No error in allowing amendment to charging information, appellate court rules

August 17, 2017

The Allen Superior Court did not err when it allowed the state to amend charging information 17 months after the omnibus date in a Fort Wayne trial because the defendant was not prejudiced by the untimely amendment, the Indiana Court of Appeals ruled Thursday.

While on a work-related trip with his subordinates in June 2000, Eric Werczynski found Brett King in a hotel room assigned to his employees. An altercation began between King and Werczynski, and other employees, including Troy Shaw, joined in as the fight moved into the parking lot. King was found dead later the same day.

Shaw was charged with Class B felony aggravated battery on June 9, and an omnibus date was set for July 31, 2000. After further investigation into Shaw’s role in King’s death, including kicking and striking him, the state moved on Nov. 31, 2001, to amend the charging information against Shaw to murder.

Shaw’s counsel objected to the amendment pursuant to Indiana Code 35-34-1-5 (1982), which, at that time, held that an amendment of substance could be made up to 30 days before the omnibus date, while an amendment of form could be made later if not prejudicial.  The Allen Superior Court granted the state’s motion to amend, as well as Shaw’s motion to continue.

During Shaw’s 2002 trial, law enforcement testified that Shaw had offered conflicting accounts of his role in the murder, while Shaw testified that he was asleep during the incident. At one point the jury sent a note with a question to the trial judge, who declined to answer. The jury found then Shaw guilty as charged, and the Indiana Court of Appeals affirmed that conviction on direct appeal, finding his argument of insufficient evidence was actually an impermissible request to reweigh the evidence.

Shaw then moved for post-conviction relief on the basis of ineffective assistance of counsel, which was also denied at both the post-conviction and appellate court level. He then filed for federal habeas relief, which was denied by the U.S. District Court for the Southern District of Indiana.

However, the 7th Circuit Court of Appeals found Shaw’s appellant counsel’s performance was deficient because “(a)n argument about the validity of the state’s effort to amend the indictment would have been materially stronger than the frivolous sufficiency-of-the-evidence point that (appellate counsel) raised… .” Thus, the 7th Circuit determined Shaw was prejudiced by his appellate counsel’s performance.

The 7th Circuit ordered that Shaw be issued a writ of habeas corpus unless the state granted him a new appeal. Shaw moved for alternative relief, but that motion was improperly filed and, thus, was never officially filed.

New appellate counsel was then appointed for Shaw in 2014, and in 2015 he asked the trial court for funds to investigate the jurors’ questions. Those motions were denied by both the trial and appellate court and the case of Troy Shaw v. State of Indiana, 02A03-1312-CR-505 proceeded to a new direct appeal.

Shaw initially argued that the appeal should be dismissed and that he was denied his right to a free transcript when the court denied his request for funds, but in a Thursday opinion, Indiana Court of Appeals Judge Rudolph Pyle dismissed both of those arguments. Pyle also dismissed the argument that the appellate court improperly failed to rule on Shaw’s motions for alternative relief, as those motions were never officially filed.

Then, turning to the merits of the appeal, Pyle and the appellate panel determined the trial court did not err in allowing the state to amend the charging information 17 months after the omnibus date.

Specifically, the appellate court noted Shaw was given notice of the amendment, the opportunity to challenge it and adequate time to prepare for trial. Further, the facts supporting the new charge were the same facts supporting the original charge.

Additionally, Shaw’s defense did not change as a result of the amendment, the court said. Thus, the trial court did not abuse its discretion in allowing the amendment to the charging information.



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