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COA finds that defendant did not prove counsel error

September 21, 2016

The Indiana Court of Appeals will not reverse a decision to deny a man’s petition for post-conviction relief after he was convicted of three counts of felony robbery, despite his argument that the third charge of felony robbery was added against him in an untimely manner.

In its Wednesday opinion in the case of Charles R. Cole, III v. State of Indiana, 82A01-1602-PC-304, the appellate court found that Charles Cole was unable to prove that he deserved post-conviction relief based on the ineffectiveness of his attorney.

In May 1995, Cole, along with two other individuals, robbed the First Federal Savings Bank in Vanderburgh County, escaping with $3,000. Cole was then involved in second robbery at the Union Federal Savings Bank later that month, escaping with $33,000.

A third robbery attempt at the National City Bank in June 24 fell through, but a fourth robbery at the Citizens Bank was successful. One of Cole’s associates was arrested shortly after the fourth robbery and implicated Cole to the police, who arrested him.

The state initially charged Cole with two counts of Class B felony robbery and one count of Class B felony attempted robbery, then later amended to the charging information to add a third county of Class B felony robbery. A jury in the Vanderburgh Circuit Court convicted Cole of all three counts of Class B felony robbery, but not the county of attempted robbery. He later petitioned for post-conviction relief, citing three claims of ineffective assistance of counsel, but the post-conviction court denied his petition.

Cole appealed, arguing that the post-conviction court erred when it rejected his contention that his attorneys should have objected to the state’s amendment of charging information to add an additional count of robbery because the amendment was untimely. He also argued that the amendment was a matter of substance, not form.

The state countered, arguing that caselaw in effect at that time allowed substantive amendments after the statutory deadline and that Cole’s counsel did not render deficient performance by failing to object.

The Court of Appeals agreed, writing that Cole failed to demonstrate that if his attorney had objected, the trial court “would have had no choice but to sustain” the objection. Appellate decisions in existence at that time affirmed trial court rulings that permitted late, substantive amendments to a charging information, the court wrote.

Thus, the Court of Appeals affirmed the Vanderburgh Circuit Court’s denial of Cole’s petition.

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