his
              anticipated alibi defense. According to the State’s motion, it
              originally discussed its intention to add an attempted murder
              count with Mays’ attorney on the day that Mays filed his alibi
              notice, but it agreed to delay its filing of the amended charge
              pending plea negotiations with Mays under the original charges,
              and Mays agreed that “although these negotiations started after
              the omnibus date, this time during these negotiations would not
              count against the State.” Appellant’s App. p. 48. In its motion
              to amend, the State also noted that it contacted Mays’ attorney
              prior to filing its motion to amend “to determine whether he
              objects to th[e] motion” and that Mays’ counsel did “object to the
              amended count.” Id. The following day, the trial court held the
              pre-trial hearing and granted the State’s motion to amend the
              charging information to add Count V, attempted murder, a Class
              A felony. The record [on appeal] does not indicate that Mays
              objected to the amendment during the pre-trial conference or
              requested a continuance.


      Mays v. State, No. 49A05-0609-CR-482, 2007 WL 2429254, at *1-2 (Ind. Ct.

      App. Aug. 29, 2007) (footnotes omitted; some alterations in original), trans.

      denied (“Mays I”). Following his April 2006 trial, the jury found Mays guilty of

      several offenses, and the trial court entered judgment of conviction against

      Mays for attempted murder, a Class A felony, and for unlawful possession of a

      firearm by a serious violent felon, a Class B felony.


[3]   Mays appealed his convictions. On direct appeal, he argued, in relevant part,

      that the trial court erred under Indiana Code Section 35-34-1-5(b) (2005), which


      Court of Appeals of Indiana | Opinion 18A-PC-2071 | March 15, 2019      Page 5 of 22
      prohibited the State from amending the charging information later than thirty

      days prior to the omnibus date in felony cases. In support of that argument,

      Mays relied on our Supreme Court’s January 2007 decision in Fajardo v. State,

      in which our Supreme Court had held that errors under that statute, when they

      related to amendments “of substance,” were reversible errors without regard to

      actual prejudice suffered by the defendant. 859 N.E.2d 1201, 1207-08 (Ind.

      2007).


[4]   However, we did not reach the merits of Mays’ Fajardo claim. Instead, we held

      that Mays’ trial counsel had failed to preserve that issue for our review because

      “the record before us,” namely, the CCS, “d[id] not indicate that Mays objected

      to the amendment during the [February 14, 2006,] pre-trial conference on the

      motion [to amend]” or that he had “requested a continuance” at that

      conference. Mays I, 2007 WL 2429254, at *7 (citing Absher v. State, 866 N.E.2d

      350, 356 (Ind. Ct. App. 2007)). We noted that the record on appeal “d[id] not

      include a transcript of the February 14, 2006, pre-trial [conference].” Id. at *2

      n.8. We also noted that Mays had made “no . . . allegation of fundamental

      error” on appeal. Id. at *7 n.11. Accordingly, we rejected Mays’ argument and

      affirmed his convictions.


[5]   In May of 2015, Mays filed his petition for post-conviction relief, which he later

      amended. In his amended petition, Mays asserted only that his appellate

      counsel had rendered ineffective assistance “for failing to adequately present

      Mays’ Fajardo claim on appeal, which resulted in the claim being waived.”

      Appellant’s App. Vol. 2 at 27. At an ensuing evidentiary hearing on Mays’

      Court of Appeals of Indiana | Opinion 18A-PC-2071 | March 15, 2019        Page 6 of 22
      petition, the post-conviction court admitted into the record the transcript of the

      February 14, 2006, pretrial conference. That six-page transcript unambiguously

      demonstrated that Mays’ trial counsel had objected, vehemently, to the State’s

      proffered amendment to the charging information. Ex. Vol. at 85-87.2


[6]   Mays also called his appellate counsel as his only witness at the evidentiary

      hearing. His appellate counsel testified as follows:


                Q. . . . [A]s part of your . . . appellate representation, would you
                review the transcript?


                A. Yes.


                                                          ***


                Q. And you testified that somebody else [at the Marion County
                Public Defender Agency] prepared the Notice of Appeal. . . .
                Did that person always request that every hearing that was
                handled in the case be transcribed?


                A. No. That was never the practice.


                Q. What was the usual practice?


                A. The usual practice was to request trial, sentencing, and any
                hearings on motions. And also, after reviewing the CCS, and
                consulting with trial counsel, any additional hearings that were
                deemed important.



      2
          Our pagination of the Exhibits Volume is based on the .pdf pagination.

      Court of Appeals of Indiana | Opinion 18A-PC-2071 | March 15, 2019           Page 7 of 22
                                                       ***


              Q. If you recall, why did you not request to have the pretrial
              hearing that was referenced in the Court of Appeals opinion
              transcribed . . . ?


              A. I don’t recall specifically. I believe I felt the issue had been
              adequately preserved such that I could raise it.


              Q. Knowing what the Court of Appeals did with the claim,
              would you have done anything differently in this case?


              A. Yes. Absolutely. I would have made an effort to retrieve the
              recording or the transcript of that hearing.


      Tr. at 4-6, 9.


[7]   On August 7, 2018, the post-conviction court entered findings of fact and

      conclusions of law in which the court denied Mays’ petition for post-conviction

      relief. In relevant part, the court found and concluded as follows:


              11. [In overruling Mays’ objection and permitting the State to
              amend the charging information after the omnibus date, t]he trial
              court found that the standard to be applied was whether [Mays’]
              substantial rights were prejudiced by the late amendment.


              12. Because the defense filed an alibi defense, the trial court
              found that Mays’ substantial rights were not prejudiced by the
              late amendment since the change would not impact Mays’
              defense. The trial court also opined that it would be a more
              difficult burden to prove the attempted murder count. The trial
              court granted the State’s motion to amend over objection.


      Court of Appeals of Indiana | Opinion 18A-PC-2071 | March 15, 2019            Page 8 of 22
        13. No trial date was pending at the time of the pre-trial
        conference. [Trial counsel] advised the trial court that discovery
        was ongoing and, again, noted that certain depositions [were
        pending].


        14. The parties [then] agreed to a jury trial date of April 24,
        2006 . . . .


                                                 ***


        46. Had the record of the February 14, 2006[,] pre-trial
        conference been included in the appellate record, it would have
        established that [trial counsel] did in fact object to the
        amendment and preserved his objection for appeal.


        47. However, the record from the pre-trial conference along with
        other evidence shows that the amendment was one of form, not
        substance[, under Fajardo]. Here, [trial counsel] filed a pre-trial
        notice of alibi and pursued an alibi defense at trial. As the alibi
        defense would have been equally available to [Mays] after the
        amended charge was added, and as [Mays’] evidence would have
        applied equally to the information in either form, the amendment
        was one of form and not substance and, thus, permissible.


                                                 ***


        49. . . . [T]he Court concludes that [Mays] has not demonstrated
        a reasonable probability that, but for counsel’s errors, the result
        of the direct appeal would have been different.


Appellant’s App. Vol. 2 at 76, 82 (citations omitted). This appeal ensued.




Court of Appeals of Indiana | Opinion 18A-PC-2071 | March 15, 2019           Page 9 of 22
                                      Discussion and Decision
                                              Standard of Review

[8]   Mays appeals the post-conviction court’s denial of his petition for post-

      conviction relief. Our standard of review in such appeals is clear:


              “The petitioner in a post-conviction proceeding bears the burden
              of establishing grounds for relief by a preponderance of the
              evidence.” Campbell v. State, 19 N.E.3d 271, 273-74 (Ind. 2014).
              “When appealing the denial of post-conviction relief, the
              petitioner stands in the position of one appealing from a negative
              judgment.” Id. at 274. In order to prevail on an appeal from the
              denial of post-conviction relief, a petitioner must show that the
              evidence leads unerringly and unmistakably to a conclusion
              opposite that reached by the post-conviction court. Weatherford v.
              State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the post-
              conviction court in this case entered findings of fact and
              conclusions of law in accordance with Indiana Post-Conviction
              Rule 1(6). Although we do not defer to the post-conviction
              court’s legal conclusions, “[a] post-conviction court’s findings
              and judgment will be reversed 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) (internal quotation omitted).


      Humphrey v. State, 73 N.E.3d 677, 681-82 (Ind. 2017) (alteration original to

      Humphrey).


                         Ineffective Assistance of Appellate Counsel Claims

[9]   Mays specifically asserts that the post-conviction court erred when it concluded

      that he had not received ineffective assistance from his appellate counsel. In

      general:

      Court of Appeals of Indiana | Opinion 18A-PC-2071 | March 15, 2019      Page 10 of 22
               When evaluating an ineffective assistance of counsel claim, we
               apply the two-part test articulated in Strickland v. Washington, 466
               U.S. 668 (1984). See Helton v. State, 907 N.E.2d 1020, 1023 (Ind.
               2009). To satisfy the first prong, “the defendant must show
               deficient performance: representation that fell below an objective
               standard of reasonableness, committing errors so serious that the
               defendant did not have the ‘counsel’ guaranteed by the Sixth
               Amendment.” McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002)
               (citing Strickland, 466 U.S. at 687-88). To satisfy the second
               prong, “the defendant must show prejudice: a reasonable
               probability (i.e. a probability sufficient to undermine confidence
               in the outcome) that, but for counsel’s errors, the result of the
               proceeding would have been different.” Id. (citing Strickland, 466
               U.S. at 694).


       Id. at 682. “The standard for gauging appellate counsel’s performance is the

       same as that for trial counsel.” Weisheit v. State, 109 N.E.3d 978, 992 (Ind.

       2018). “Claims of inadequate presentation of certain issues . . . are the most

       difficult for convicts to advance and reviewing tribunals to support.” Id.

       (quotation marks omitted).


                                             Deficient Performance

[10]   Our first inquiry is whether Mays’ appellate counsel performed deficiently by

       providing “representation that fell below an objective standard of

       reasonableness.” Humphrey, 73 N.E.3d at 682 (quoting McCary, 761 N.E.2d at

       392). Although the post-conviction court did not explicitly address this issue,

       we have no qualms in holding that Mays met his burden under this prong of the

       Strickland analysis.




       Court of Appeals of Indiana | Opinion 18A-PC-2071 | March 15, 2019        Page 11 of 22
[11]   Mays’ appellate counsel attempted to challenge the State’s amendment of the

       charging information after the omnibus date. It was well-settled law at the time

       of Mays’ direct appeal that such issues could not be raised for the first time on

       appeal; rather, to preserve the issue for appellate review, trial counsel, at a

       minimum, needed to object in the trial court to the State’s proposed

       amendment. E.g., Haak v. State, 695 N.E.2d 944, 951 n.5 (Ind. 1998).

       Accordingly, to show that Mays was entitled to appellate review of this issue,

       Mays’ appellate counsel had an affirmative duty to include in the record on

       appeal those portions of the trial court proceedings that demonstrated his trial

       counsel’s preservation of the issue. See Ind. Appellate Rule 9(F)(5); Wilson v.

       State, 94 N.E.3d 312, 321 (Ind. Ct. App 2018). She failed to do so, and,

       because of that error, we resolved this issue on the basis of Mays’ apparent

       failure to preserve it. Mays I, 2007 WL 2429254, at *7.


[12]   The failure of Mays’ appellate counsel to provide us with an adequate record to

       permit meaningful review was objectively unreasonable.3 Cf. Wilhoite v. State, 7

       N.E.3d 350, 354-55 (Ind. Ct. App. 2014) (holding that the appellant had failed

       to meet his burden to provide us “with an adequate record to permit meaningful

       review”). Moreover, although she testified to the post-conviction court that it

       was the “usual practice” of the Marion County Public Defender Agency to not

       request transcripts of pretrial hearings, Tr. at 4-6, such practice did not relieve

       Mays’ appellate counsel of her duty to request a particular pretrial transcript


       3
        We need not consider Mays’ alternative argument that his appellate counsel had performed deficiently
       when she did not raise the Fajardo issue as an allegation of fundamental error.

       Court of Appeals of Indiana | Opinion 18A-PC-2071 | March 15, 2019                           Page 12 of 22
       when the issues raised on appeal required that transcript. See Wilson, 94 N.E.3d

       at 321. We hold that Mays has satisfied the first prong under Strickland.


                                                      Prejudice

[13]   We next turn to Strickland’s second prong: whether Mays has shown a

       reasonable probability that the result of his direct appeal would have been

       different but for his appellate counsel’s deficient performance. In other words,

       we must consider whether, had we reached the merits of Mays’ issue in his

       direct appeal, we would have been likely to reverse Mays’ conviction for

       attempted murder under Fajardo. Mays cannot meet his burden to show that

       such an outcome would have been reasonably probable.


[14]   As an initial matter, the transcript of the February 14, 2006, pretrial conference

       shows that May’s trial counsel did not request a continuance after the trial court

       had overruled his objection to the State’s amendment to the charging

       information. As such, the State argues that, had that transcript been included in

       the original record on appeal, the outcome of Mays’ direct appeal would have

       been exactly the same as it was, namely, a failure to preserve the issue for our

       review. It is true that there was ample case law at the time of Mays’ direct

       appeal that stated that, when an objection to the State’s amendment to a

       charging information is overruled, the defendant must then seek a continuance

       to preserve appellate review of the amendment. E.g., Haak, 695 N.E.2d at 951

       n.5. The purpose of requesting such a continuance is to give the defendant the

       opportunity to prepare a defense to the new charges. See id.


       Court of Appeals of Indiana | Opinion 18A-PC-2071 | March 15, 2019       Page 13 of 22
[15]   However, the transcript of the February 14, 2006, pretrial conference, which,

       again, our Court did not have before it in Mays’ direct appeal, makes clear that

       no trial date had yet been set when Mays’ trial counsel objected to the State’s

       proposed amendment and the trial court overruled that objection. Indeed, it

       was not until after the issue of the State’s amendment had been resolved by the

       trial court that a trial date was then set by agreement of the parties. It would

       have been an empty gesture for Mays’ trial counsel to request the continuance

       of a trial date that did not exist at the time the trial court overruled his

       objection. Preservation of issues for appellate review might require futile

       gestures, but it does not require empty ones. Had the record been properly

       presented to us on direct appeal, we would not have resolved Mays’ Fajardo

       issue on the basis of waiver for failing to request a continuance. See, e.g., id.

       (reaching the merits of the defendant’s challenge to the amendment where “it is

       unclear whether he asked for a continuance”).


[16]   We thus turn to the merits of Mays’ Fajardo claim. In Fajardo, our Supreme

       Court, discussing when the State may amend a charging information under the

       version of Indiana Code Section 35-34-1-5(b) in effect at the time, delineated

       between amendments of form and amendments of substance:


               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.


       Court of Appeals of Indiana | Opinion 18A-PC-2071 | March 15, 2019             Page 14 of 22
       859 N.E.2d at 1207. Our Supreme Court held that amendments of substance

       may not be made after thirty days prior to the omnibus date pursuant to Indiana

       Code Section 35-34-1-5(b). Id. at 1208. And the Court held that, on the facts

       before it, “charging a new separate offense constituted an amendment to

       matters of substance” in part because “charg[ing] the commission of a separate

       crime . . . is unquestionably essential to making a valid charge of the crime.”

       Id.


[17]   We have previously explained the holding of Fajardo and the law that both

       preceded and followed that opinion as follows:


               For over twenty years prior to Fajardo, case law regularly
               permitted [charging information] amendments related to matters
               of substance as long as the substantial rights of the defendant
               were not prejudiced, regardless of whether the amendments were
               untimely [relative to the omnibus date] under I.C. § 35-34-1-5(b).
               See Fajardo v. State, 859 N.E.2d 1201 (listing numerous Supreme
               Court and Court of Appeals cases). On January 16, 2007, our
               Supreme Court changed course and held that the statute clearly
               required amendments of substance to be made not less than thirty
               days before the omnibus date, even if a defendant’s substantial
               rights are not prejudiced by the amendment. The 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 anytime before trial so long
               as the defendant’s substantial rights are not prejudiced). Thus,
               Fajardo was superseded by statute in less than four months. This
               prompt return to pre-Fajardo law indicates urgency in the
               legislature’s desire to negate the effects of Fajardo.


       Hurst v. State, 890 N.E.2d 88, 95 (Ind. Ct. App. 2008), trans. denied.


       Court of Appeals of Indiana | Opinion 18A-PC-2071 | March 15, 2019       Page 15 of 22
[18]   Here, the post-conviction court found that, had our Court reached the merits of

       Mays’ Fajardo claim on direct appeal, we would have held that the State’s

       amendment was one of form and not one of substance under Fajardo. The post-

       conviction court’s finding is clearly erroneous. The State here sought to add an

       entirely new charge to the charging information by way of an untimely

       amendment. As it was in Fajardo, such an amendment is patently one of

       substance as “charg[ing] the commission of a separate crime . . . is

       unquestionably essential to making a valid charge of the crime.” 859 N.E.2d at

       1208.


[19]   Nonetheless, we would not have reversed Mays’ convictions in Mays I because

       Fajardo was no longer good law. Instead of applying Fajardo, we would have

       held that our legislature’s quick amendment to Indiana Code Section 35-34-1-

       5(b) superseded and negated Fajardo’s holding. See Hurst, 890 N.E.2d at 95.

       Although the retroactivity of the amended statute initially resulted in differing

       opinions from our Court,4 we agree with the ensuing summary of this issue as

       stated by another panel of this Court in Gomez v. State:


                In Ramon [v. State, 888 N.E.2d 244, 252 (Ind. Ct. App. 2008)],
                this court held that the application of the revised Indiana Code



       4
          For example, in Fields v. State, 888 N.E.2d 304, 309-10 (Ind. Ct. App. 2008), State v. O’Grady, 876 N.E.2d
       763, 765 n.1 (Ind. Ct. App. 2007), and Roush v. State, 875 N.E.2d 801, 806 n.2 (Ind. Ct. App. 2007), we held
       that the version of the statute in effect at the time the defendant committed his offenses controlled. In Fuller
       v. State, 875 N.E.2d 326, 330 n.2 (Ind. Ct. App. 2007), trans. denied, and Laney v. State, 868 N.E.2d 561, 565
       n.1 (Ind. Ct. App. 2007), trans. denied, we held that the version of the statute in effect at the time of the
       defendant’s trial controlled. However, the initial lack of clarity regarding the retroactivity of the amended
       statute does not establish Strickland prejudice; Mays is not entitled to “a windfall as a result of the application
       of an incorrect legal principle” at the time of his direct appeal. Lafler v. Cooper, 566 U.S. 156, 167 (2012).

       Court of Appeals of Indiana | Opinion 18A-PC-2071 | March 15, 2019                                   Page 16 of 22
        section 35-34-1-5 did not violate the ex post facto provisions of the
        Indiana and United States Constitutions because the statutory
        amendment was procedural. In reaching this determination, we
        concluded that the revised statute defined the procedures the
        State must follow in order to amend a charging information and
        that the revision did not create any new crimes, change the
        elements of any crime, or alter any sentencing statutes. Id. In
        Hurst[, 890 N.E.2d at 95], this court found that strong and
        compelling reasons existed favoring retroactive application of the
        revised version of Indiana Code section 35-34-1-5. We reasoned
        that prior to Fajardo, case law regularly permitted amendments to
        an indictment or charging information related to matters of
        substance as long as the substantial rights of the defendant were
        not prejudiced, regardless of whether the amendments were
        timely under Indiana Code section 35-34-1-5(b). Hurst, 890
        N.E.2d at 95. Further, within a few months after our Supreme
        Court decided Fajardo, the legislature quickly amended the
        statute to reflect the law before Fajardo, and this court concluded
        that this prompt return to pre-Fajardo law indicated an urgency to
        negate the effects of that case. Id. Based upon this, we
        concluded that it was the clear intent of the legislature to have the
        amended statute apply retroactively. Id.


        Therefore, based on the holdings of both Hurst and Ramon, this
        court has found that the legislative revisions to Indiana Code
        section 35-34-1-5 were procedural and did not implicate the ex
        post facto provisions of the Indiana and United States
        Constitutions. The amended version of the statute may
        accordingly be applied retroactively, and was applicable in the
        present case, allowing the State to amend its charging
        information to add the count of murder approximately ten
        months before the trial.


907 N.E.2d 607, 610-11 (Ind. Ct. App. 2009), trans. denied; see Brown v. State,

912 N.E.2d 881, 887-90 (Ind. Ct. App. 2009), trans. denied; see also Barnett v.

Court of Appeals of Indiana | Opinion 18A-PC-2071 | March 15, 2019        Page 17 of 22
       State, 83 N.E.3d 93, 100-01 (Ind. Ct. App. 2017), trans. denied. Further, despite

       Mays’ assertion to the contrary, our holdings in Ramon, Hurst, Gomez, Brown

       and other cases that the amended statute applied retroactively have not been

       limited to the dates of the defendants’ trials. Rather, our holdings have been

       unlimited in their retroactive reach based on our legislature’s “clear intent” to

       “negate” Fajardo. Gomez, 907 N.E.2d 610-11; Hurst, 890 N.E.2d at 95.


[20]   The trial court in Mays’ case, relying on the pre-Fajardo case law available to it

       at the time, analyzed the permissibility of the State’s proposed amendment to

       the charging information based on whether that proposed amendment would

       prejudice the substantial rights of the defendant. See Hurst, 890 N.E.2d at 95.

       That same test was nearly immediately reinstated to Indiana Code Section 35-

       34-1-5(b) by our legislature’s post-Fajardo statutory amendment. Id. And we

       decided Mays’ direct appeal more than three months after the effective date of

       that statutory amendment. See Mays I, 2007 WL 2429254, at *7 n.9. Thus, had

       we reached the merits of Mays’ Fajardo claim in his direct appeal, the correct

       resolution would have been to apply the amended statute, not Fajardo, which in

       turn would have required this Court to consider, as the trial court did here,

       whether the State’s untimely amendment to the charging information

       prejudiced Mays’ substantial rights. E.g., Gomez, 907 N.E.2d at 611.


[21]   And we would have held that the amendment to the charging information did

       not prejudice Mays’ substantial rights. “A defendant’s substantial rights include

       a right to sufficient notice and an opportunity to be heard regarding the charge;

       and, if the amendment does not affect any particular defense or change the

       Court of Appeals of Indiana | Opinion 18A-PC-2071 | March 15, 2019       Page 18 of 22
       positions of either of the parties, it does not violate these rights.” Id. (quoting

       Ramon, 888 N.E.2d at 252). “Ultimately, the question is whether the defendant

       had a reasonable opportunity to prepare for and defend against the charges.”

       Id. (quoting Ramon, 888 N.E.2d at 252).


[22]   It is not disputed that Mays had notice of the State’s anticipated amendment to

       the charging information long before the State formally requested the

       amendment. Mays I, 2007 WL 2429254, at *7. It is also not disputed that

       Mays’ ensuing trial date following the State’s amendment was set with his

       agreement. And it is not disputed that Mays’ alibi defense to the State’s charges

       remained the same before and after the amendment. In short, nothing about

       the State’s amendment prejudiced Mays’ substantial rights. Thus, had we

       reached this issue in Mays I, we would have affirmed. Accordingly, we agree

       with the post-conviction court that Mays cannot show that he was prejudiced

       by his appellate counsel’s deficient performance.


                                           Recent Federal Case Law

[23]   Mays has submitted, post-briefing, a notice of two additional authorities,

       namely, a recent opinion from the United States Court of Appeals for the

       Seventh Circuit in Jones v. Zatecky, ___ F.3d ___, No. 17-2606, 2019 WL 966601

       (7th Cir. Feb. 28, 2019), and that court’s prior opinion in Shaw v. Wilson, 721

       F.3d 908, 911 (7th Cir. 2013). In Shaw, the defendant’s appellate attorney

       eschewed challenging on appeal whether the trial court had erred in permitting

       the State to amend the charging information and, instead, raised only an issue

       of sufficiency of the evidence to support the convictions. On habeas review, the
       Court of Appeals of Indiana | Opinion 18A-PC-2071 | March 15, 2019         Page 19 of 22
       Seventh Circuit held that the issue relating to the amendment of the charging

       information was clearly stronger than the sufficiency issue. Shaw, 721 F.3d at

       915-18. The Seventh Circuit further held that counsel’s deficient performance

       entitled the defendant to a new direct appeal. Id. at 919-20. In reaching those

       holdings, the Seventh Circuit expressly declined to consider whether the

       amended version of Indiana Code Section 35-34-1-5(b) applied retroactively as

       “the Indiana appellate courts [would] be free to consider” such issues in the

       defendant’s new direct appeal. Id. at 919.


[24]   Nevertheless, in determining that the issue relating to the charging information

       was clearly stronger than the sufficiency issue, in Shaw the Seventh Circuit

       declared that the Indiana Supreme Court’s 1998 opinion in Haak established

       “the same rule” announced in Fajardo. Id. at 917. However, when the State

       argued that “the Indiana Supreme Court’s reading of Section 35-34-1-5 in

       Fajardo sharply diverged from that court’s prior understanding of the statute in

       Haak and thus was a radical change in law,” which argument is consistent with

       our Court’s precedent, see Hurst, 890 N.E.2d at 95; Townsend v. State, 753

       N.E.2d 88, 94 (Ind. Ct. App. 2001), the Seventh Circuit responded that “that

       line of argument implicitly draws us into the content of state law, and we have

       emphasized that this is forbidden territory,” Shaw, 721 F.3d at 916. Thus, the

       Seventh Circuit’s ultimate conclusion here was merely that the defendant’s

       appellate counsel had a better argument on direct appeal in challenging the

       State’s untimely amendment to the charging information than in presenting

       only an “undeniably frivolous” sufficiency issue. Id. at 917.

       Court of Appeals of Indiana | Opinion 18A-PC-2071 | March 15, 2019     Page 20 of 22
[25]   In Jones, the defendant’s arrest and prosecution occurred after Haak but before

       Fajardo. When the State sought an untimely amendment to the charging

       information, the defendant’s trial counsel failed to object. On direct appeal,

       which was decided by our Court more than six months after the effective date

       of the statutory amendment to Indiana Code Section 35-34-1-5(b), we held that

       trial counsel’s failure to object precluded appellate review. See Jones, 2019 WL

       966601, at *2. On habeas review, the Seventh Circuit held that, had the

       defendant’s trial counsel objected based on Haak, the defendant would have

       been entitled to the same relief that the Indiana Supreme Court granted the

       defendant in Fajardo. Id. at *2 & n.2. However, in reaching that decision, the

       Seventh Circuit stated that our legislature’s post-Fajardo statutory amendment

       was “not retroactive and thus has no effect on [the defendant’s] case.” Id. at *1

       n.1.


[26]   We do not find Shaw or Jones persuasive. First, we note that Mays’ post-

       conviction attorney has framed the issues in this appeal around Fajardo, not

       Haak, which, again, is consistent with our Court’s precedent. See Hurst, 890

       N.E.2d at 95; Townsend, 753 N.E.2d at 94. Second, the deficient performance

       in Mays’ direct appeal resulted from a failure to adequately present the issue for

       our review, not from a failure to raise a clearly stronger argument. Thus, Shaw

       and its reasoning are inapposite to the instant appeal. Third, Shaw expressly did

       not reach the issue of the retroactive effect of the statutory amendment, and

       while Jones declared that the statutory amendment was not retroactive, as

       explained above that declaration is not consistent with our Court’s precedent.

       Court of Appeals of Indiana | Opinion 18A-PC-2071 | March 15, 2019      Page 21 of 22
       See Brown, 912 N.E.2d at 887-90; Gomez, 907 N.E.2d at 610-11; Hurst, 890

       N.E.2d at 95; Ramon, 888 N.E.2d at 252. Thus, notwithstanding the federal

       authorities cited by Mays, we hold that the statutory amendment would have

       applied to Mays on direct appeal, and, as such, we affirm the post-conviction

       court’s denial of Mays’ petition for post-conviction relief.


                                                    Conclusion

[27]   In sum, had Mays’ appellate counsel properly presented the issue of the State’s

       untimely amendment to the charging information on direct appeal, we would

       have held that the statutory amendment applied and, therefore, that the trial

       court did not commit reversible error in permitting the amendment.

       Accordingly, Mays cannot show that he was prejudiced by his appellate

       counsel’s deficient performance, and we affirm the post-conviction court’s

       denial of Mays’ petition for post-conviction relief.


[28]   Affirmed.


       Pyle, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 18A-PC-2071 | March 15, 2019     Page 22 of 22
