State of Indiana v. Frederick Obryan McFarland ( 2019 )

FILED
Oct 10 2019, 5:50 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Curtis T. Hill, Jr. Dawnya G. Taylor
Attorney General of Indiana Evansville, Indiana
Caroline G. Templeton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
State of Indiana, October 10, 2019
Appellant-Plaintiff, Court of Appeals Case No.
18A-CR-2408
v. Appeal from the
Vanderburgh Superior Court
Frederick Obryan McFarland, The Honorable
Appellee-Defendant. Robert J. Pigman, Judge
Trial Court Cause No.
82D03-1712-F3-7410
Kirsch, Judge.
[1] Through this permissive interlocutory appeal, the State of Indiana (“the State”)
appeals the trial court’s denial of the State’s request to amend the habitual
offender charging information for Frederick Obryan McFarland
(“McFarland”), raising the following restated issue: whether the trial court
abused its discretion by denying the State’s motion to amend the habitual
Court of Appeals of Indiana | Opinion 18A-CR-2408 | October 10, 2019 Page 1 of 12
offender charging information, which the State filed three calendar days before
trial.
[2] We affirm.
Facts and Procedural History
[3] On November 29, 2017, officers from the Evansville Police Department
attempted to conduct a traffic stop of McFarland. Appellant’s App. Vol. 2 at 46.
McFarland did not stop and, instead, sped away, ran several stop signs, and
collided with a 2003 PT Cruiser, which had the right of way. Id. The PT
Cruiser was carrying four people; an infant and a two-year-old died from their
injuries, and two adults were transported to the hospital. Id.
[4] On December 1, 2017, the State charged McFarland with four counts of
resisting law enforcement, two counts as Level 3 felonies1 and two counts as
Level 5 felonies,2 and later amended one of the Level 5 felonies to a Level 3
felony because one of the adults subsequently died from his injuries. Id. at 5,
38. That same day, the State also alleged that McFarland was a habitual
offender, citing his conviction for theft in 82C01-1007-FD-805 (“the prior theft
conviction”) and his conviction for carrying a handgun without a license in
1
See Ind. Code § 35-44.1-3-1(a)(3), (b)(3).
2
See Ind. Code § 35-44.1-3-1(a)(3), (b)(2).
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82D02-1305-FC-638. Id. at 5, 34. On January 3, 2018, the trial court set the
omnibus date for April 1, 2018. Id. at 8.
[5] On Friday, August 17, 2018, more than eight months after the State charged
McFarland and only three calendar days before trial, the State moved to amend
the habitual offender charging information. Id. at 11. Even though the
amendment was filed three calendar days before the Monday, August 20, 2018
trial, it was filed less than two business hours before trial as the State filed the
proposed amendment on Friday at 3:04 p.m. Id. at 75. The State filed the
proposed amendment because the prior theft conviction was actually a
misdemeanor conviction, not a felony conviction, so the State sought leave to
replace the prior theft conviction with McFarland’s felony conviction in 82D02-
1407-F5-1013 (“F5-1013”) for carrying a handgun without a license. Id. at 11,
75; Tr. Vol. 2 at 4-5.
[6] McFarland filed an objection, which the trial court heard on the morning of
trial. Id. at 76; Tr. Vol. 2 at 1-17. At that hearing, the State argued that its
proposed amendment would not prejudice McFarlane because McFarland’s
attorney had represented McFarland in F5-1013 and was familiar with that
case. Id. at 4-5. The State also argued that even if the proposed amendment
prejudiced McFarland’s trial preparation, the trial court, upon McFarland’s
request, would be required to continue the trial date. Id.; see Ind. Code § 35-34-
1-5(d). McFarland responded that the State’s proposed amendment was a
substantive change to the charging information because it took away
McFarland’s defense that, as charged, the State’s habitual offender charge must
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fail as a matter of law because only one of the two predicate convictions was a
felony conviction. Tr. Vol. 2 at 7. Relying on Nunley v. State, 995 N.E.2d 718(Ind. Ct. App. 2013), the trial court denied the State’s motion to amend,
concluding that it would prejudice McFarland’s substantial rights because it
would have negated McFarland’s defense and because it was not supported by
good cause. Tr. Vol. 2 at 14-15.
[7] Per the State’s request, the trial court certified its ruling for interlocutory review.
The State sought leave from this court to bring a permissive interlocutory
appeal, and on November 9, 2018, we granted the State’s request and accepted
jurisdiction over this appeal.3 Appellant’s App. Vol. 2 at 13.
Discussion and Decision
[8] Relying on Indiana Code section 35-34-1-5(b)(2),4 the State argues that the trial
court abused its discretion in denying its motion to amend the habitual offender
charging information because the proposed amendment would not have
prejudiced McFarland’s substantial rights, even though it sought leave to file
3
Because the trial court certified its ruling on September 4, 2018, the State’s deadline to file its motion for
interlocutory appeal with this court was October 4, 2018. See Ind. Appellate Rule 14(B)(2)(a). However, the
State filed its motion here on October 5, 2018, one day late. Odyssey, Motion for Interlocutory Appeal. “Failure
to timely perfect an interlocutory appeal results in forfeiture of the opportunity to pursue the appeal.” Haston
v. State, 695 N.E.2d 1042, 1044 (Ind. Ct. App. 1998) (“Haston had thirty days from the certification order
from the trial court within which to petition this court to entertain jurisdiction but did not do so.”); see also
Kindred v. Townsend, 4 N.E.3d 793, 795 (Ind. Ct. App. 2014), trans. denied. Nonetheless, we choose to address
this appeal on the merits.
4
Since the trial court set the omnibus date for April 1, 2018 -- see Appellant’s App. Vol. 2 at 8 -- under Indiana
Code section 35-34-1-5(b)(1) the State’s proposed amendment was due March 2, 2018, five and one-half
months before the State filed its proposed amendment.
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the amendment eight months after the original charging information was filed
and less than two business hours before trial. The State contends that it
provided McFarland with adequate notice because McFarland knew his own
criminal history and, even if he did not, the State actually provided McFarland
a copy of his criminal history soon after he was charged. The State also argues
that the amendment would not undermine McFarland’s ability to prepare for
trial, correctly noting that upon McFarland’s request, the trial court would have
been obligated under Indiana Code section 35-34-1-5(d) to continue the trial
date to give McFarland more time to prepare for trial. Finally, the State argues
that the proposed amendment would not have taken away McFarland’s
defense, i.e., that the State could not prove that McFarland was a habitual
offender. McFarland counters by arguing, inter alia, that the amendment would
have prejudiced his substantial rights.5
[9] We review a trial court’s decision on whether to permit an amendment to a
charging information for an abuse of discretion. Keller v. State, 987 N.E.2d
1099, 1109 (Ind. Ct. App. 2013), trans. denied. The State bears the burden of
proof to show that an amendment will not prejudice a defendant’s substantial
rights. Cf. Prewitt v. State, 761 N.E.2d 862, 868 (Ind. Ct. App. 2002)
5
McFarland also argues that under Nunley v. State, 995 N.E.2d 718, 722-24 (Ind. Ct. App. 2013), we should
affirm the trial court because if the trial court had allowed the amendment, McFarland’s rights would have
been substantially prejudiced because the proposed amendment would have taken away McFarland’s defense
that the State, under the initial habitual offender charging information, could not, as a matter of law, prove
that McFarland was a habitual offender because only one of the predicate convictions the State cited was a
felony conviction. See Ind. Code § 35-50-2-8(b), (c). We acknowledge this argument but choose to resolve
this appeal on different grounds.
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(“defendant failed to meet his burden of proving that his substantial rights were
prejudiced by the late amendment”).
[10] Indiana Code section 35-34-1-5 governs amendments, and it provides, in part:
(b) The indictment or information may be amended in matters of
substance and the names of material witnesses may be added, by
the prosecuting attorney, upon giving written notice to the
defendant at any time:
(1) up to:
(A) thirty (30) days if the defendant is charged with a felony; or
(B) fifteen (15) days if the defendant is charged only with one (1)
or more misdemeanors;
before the omnibus date; or
(2) before the commencement of trial;
if the amendment does not prejudice the substantial rights of the
defendant. When the information or indictment is amended, it
shall be signed by the prosecuting attorney or a deputy
prosecuting attorney.
....
(d) Before amendment of any indictment or information other
than amendment as provided in subsection (b), the court shall
give all parties adequate notice of the intended amendment and
an opportunity to be heard. Upon permitting such amendment,
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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 the
defendant’s defense.
Ind. Code § 35-34-1-5(b), (d) (emphasis added).
[11] In Gibbs v. State, we described the difference between amendments of form and
amendments of substance:
[A]n amendment is one of form, not substance, if both (a) a
defense under the original [I]nformation would be equally
available after the amendment, and (b) the accused’s evidence
would apply equally to the [I]nformation in either form. And an
amendment is one of substance only if it is essential to making a
valid charge of the crime.
952 N.E.2d 214, 221 (Ind. Ct. App. 2011) (quoting Fields v. State, 888 N.E.2d
304, 310 (Ind. Ct. App. 2008)), trans. denied.
[12] In Gomez v. State, we explained what constitutes a defendant’s 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
positions of either of the parties, it does not violate these rights.
Ultimately, the question is whether the defendant had a
reasonable opportunity to prepare for and defend against the
charges.
907 N.E.2d 607, 611 (Ind. Ct. App. 2009) (internal citations and quotations
omitted), trans. denied.
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[13] Here, we find that the State’s proposed amendment was one of substance, not
form. First, if the trial court had allowed the amendment, McFarland’s defense
that the State had listed only one valid predicate conviction would have
withered away. See Gibbs, 952 N.E.2d at 221. Similarly, the proposed
amendment was substantive because it was necessary for the State to bring a
valid, prima face allegation that McFarland was a habitual offender. See id.
The State admitted this. Tr. Vol. 2 at 4-5. Second, in Nunley v. State, we found
that an amendment to a habitual offender charging information under nearly
identical circumstances was a substantive amendment. See Nunley, 995 N.E.2d
at 723-25.
[14] Because the amendment was one of substance, the State was required to show
that the amendment would not have prejudiced McFarland’s substantial rights.
See Ind. Code § 35-34-1-5(b). The crux of the State’s argument that the
amendment would not have prejudiced McFarland’s substantial rights is that if
the trial court had granted the State’s request to amend, the trial court would
have been required, upon McFarland’s request, to continue the trial date. See
Ind. Code § 35-34-1-5(d). However, we have previously reviewed claims
regarding the propriety of amendments without regard to whether a
continuance would have alleviated any prejudice caused by an amendment. In
Ramon v. State, 888 N.E.2d 244, 252-53 (Ind. Ct. App. 2008), Ramon alleged
that under Indiana Code section 35-34-1-5(b)(2), the same statute McFarland
relies on here, the State’s amendment prejudiced his substantial rights. Id.
Even though Ramon did not request a continuance after the trial court granted
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the State’s motion to amend, we nonetheless addressed the merits of Ramon’s
appeal without addressing whether a continuance would have alleviated any
prejudice. Id. Similarly, in Gibbs and Fuller v. State, 875 N.E.2d 326 (Ind. Ct.
App. 2007), trans. denied, we reached the merits of the appellants’ claims
regarding the granting of amendments in their respective cases, although those
cases were resolved on whether the State’s amendments met statutory
deadlines, not whether the amendments substantially prejudiced the defendants.
Gibbs, 952 N.E.2d at 222-24; Fuller, 875 N.E.2d at 331-32. Here, therefore, we
will review the denial of the State’s motion to amend without regard to
whatever benefit a continuance would have given McFarland.6
[15] In several recent cases, we have affirmed pretrial but post-omnibus-date
amendments of substance to an information. In Mays v. State, 120 N.E.3d 1070,
1081-82 (Ind. Ct. App. 2019), trans. denied, we found no prejudice where the
State’s notice of the proposed amendment was given to the defendant nearly
four months before trial and the alibi defense was equally available after the
amendment. In Barnett v. State, 83 N.E.3d 93, 101-02 (Ind. Ct. App. 2017),
trans. denied, we found that Barnett’s substantial rights were not prejudiced
6
Unlike the State, we will not assume that a continuance would have been in McFarland’s best interests.
While a continuance, under these circumstances, would normally serve a defendant’s best interests,
McFarland may have been considering other factors that would have weighed against seeking a continuance.
For example, even at this stage of litigation, McFarland would have had the option of filing a motion for
speedy trial under Indiana Criminal Rule 4(B)(1). A continuance would undermine McFarland’s interest in
quickly setting this matter to rest. Thus, requiring McFarland to seek a continuance could potentially foist
upon him a Hobson’s choice: seek more time to prepare for trial or forgo a continuance, and thereby hinder
his trial preparation, in the interest of bringing this litigation to a speedy end.
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where the State filed its amendment five weeks after the omnibus date but two
months before the beginning of trial and three months before Barnett presented
his case in chief and because the amendment arose from the same “time [and]
place as the original counts.” In Shaw v. State, 82 N.E.3d 886, 897 (Ind. Ct.
App. 2017), trans. denied, we found no prejudice where the State’s amendment
elevated an aggravated battery offense to murder following the victim’s death
because the trial did not begin until more than two months after the amendment
and the defendant’s defense that “he was not at the scene and did not
participate in [the] beating” would “not change.” In Mannix v. State, 54 N.E.3d
1002, 1010 (Ind. Ct. App. 2016), we found no prejudice where the State filed its
motion to amend more than eight months before the beginning of the trial.
And, finally, in Gaby v. State, 949 N.E.2d 870, 875 (Ind. Ct. App. 2011), we
found no prejudice where the State moved to amend the charging information
one week before trial to correct an error in the date of an alleged molestation
offense because the amendment did not deprive Gaby of his defense of
challenging the victim’s recollection of the alleged event.
[16] None of these cases are analogous to McFarland’s situation. Here, the State
filed its proposed amendment less than two business hours before trial. In
doing so, the State did not provide adequate notice to McFarland and left
McFarland no time to prepare for the habitual offender portion of the trial. See
Gomez, 907 N.E.2d at 611. The amendment also took away McFarland’s
defense that one of the two convictions that the State initially cited in its
habitual offender charging information, was not, as the State admitted, a valid
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predicate offense under Indiana Code section 35-50-2-8. Tr. Vol. 2 at 4-5. Thus,
McFarland’s defense would not have been “equally available” if the trial court
allowed the amendment. See Gibbs, 952 N.E.2d at 221. Had the trial court
allowed the amendment, McFarland would have been left scrambling to
fashion a new defense within a matter of hours. See Erkins v. State, 13 N.E.3d
400, 405-06 (Ind. 2014); Gomez, 907 N.E.2d at 611. Forcing McFarland’s
attorney to modify McFarland’s defense on the fly would have also implicated
McFarland’s Sixth Amendment right to effective assistance of counsel. The
right to a reasonable opportunity to prepare for and defend against charges is a
hallmark of “[t]he right of an accused . . . to due process.” Saylor v. State, 559
N.E.2d 332, 335 (Ind. Ct. App. 1990) (citing Chambers v. Mississippi, 410 U.S.
284, 295 (1973)), trans. denied. That right implicates a defendant’s Sixth
Amendment right to effective assistance of counsel—a counsel who is not
provided with sufficient time to give “effective aid in the preparation and trial of
the case” is constructively no counsel at all. Powell v. Alabama, 287 U.S. 45, 71-
72 (1932).
[17] Finally, the trial court’s familiarity with the case placed it in a better position
than this court to gauge how much the amendment would have prejudiced
McFarland’s substantial rights. Considering that the State sought leave to file
its amendment eight months after filing the initial charges and less than two
business hours before trial, we cannot say that the trial court abused its
discretion in denying the State’s motion to amend.
[18] Affirmed.
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Vaidik, C.J., and Altice, J., concur.
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