State v. McFarland
| Decision Date | 10 October 2019 |
| Docket Number | Court of Appeals Case No. 18A-CR-2408 |
| Citation | 134 N.E.3d 1027 |
| Parties | STATE of Indiana, Appellant-Plaintiff, v. Frederick Obryan MCFARLAND, Appellee-Defendant. |
| Court | Indiana Appellate Court |
Attorneys for Appellant: Curtis T. Hill, Jr., Attorney General of Indiana, Caroline G. Templeton, Deputy Attorney General, Indianapolis, Indiana
Attorney for Appellee: Dawnya G. Taylor, Evansville, Indiana
[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 offender charging information, which the State filed three calendar days before trial.
[2] We affirm.
[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 () and his conviction for carrying a handgun without a license in 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 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.
[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 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) ().
[10] Indiana Code section 35-34-1-5 governs amendments, and it provides, in part:
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 .
[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...
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