Najam, J.
Under Indiana Code Section 35-34-1-5(b)(2) (2018), a trial court may permit the State to amend a charging information in matters of substance “at any time . . . before the commencement of trial if the amendment does not prejudice the substantial rights of the defendant.” Here, two business days before the commencement of Levern Howard’s trial on thirteen counts relating to dealing in and possession of illicit substances, the State moved to add four new counts of neglect of a dependent based on the manner in which Howard had stored firearms at her residence. Over Howard’s objection at the beginning of her trial, the court permitted the State to amend the information and to immediately present its evidence on all counts. …
We hold that the trial court abused its discretion when it permitted the State to amend the information without giving Howard a reasonable opportunity to prepare for and defend against the new counts. Accordingly, we reverse her convictions on those counts. …
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Under Indiana Code Section 35-34-1-5(b)(1), the default timeframe for the State to seek to amend a charging information in a matter of substance is up to “thirty (30) days . . . before the omnibus date” if “the defendant is charged with a felony.” The State properly does not suggest on appeal that the amended counts here were anything other than amendments of substance. See, e.g., Mays v. State, ___ N.E.3d ___, No. 18A-PC-2071, 2019 WL 1217757, at *7 (Ind. Ct. App. Mar. 15, 2019) (stating that adding “an entirely new charge to the charging information . . . is patently [an amendment] of substance”), not yet certified. While the original neglect counts and the amended neglect counts were derived from the same statute, that does not mean that the amended counts were merely amendments in form to the original counts. Rather, the amended counts added four wholly new offenses based on facts and evidence other than that underlying the original counts.
In any event, as the State’s motion to amend the information here was nowhere close to the omnibus date, the State moved to amend the information not under Indiana Code Section 35-34-1-5(b)(1) but instead under Indiana Code Section 35-34-1-5(b)(2). Under that provision, the trial court may permit the State, following the State’s written notice to the defendant, to make a late amendment to an information in a matter of substance “at any time . . . before the commencement of trial if the amendment does not prejudice the substantial rights of the defendant. . . .” I.C. § 35-34-1-5(b)(2).
As the Indiana Supreme Court has explained:
A defendant’s substantial rights include a right to sufficient notice and an opportunity to be heard regarding the charge; and, if the amendment does not affect any particular defense or change the positions of either of the parties, it does not violate these rights. Ultimately, the question is whether the defendant had a reasonable opportunity to prepare for and defend against the charges.
Erkins v. State, 13 N.E.3d 400, 405-06 (Ind. 2014) (emphasis added; citations and quotation marks omitted). The right to a reasonable opportunity to prepare for and defend against the 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) …
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… Counting from the day of the State’s notice to Howard’s first opportunity to cross-examine the State’s witnesses on the amended counts, the totality of time Howard had to prepare for and then execute her defense on the amended counts was a total of sixteen calendar days. That is well short of the more common scenario of two or more months; it certainly is not long enough to presume, as we did in Mannix and other cases, that the defendant had ample time to prepare her defense to the amended counts. And the sixteen days here are one day more than half the time Indiana Code Section 35-34-1-5(b)(1) requires the State to provide to the defendant prior to the omnibus date, which of course often results in far more time before trial.
Further, while the amended counts arose out of the same time and place as the original counts, we are not persuaded that the amended counts were premised on the same underlying facts as the original counts. …
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As the amended counts were not based on the same underlying facts as the original counts, the late amendment substantially affected her defense in that she had no reasonable time to engage in pretrial investigation of the amended counts in order to effectively prepare for cross-examining the State’s witnesses on them. …
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Nonetheless, both the State and the dissent contend that Howard should have seen the amended counts coming because she knew from the beginning that the firearms were in the residence with the children. We reject that argument. …
Finally, although not required of the State under Indiana Code Section 35-34-15(b)(2), we nonetheless note that the State had no good cause for having waited until nearly the last minute to move to amend the information. …
… We hold that the trial court abused its discretion when it permitted the State to amend the charging information, and we reverse Howard’s convictions under the amended counts.
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Pyle, J., concurs.
Altice, J., concurs in part and dissents in part with separate opinion.
… I respectfully dissent, however, from the majority’s determination that the trial court abused its discretion in permitting the State to amend the charging information. The amended charging information added four new charges of neglect of a dependent that
mirrored the four original neglect charges except for the fact that the new charges alleged the presence and accessibility of unsecured firearms, as opposed to illicit drugs. Given the other charges Howard faced—especially the fact that the presence of firearms was used to enhance certain offenses—she cannot now claim she was surprised by the new charges or the evidence giving rise thereto.
Moreover, as the majority notes, Howard’s “apparent defense strategy was to hold the State to its burden of proof, especially through cross-examination of the State’s witnesses.” Id. at 17. Under these circumstances, I think sixteen days was more than sufficient time for counsel to prepare a defense to the new charges. Indeed, Howard’s defense to the separate groups of neglect charges was essentially the same. There was no new evidence required and no need for additional witnesses to support or defend against the new charges. To that end, I am not persuaded that the late amendment substantially affected Howard’s defense. …