Barnett v. State

• Decision Date: 25 August 2017
• Docket Number: Court of Appeals Case No. 22A01-1510-CR-1742.
• Citation: 83 N.E.3d 93
• Parties: Anthony Wayne BARNETT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

83 N.E.3d 93

Anthony Wayne BARNETT, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 22A01-1510-CR-1742.

Court of Appeals of Indiana.

August 25, 2017

Attorney for Appellant : Michael K. Ausbrook, Bloomington, Indiana

Attorneys for Appellee : Curtis T. Hill, Jr., Attorney General of Indiana, James B. Martin, Deputy Attorney General, Indianapolis, Indiana

Kirsch, Judge.

[1] This case returns to our court following the grant of a conditional writ of habeas corpus by the United States District Court for the Northern District of Indiana ("the District Court"), which held that Anthony Wayne Barnett ("Barnett") was denied the effective assistance of appellate counsel on direct appeal when counsel did not raise an appellate challenge to the timeliness of the State's second amendment to Barnett's charging information. The District Court, following the reasoning of the Seventh Circuit in Shaw v. Wilson , 721 F.3d 908, 912 (7th Cir. 2013), reh'g denied, reh'g en banc denied, cert. denied , concluded that Barnett was entitled to a new direct appeal to challenge his 2003 convictions for Class A felony burglary,¹ Class C felony battery,² and Class D felony intimidation,³ and the finding that he was an habitual offender.⁴ On appeal, Barnett raises numerous issues, which we consolidate and restate as:

I. Whether this court is barred from hearing Barnett's new direct appeal;

II. Whether the State's second amendment to Barnett's charging information, which added two new charges—Class A felony burglary and Class D felony intimidation—was impermissibly late under Indiana Code section 35-34-1-5, thus requiring a dismissal of those charges; and

III. Whether Barnett's appearance without counsel at a hearing on the State's first amendment to the charging information, which added an habitual offender enhancement, denied Barnett his Sixth Amendment right to counsel.

[2] We affirm.

Facts and Procedural History

[3] The facts supporting Barnett's 2003 convictions were set forth in this court's unpublished memorandum decision affirming the post-conviction court's denial of Barnett's petition for post-conviction relief. Barnett v. State , No. 22A01-0810-PC-505, 2009 WL 4927545 (Ind. Ct. App. Dec. 22, 2009) (" Barnett II "),⁵ trans. denied . Here, a summary of those facts will suffice. Cynthia Bogard ("Bogard") met Jeanette Lewis ("Lewis") in 2002, and soon thereafter, Lewis started bringing people to Bogard's house to smoke crack. Barnett was one of the people who used drugs at Bogard's house, and on several occasions, Barnett brought along women who would have sex with him in exchange for drugs. Bogard felt she was no longer in control of her home and asked Barnett several times to stop coming over, but Barnett laughed at her requests. Around the same time, Barnett and his ex-wife, Tonya,⁶ were trying to reconcile.

[4] On December 10, 2002, Bogard called Tonya and told her about Barnett's behavior, hoping Tonya could help. That same day, Bogard and others were in her home when they heard pounding on the door. Bogard opened the door a crack, peered out, and saw Barnett as he grabbed the door and pushed it open. Barnett shoved Bogard down and started screaming that she had ruined his life with Tonya. Barnett said he had brought two others to help beat up Bogard; Barnett also told Bogard he had a gun in the car. Barnett stomped on Bogard with his heel and threatened to kill her if she did not call Tonya and recant. Barnett got the phone, dialed Tonya's number, and had Bogard talk to her. Once off the phone, Bogard fled to a neighbor's house to call the police. Bogard had a knot on her head, her head was bleeding, and her shoulder hurt. She also had bruises on her shoulder

, chest, and head—one of the bruises on her chest near her shoulder was a pattern injury caused by the heel of a shoe. Testimony at trial revealed that pattern injuries result from significant force; the injuries were consistent with Bogard's account of the attack.

[5] On December 13, 2002, the State charged Barnett with one count of Class C felony battery. The trial court set the omnibus date for January 7, 2003 and scheduled the jury trial for February 17, 2003.⁷ Barnett's appointed attorney ("trial counsel") filed his appearance in the case on December 18, 2002. On February 4, 2003, two weeks before the scheduled trial and almost a month after the omnibus date, the State filed the first amended information, adding an habitual offender count ("the habitual amendment"). That same day, the trial court held a pretrial conference, at which Barnett "was apparently represented by [trial counsel]." Appellant's Br . at 12. On February 5,⁸ "the trial court held an initial hearing of some sort with respect to the" habitual amendment ("the habitual amendment hearing"), and Barnett, who appeared without counsel,⁹ did not object to the addition of the habitual count, but requested a continuance. Appellant's Br . at 12.

[6] On February 12, 2003, six days before Barnett's scheduled trial and five weeks after the omnibus date, the State filed a second amendment to the information ("the second amended information"), which was based on the same underlying acts, and added one count of Class A felony burglary resulting in bodily injury and one count of Class D felony intimidation. Appellant's Br. at 13 (citing Appellant's App. at 3, 35-36).¹⁰ On February 12 and 13, 2003, the trial court held a hearing, and over Barnett's objection, the trial court allowed the second amended information. Two continuances were granted to Barnett, and the jury trial began two months later. Testimony was heard on April 14 and continued through April 16, 2003, at which time the trial court granted Barnett's request to adjourn in order to depose a key defense witness. The final two days of trial were held on May 12 and May 13, after which the jury found Barnett guilty of burglary, battery, and intimidation and found him to be an habitual offender. The trial court ordered Barnett to serve an aggregate executed sentence of eighty years—fifty years for Class A felony burglary and a concurrent five years for Class C felony battery, with an habitual enhancement of thirty years added to the burglary. No sentence was entered for the Class D felony intimidation conviction. This court affirmed Barnett's convictions and sentences, and our Supreme Court denied transfer. Barnett v. State , No. 22A04-0312-CR-616, 816 N.E.2d 100 (Ind. Ct. App. Sept. 29, 2004), trans. denied .

[7] In September 2005, Barnett filed a petition for post-conviction relief, alleging that his trial counsel rendered ineffective assistance. He also argued that appellate counsel had been ineffective on direct appeal for inadequately challenging the habitual amendment and for not raising any challenge to the timeliness of the second amended information. The post-conviction court denied Barnett's petition in September 2008, and this court affirmed that denial. In pertinent part, we found that a challenge to the inclusion of the habitual offender enhancement had been waived for failure to present an objection to the trial court and that appellate counsel reasonably declined to challenge the second amended information because late amendments not prejudicing a defendant's substantial rights were routinely allowed under prevailing jurisprudence, and appellate counsel would have reasonably determined that a challenge to the amendment would not succeed on appeal. Barnett II , 2009 WL 4927545, at *8-10. The Indiana Supreme Court denied transfer.

[8] In 2010, Barnett filed a filed a petition for a writ of habeas corpus in federal court, challenging his 2003 Floyd County convictions for burglary, battery, intimidation, and the adjudication that he was an habitual offender. Initially, the District Court denied relief, finding, in pertinent part, that our court had not unreasonably applied clearly established federal law in adjudicating Barnett's claims of ineffective assistance of counsel. Barnett v. Superintendent , No. 3:10-CV-157-TLS, 2013 WL 3338493, at *3, *7 (N.D. Ind. July 2, 2013) (" Barnett III "). However, in February 2014, the United States Court of Appeals for the Seventh Circuit ("Seventh Circuit") remanded the matter back to the District Court for reconsideration in light of Shaw v. Wilson , 721 F.3d 908 (7th Cir. 2013).

[9] Following additional briefing, the District Court on remand granted conditional federal habeas relief for Barnett's claim of ineffective assistance of appellate counsel regarding the second amended information. The District Court's judgment, in part, read:

[T]he amended Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody ... is CONDITIONALLY GRANTED.... Within 120 days of this Order, the State must either release the Petitioner or grant him leave to file a new direct appeal with the assistance of counsel.

Barnett III, No. 3:10-CV-157-TLS, 2015 WL 3466294, at *7 (N.D. Ind. June 1, 2015) (emphasis added). Referring to the habitual amendment hearing, the District Court commented in a footnote:

It is unclear why appellate counsel did not raise the absence of counsel at that hearing as an issue in the direct appeal. It is disconcerting that the Petitioner was found to have waived an issue at a hearing where he was without counsel. If the State permits the Petitioner to file another direct appeal, this is an issue that warrants further exploration. See Roe v. Flores-Ortega , 528 U.S. 470, 483 [120 S.Ct. 1029, 145 L.Ed.2d 985] (2000) ("[T]he complete denial of counsel during a critical stage of a judicial proceeding mandates a presumption of prejudice because the adversary process itself has been rendered presumptively unreliable."); United States v. Cronic , 466 U.S. 648 [104 S.Ct. 2039, 80 L.Ed.2d 657] (1984).

Id. at *4 n.1.

[10] After 120 days had run without action by the State, Barnett filed a motion with the District Court on September 30, 2015, asking for his immediate...