David L. Johnson, Jr. v. State of Indiana (mem. dec.), 82A01-1611-PC-2460

Infant A.J. died after injuries in February 2009; autopsy concluded homicide by child abuse. X-rays and autopsy revealed multiple fractures and blunt force trauma.
State charged David L. Johnson, Jr. with class A felony neglect of a dependent resulting in death; the operative information alleged he had care of A.J. “because of a legal obligation.”
During trial, the State moved to amend the information to allege Johnson had care of A.J. “whether assumed voluntarily or because of a legal obligation.” The trial court granted the amendment over Johnson’s objection.
The jury convicted Johnson; he was sentenced to 40 years. On direct appeal, the conviction was affirmed. Johnson then filed a petition for post-conviction relief claiming appellate counsel was ineffective for not arguing on direct appeal that the mid-trial amendment was substantive and impermissible.
The post-conviction court denied relief. The Court of Appeals affirmed, holding the amendment was one of form and appellate counsel was not ineffective for omitting the claim.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether appellate counsel was ineffective for not arguing the trial court erred in allowing a mid-trial amendment to the information	Johnson: amendment was substantive because State originally alleged only legal obligation (paternity) and the amendment deprived him of that defense	State: neglect statute covers voluntary assumption or legal obligation; the amendment was one of form and did not eliminate any legitimate defense	Court: Amendment was one of form; appellate counsel not ineffective for failing to raise a meritless claim
Whether the amendment prejudiced Johnson such that a new trial would be required	Johnson: amendment demoted paternity from dispositive to irrelevant, causing prejudice	State: evidence showed Johnson had assumed care (living with child, calling her his daughter, left alone to care for her), so amendment caused no prejudice; any error would be harmless	Court: No prejudice shown; even concurring judge agreed outcome would be harmless and affirmed judgment

Johnson v. State, 959 N.E.2d 334 (Ind. Ct. App. 2011) (direct-appeal summary of underlying facts)
Dewitt v. State, 755 N.E.2d 167 (Ind. 2001) (standard of review in post-conviction proceedings)
Gulzar v. State, 971 N.E.2d 1258 (Ind. Ct. App. 2012) (post-conviction review standard discussion)
Ben-Yisrayl v. State, 729 N.E.2d 102 (Ind. 2000) (clear-error standard for post-conviction findings)
Hollowell v. State, 19 N.E.3d 263 (Ind. 2014) (ineffective-assistance standard applies equally to appellate counsel)
Taylor v. State, 717 N.E.2d 90 (Ind. 1999) (two-prong test for appellate ineffectiveness; issues omitted on appeal rarely succeed)
Singleton v. State, 889 N.E.2d 35 (Ind. Ct. App. 2008) (unraised appellate issue must be significant, obvious, and clearly stronger)
Fields v. State, 888 N.E.2d 304 (Ind. Ct. App. 2008) (test whether amendment is of form or substance)
Erkins v. State, 13 N.E.3d 400 (Ind. 2014) (amendment is one of form if defendant had reasonable opportunity to prepare defense)
Kellogg v. State, 636 N.E.2d 1262 (Ind. Ct. App. 1994) (neglect statute does not require legal parenthood; voluntary assumption suffices)
Fajardo v. State, 859 N.E.2d 1201 (Ind. 2007) (amendment is of substance only if essential to make a valid charge)
Gibbs v. State, 952 N.E.2d 214 (Ind. Ct. App. 2011) (remedy for a substantive mid-trial amendment can be reversal and new trial)