Mays v. State, 031519 INCA, 18A-PC-2071

Docket Nº:18A-PC-2071
Opinion Judge:NAJAM, JUDGE.
Party Name:William E. Mays, Appellant-Petitioner, v. State of Indiana, Appellee-Respondent.
Attorney:Attorney for Appellant Cara Schaefer Wieneke Brooklyn, Indiana Attorneys for Appellee Curtis T. Hill Attorney General George P. Sherman Deputy Attorney General Indianapolis, Indiana
Judge Panel:Pyle, J., and Altice, J., concur.
Case Date:March 15, 2019
Court:Court of Appeals of Indiana
 
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William E. Mays, Appellant-Petitioner,

v.

State of Indiana, Appellee-Respondent.

No. 18A-PC-2071

Court of Appeals of Indiana

March 15, 2019

Appeal from the Marion Superior Court Cause No. 49G06-1504-PC-14242 The Honorable Mark D. Stoner, Judge, The Honorable Jeffrey L. Marchal, Magistrate

Attorney for Appellant Cara Schaefer Wieneke Brooklyn, Indiana

Attorneys for Appellee Curtis T. Hill Attorney General George P. Sherman Deputy Attorney General Indianapolis, Indiana

NAJAM, JUDGE.

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 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, 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.

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 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...

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