83 N.E.3d 93
Ind. Ct. App.2017Background
- In December 2002 Barnett was charged with Class C felony battery; omnibus date set for Jan 7, 2003 and trial scheduled for mid-February 2003. Trial counsel entered appearance Dec 18, 2002.
- On Feb 4, 2003 the State filed a first amended information adding an habitual-offender allegation; on Feb 5 Barnett appeared at a hearing without counsel and requested a continuance but did not object to the habitual amendment.
- On Feb 12, 2003 (five weeks after omnibus date and six days before original trial date) the State filed a second amended information adding Class A burglary (resulting in bodily injury) and Class D intimidation based on the same underlying acts; the trial court allowed it over defense objection.
- Trial occurred in April–May 2003; Barnett was convicted of burglary, battery, intimidation, adjudicated an habitual offender, and received an aggregate executed sentence of 80 years.
- Barnett’s post-conviction and direct appeals were unsuccessful; he later obtained conditional federal habeas relief (N.D. Ind.) on the ground appellate counsel was ineffective for not challenging timeliness of the second amended information, and the District Court ordered the State to grant leave to pursue a new direct appeal or release Barnett.
Issues
| Issue | Plaintiff's Argument (Barnett) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Authority to proceed with a new direct appeal ordered by federal court | State cannot "create" a new appeal in state court; federal conditional writ ordering a new appeal is improper / res judicata / judicial estoppel concerns | Federal courts may fashion conditional habeas remedies; Barnett surrendered to federal remedy and cannot collaterally attack it in state court | Court rejects Barnett’s collateral attack; new direct appeal ordered by District Court is a valid remedial option and this court will hear it |
| Timeliness of second amended information under I.C. § 35-34-1-5 (2002) | Addition of two new felony counts after omnibus date was a substantive amendment and therefore untimely under the pre-2007 statute, requiring dismissal | 2007 amendment to § 35-34-1-5 (allowing substantive amendments before trial if no prejudice) applies retroactively; amendment here did not prejudice substantial rights | Court applies the amended statute retroactively and holds the second amended information was timely because it was filed before trial and did not prejudice Barnett’s substantial rights |
| Sixth Amendment right to counsel at the habitual-amendment hearing (trial counsel absent) | Absence of counsel at that hearing was a denial of the right to counsel and led to waiver on appeal of timeliness objection to the habitual allegation | Counsel had appeared before the hearing; any objection to the habitual amendment could have been made up to and including trial, so absence at that hearing caused no prejudice | Court finds no Sixth Amendment violation; any error was harmless because waiver could not be attributed solely to counsel’s absence and Barnett shows no prejudice |
| Due process / notice of the new direct appeal (Appellate Rule 24) | Lack of formal service of notice of the new appeal violated Barnett’s due process rights | District Court order granting new appeal provided the remedial basis; Barnett failed to develop the due-process argument | Issue waived for inadequate briefing; court does not find a due process violation on the record |
Key Cases Cited
- Roe v. Flores-Ortega, 528 U.S. 470 (failure to file appeal can constitute ineffective assistance when counsel’s performance and prejudice met)
- Cronic, 466 U.S. 648 (complete denial of counsel at a critical stage mandates a presumption of prejudice)
- Peyton v. Rowe, 391 U.S. 54 (federal habeas courts have power to fashion conditional remedies)
- Herrera v. Collins, 506 U.S. 390 (purpose of federal habeas is to ensure no one is imprisoned in violation of the Constitution)
- Shaw v. Wilson, 721 F.3d 908 (7th Cir. decision informing ineffective-assistance-of-appellate-counsel standard for failure to challenge untimely charging amendments)
- Fajardo v. State, 859 N.E.2d 1201 (Ind. 2007) (interpreting pre-amendment § 35-34-1-5 as barring substantive amendments later than 30 days before omnibus date)
- Brown v. State, 912 N.E.2d 881 (Ind. Ct. App. 2009) (holding the 2007 legislative amendment to § 35-34-1-5 may be applied retroactively and permits substantive amendments before trial if no prejudice)