Denial of last-minute habitual offender amendment upheld in triple-fatal

A trial court’s denial of the state’s motion to amend the habitual offender charging information against a defendant hours before his scheduled trial date was upheld Thursday. The case involves a crash that killed three people after the suspect allegedly fled Evansville police.

The Indiana Court of Appeals on Thursday affirmed the Vanderburgh Superior Court’s ruling in State of Indiana v. Frederick Obryan McFarland, 18A-CR-2408. McFarland was behind the wheel of a vehicle on November 29, 2017, when Evansville police attempted to conduct a traffic stop. McFarland sped away, ran several stop signs, and ultimately collided with a vehicle that had the right of way, according to the record. Of the four people in the PT Cruiser that McFarland’s vehicle struck, an infant and a 2-year-old died from their injuries; two adults also were injured, one of whom also later died from injuries sustained in the crash.

Days after the crash, McFarland was charged with four counts of resisting law enforcement, three as Level 3 felony counts and a single Level 5 charge. The state also filed a habitual offender allegation based on McFarland’s prior convictions of theft and carrying a handgun without a license.

“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,” Judge James Kirsch wrote for the panel. “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. 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 (another case) for carrying a handgun without a license.”

McFarland objected, and after a hearing the morning of his trial, the court rejected the state’s argument that the defendant would not be prejudiced, because his defense attorney had represented him in the case the state sought to amend as the habitual offender information and would be familiar with it. The trial court, relying on Nunley v. State, 995 N.E.2d 718 (Ind. Ct. App. 2013), 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, Kirsch wrote.

The Indiana Court of Appeals agreed in this interlocutory appeal certified on the state’s request. “In several recent cases, we have affirmed pretrial but post-omnibus-date amendments of substance to an information. … None of these cases are analogous to McFarland’s situation. Here, the State

filed its proposed amendment less than two business hours before trial. In doing so, the State did not provide adequate notice to McFarland and left McFarland no time to prepare for the habitual offender portion of the trial.

“The amendment also took away McFarland’s defense that one of the two convictions that the State initially cited in its habitual offender charging information, was not, as the State admitted, a valid predicate offense under Indiana Code section 35-50-2-8. … Had the trial court allowed the amendment, McFarland would have been left scrambling to fashion a new defense within a matter of hours. … Forcing McFarland’s attorney to modify McFarland’s defense on the fly would have also implicated

McFarland’s Sixth Amendment right to effective assistance of counsel.  The right to a reasonable opportunity to prepare for and defend against charges is a hallmark of “[t]he right of an accused . . . to due process.”  Saylor v. State, 559 N.E.2d 332, 335 (Ind. Ct. App. 1990) (citing Chambers v. Mississippi, 410 U.S. 284, 295 (1973)), trans. denied. That right implicates a defendant’s Sixth Amendment right to effective assistance of counsel — a counsel who is not provided with sufficient time to give ‘effective aid in the preparation and trial of the case’ is constructively no counsel at all. Powell v. Alabama, 287 U.S. 45, 71 72 (1932).”

“Finally, the trial court’s familiarity with the case placed it in a better position than this court to gauge how much the amendment would have prejudiced McFarland’s substantial rights.  Considering that the State sought leave to file its amendment eight months after filing the initial charges and less than two business hours before trial, we cannot say that the trial court abused its discretion in denying the State’s motion to amend,” the panel concluded.

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