Mays v. State
Decision Date | 15 March 2019 |
Docket Number | Court of Appeals Case No. 18A-PC-2071 |
Citation | 120 N.E.3d 1070 |
Parties | William E. MAYS, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent. |
Court | Indiana Appellate Court |
Attorney for Appellant: Cara Schaefer Wieneke, Brooklyn, Indiana
Attorneys for Appellee: Curtis T. Hill, Attorney General, George P. Sherman, Deputy Attorney General, Indianapolis, Indiana
[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.
[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:
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 "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' 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:
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