Brown, J.
….
On October 5, 2012, the State charged Zamani with Count I, aggravated battery as a class B felony; and Count II, battery committed by means of a deadly weapon as a class C felony. On November 20, 2012, the State further charged Zamani with Count III, attempted murder, a class A felony, and alleged that he was an habitual offender.
Meanwhile, on November 15, 2012, Zamani filed a motion for psychiatric examination to determine his competence to stand trial. … On February 21, 2013, the court found Zamani not competent to stand trial and committed him to the Division of Mental Health and Addiction.
In a letter to the trial court dated June 6, 2013, the Superintendent of Logansport State Hospital certified that Zamani had “attained the ability to understand the proceedings and assist in the preparation of his defense.” Id. at 73. … In July 2013, [Zamani’s mother] submitted a letter together with health services documentation regarding Zamani’s history of mental illness to the court. Zamani sent letters to the court stating in part that his attorney was sabotaging his case and that he feared for the safety of his family, his mother, and his life and would like some of kind of protective services.
At a hearing on January 9, 2014, Zamani’s defense counsel requested that Zamani’s competence to stand trial be reevaluated, and the court entered an order that Dr. Callaway and Dr. Parker examine his competency. In a report dated January 31, 2014, Dr. Parker stated that his diagnosis of schizophrenia was based in part on Zamani’s long history of treatment for psychotic symptoms including hallucinations, that Zamani reported ongoing auditory hallucinations, that he believed the state hospital psychiatrist’s report listing a diagnosis of malingering for Zamani was not accurate, and that it was his opinion that Zamani was capable of understanding the legal proceedings but not capable of assisting counsel. … Following a competency hearing, the court issued an order on March 26, 2014, finding that Zamani was competent to stand trial, and setting a jury trial for April 21, 2014. …
….
The omnibus date in this case was ultimately set for November 6, 2013. Thus, under [I.C. § 35-36-2-1], Zamani was required to file his notice of an insanity defense by October 17, 2013 [twenty days before the omnibus date]. The court held a final pretrial hearing on April 16, 2014, at which … Zamani’s counsel verbally indicated that Zamani stated that he believes he is insane.
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The State maintains that Zamani did not make a showing of good cause under the statute and thus the court properly denied his belated notice of insanity, noting that any bases for asserting an insanity defense were well known long before the period for timely filing a notice. …
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The record shows that the possible bases upon which Zamani could allege an insanity defense, if he and his counsel concluded it was warranted, were known to him and his counsel well in advance of the date twenty days before the scheduled omnibus date of November 6, 2013.
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Based upon the record, we cannot say the trial court abused its discretion in determining that Zamani did not demonstrate good cause as to why his late notice should be accepted and thus in denying his belated, verbal motion to assert an insanity defense…. Zamani has not demonstrated he is entitled to reversal of his conviction or a new trial on this basis.7
[Footnote 7:] While the issue of whether trial counsel rendered ineffective assistance may be raised in a subsequent postconviction proceeding, that is not the issue before us today. Our review is for an abuse of discretion in the trial court’s ruling on Zamani’s belated request.
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Affirmed.
Bailey, J., concurs.
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Robb, Judge, dissenting.
I acknowledge that Zamani did not timely file a notice of intent to assert an insanity defense by the terms of Indiana Code section 35-36-2-1. But Zamani’s mental health was clearly an issue from the outset of this prosecution and the trial had not yet started when he made his request. Well after the omnibus date, one of the two court-appointed mental health professionals submitted a report opining that Zamani was not capable of understanding the legal proceedings or assisting his counsel, substantiating his alleged mental state. The assertion of an insanity defense could not have come as a shock to the State, and would not have prejudiced it, as no additional witnesses would have needed to be procured.
Because I believe Zamani showed good cause for allowing the filing of a notice of intent to assert an insanity defense and that such filing would be in the interest of justice,8 I would hold that the trial court abused its discretion in denying the notice to assert an insanity defense and remand for a new trial.
[Footnote 8:] Not only would such allowing the insanity defense to be raised at trial allow the jury to evaluate all the relevant evidence, disallowing it only because it was filed late invites an ineffective assistance of trial counsel claim in a post-conviction relief proceeding.
….
On October 5, 2012, the State charged Zamani with Count I, aggravated battery as a class B felony; and Count II, battery committed by means of a deadly weapon as a class C felony. On November 20, 2012, the State further charged Zamani with Count III, attempted murder, a class A felony, and alleged that he was an habitual offender.
Meanwhile, on November 15, 2012, Zamani filed a motion for psychiatric examination to determine his competence to stand trial. … On February 21, 2013, the court found Zamani not competent to stand trial and committed him to the Division of Mental Health and Addiction.
In a letter to the trial court dated June 6, 2013, the Superintendent of Logansport State Hospital certified that Zamani had “attained the ability to understand the proceedings and assist in the preparation of his defense.” Id. at 73. … In July 2013, [Zamani’s mother] submitted a letter together with health services documentation regarding Zamani’s history of mental illness to the court. Zamani sent letters to the court stating in part that his attorney was sabotaging his case and that he feared for the safety of his family, his mother, and his life and would like some of kind of protective services.
At a hearing on January 9, 2014, Zamani’s defense counsel requested that Zamani’s competence to stand trial be reevaluated, and the court entered an order that Dr. Callaway and Dr. Parker examine his competency. In a report dated January 31, 2014, Dr. Parker stated that his diagnosis of schizophrenia was based in part on Zamani’s long history of treatment for psychotic symptoms including hallucinations, that Zamani reported ongoing auditory hallucinations, that he believed the state hospital psychiatrist’s report listing a diagnosis of malingering for Zamani was not accurate, and that it was his opinion that Zamani was capable of understanding the legal proceedings but not capable of assisting counsel. … Following a competency hearing, the court issued an order on March 26, 2014, finding that Zamani was competent to stand trial, and setting a jury trial for April 21, 2014. …
….
The omnibus date in this case was ultimately set for November 6, 2013. Thus, under [I.C. § 35-36-2-1], Zamani was required to file his notice of an insanity defense by October 17, 2013 [twenty days before the omnibus date]. The court held a final pretrial hearing on April 16, 2014, at which … Zamani’s counsel verbally indicated that Zamani stated that he believes he is insane.
….
The State maintains that Zamani did not make a showing of good cause under the statute and thus the court properly denied his belated notice of insanity, noting that any bases for asserting an insanity defense were well known long before the period for timely filing a notice. …
….
The record shows that the possible bases upon which Zamani could allege an insanity defense, if he and his counsel concluded it was warranted, were known to him and his counsel well in advance of the date twenty days before the scheduled omnibus date of November 6, 2013.
….
Based upon the record, we cannot say the trial court abused its discretion in determining that Zamani did not demonstrate good cause as to why his late notice should be accepted and thus in denying his belated, verbal motion to assert an insanity defense…. Zamani has not demonstrated he is entitled to reversal of his conviction or a new trial on this basis.7
[Footnote 7:] While the issue of whether trial counsel rendered ineffective assistance may be raised in a subsequent postconviction proceeding, that is not the issue before us today. Our review is for an abuse of discretion in the trial court’s ruling on Zamani’s belated request.
….
Affirmed.
Bailey, J., concurs.
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Robb, Judge, dissenting.
I acknowledge that Zamani did not timely file a notice of intent to assert an insanity defense by the terms of Indiana Code section 35-36-2-1. But Zamani’s mental health was clearly an issue from the outset of this prosecution and the trial had not yet started when he made his request. Well after the omnibus date, one of the two court-appointed mental health professionals submitted a report opining that Zamani was not capable of understanding the legal proceedings or assisting his counsel, substantiating his alleged mental state. The assertion of an insanity defense could not have come as a shock to the State, and would not have prejudiced it, as no additional witnesses would have needed to be procured.
Because I believe Zamani showed good cause for allowing the filing of a notice of intent to assert an insanity defense and that such filing would be in the interest of justice,8 I would hold that the trial court abused its discretion in denying the notice to assert an insanity defense and remand for a new trial.
[Footnote 8:] Not only would such allowing the insanity defense to be raised at trial allow the jury to evaluate all the relevant evidence, disallowing it only because it was filed late invites an ineffective assistance of trial counsel claim in a post-conviction relief proceeding.