Kirsch, J.
Through this permissive interlocutory appeal, the State of Indiana (“the State”) appeals the trial court’s denial of the State’s request to amend the habitual offender charging information for Frederick Obryan McFarland (“McFarland”), raising the following restated issue: whether the trial court abused its discretion by denying the State’s motion to amend the habitual offender charging information, which the State filed three calendar days before trial.
On November 29, 2017, officers from the Evansville Police Department attempted to conduct a traffic stop of McFarland. McFarland did not stop and, instead, sped away, ran several stop signs, and collided with a 2003 PT Cruiser, which had the right of way. The PT Cruiser was carrying four people; an infant and a two-year-old died from their injuries, and two adults were transported to the hospital. Id.
On December 1, 2017, the State charged McFarland with four counts of resisting law enforcement, two counts as Level 3 felonies and two counts as Level 5 felonies, and later amended one of the Level 5 felonies to a Level 3 felony because one of the adults subsequently died from his injuries. That same day, the State also alleged that McFarland was a habitual offender, citing his conviction for theft (“the prior theft conviction”) and his conviction for carrying a handgun without a license. On January 3, 2018, the trial court set the omnibus date for April 1, 2018.
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. 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 for carrying a handgun without a license.
McFarland filed an objection, which the trial court heard on the morning of trial. …
Relying on Nunley v. State, 995 N.E.2d 718 (Ind. Ct. App. 2013), the trial court 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.
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Here, we find that the State’s proposed amendment was one of substance, not form. First, if the trial court had allowed the amendment, McFarland’s defense that the State had listed only one valid predicate conviction would have withered away. See Gibbs, 952 N.E.2d at 221. Similarly, the proposed amendment was substantive because it was necessary for the State to bring a valid, prima face allegation that McFarland was a habitual offender. See id. The State admitted this. Second, in Nunley v. State, we found that an amendment to a habitual offender charging information under nearly identical circumstances was a substantive amendment. See Nunley, 995 N.E.2d at 723-25.
Because the amendment was one of substance, the State was required to show that the amendment would not have prejudiced McFarland’s substantial rights. See Ind. Code § 35-34-1-5(b). …
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In several recent cases, we have affirmed pretrial but post-omnibus-date amendments of substance to an information. In Mays v. State, 120 N.E.3d 1070, 1081-82 (Ind. Ct. App. 2019), trans. denied, we found no prejudice where the State’s notice of the proposed amendment was given to the defendant nearly four months before trial and the alibi defense was equally available after the amendment. In Barnett v. State, 83 N.E.3d 93, 101-02 (Ind. Ct. App. 2017), trans. denied, we found that Barnett’s substantial rights were not prejudiced where the State filed its amendment five weeks after the omnibus date but two months before the beginning of trial and three months before Barnett presented his case in chief and because the amendment arose from the same “time [and] place as the original counts.” … And, finally, in Gaby v. State, 949 N.E.2d 870, 875 (Ind. Ct. App. 2011), we found no prejudice where the State moved to amend the charging information one week before trial to correct an error in the date of an alleged molestation offense because the amendment did not deprive Gaby of his defense of challenging the victim’s recollection of the alleged event.
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. See Gomez, 907 N.E.2d at 611. 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. Thus, McFarland’s defense would not have been “equally available” if the trial court allowed the amendment. See Gibbs, 952 N.E.2d at 221.
Had the trial court allowed the amendment, McFarland would have been left scrambling to fashion a new defense within a matter of hours. See Erkins v. State, 13 N.E.3d 400, 405-06 (Ind. 2014); Gomez, 907 N.E.2d at 611. 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. …
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.
Affirmed.
Vaidik, C.J., and Altice, J., concur.