Despite counsel’s error, defendant not entitled to relief, COA says

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Despite a trial attorney’s failure to include a pretrial transcript in the record on a defendant’s direct appeal, the defendant is not entitled to post-conviction relief because the Indiana Court of Appeals would not have found prejudice in the attorney’s performance, the court ruled Friday in addressing the case for the second time.

In William E. Mays v. State of Indiana, 18A-PC-2071, Williams Mays was convicted of Class A felony attempted murder and Class B felony unlawful possession of a firearm by a serious violent felon after shooting Stanley Flowers Jr., in the arm and back. The two men had argued after Mays threatened to take Flowers’ truck and “stuff.”

In February 2006, after the omnibus date had passed, the state was granted permission to amend the charging information against Mays to add an attempted murder count. According to the record presented on direct appeal, Mays’ trial counsel did not object to the amendment or request a continuance at a pretrial hearing, so the Indiana Court of Appeals thus ruled the issue was waived on direct appeal.

In finding the issue waived in 2007, the COA declined to reach the merits of Mays’ argument under Fajardo v. State, 859 N.E.2d 1201, 1207-08 (Ind. 2007). Fajardo “held that errors under (Indiana Code Section 35-34-1-5(b) (2005)) , when they related to amendments ‘of substance,’ were reversible errors without regard to actual prejudice suffered by the defendant.”

Then in 2015, Mays filed for post-conviction relief, arguing his appellate counsel failed to adequately present the Fajardo claim, leading to its waiver. Evidence admitted at a subsequent evidentiary hearing revealed his trial counsel had objected to the amended charging information at the 2006 pretrial conference.

Despite that, the trial court denied the PCR petition, finding Mays’ alibi defense “would have been equally available … after the amended charge was added.” Thus, the trial court held, Mays failed to prove that the result of his direct appeal would have been different but for his appellate counsel’s error.

The Court of Appeals reached a similar holding on Friday, with Judge Edward Najam writing first that “(t)he failure of Mays’ appellate counsel to provide us with an adequate record to permit meaningful review was objectively unreasonable.” Additionally, Najam said the lower court clearly erred when it found that the Court of Appeals, if it had reached the merits of the Fajardo claim, “would have held that the State’s amendment was one of form and not substance under Fajardo.

“Nonetheless, we would not have reversed Mays’ convictions in Mays I because Fajardo was no longer good law,” Najam said. “Instead of applying Fajardo, we would have held that our legislature’s quick amendment to Indiana Code Section 35-34-1-5(b) superseded and negated Fajardo’s holding.”

“Thus, had we reached the merits of Mays’ Fajardo claim in his direct appeal, the correct resolution would have been to apply the amended statute, not Fajardo, which in turn would have required this Court to consider as the trial court did here, whether the State’s untimely amendment to the charging information prejudiced Mays’ substantial rights,” he said.

In making that consideration, Najam said the Court of Appeals would have found no prejudice because Mays had notice of the amendment before the state requested it, and his trial date was set with his agreement. Further, Mays’ alibi defense did not change after the charging information was amended.

Finally, the appellate court rejected Mays’ post-briefing argument that he should be granted relief under 7th Circuit precedent in Jones v. Zatecky, ___ F.3d ___, No. 17-2606, 2019 WL 966601 (7th Cir. Feb. 28, 2019) and Shaw v. Wilson, 721 F.3d 908, 911 (7th Cir. 2013), which both drew on Haak v. State, 695 N.E.2d 994, 951 n.5 (Ind. 1998), which each addressed the applicability of I.C. 35-34-1-5(b).

“Thus, notwithstanding the federal authorities cited by Mays, we hold that the statutory amendment would have applied to Mays on direct appeal, and, as such, we affirm the post-conviction court’s denial of Mays’ petition for post-conviction relief,” Najam concluded.

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