Robb, J.
Following a jury trial, Ike Campbell was convicted of, among other crimes, unlawful possession of a firearm by a serious violent felon, a Level 4 felony, and found to be an habitual offender. The trial court sentenced Campbell to an aggregate sentence of thirty-three years in the Indiana Department of Correction (“DOC”). Campbell appeals and raises two issues for our review: (1) whether the trial court abused its discretion by allowing the State to file a belated habitual offender enhancement; and (2) whether the evidence is sufficient to support Campbell’s unlawful possession of a firearm by a serious violent felon conviction. Concluding the trial court abused its discretion by allowing the State to file the belated enhancement without good cause and the evidence is sufficient to support Campbell’s conviction, we affirm in part, and reverse and remand in part.
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Campbell argues that the trial court abused its discretion by allowing “the belated filing of an habitual offender enhancement one business day before trial without requiring a showing or making any finding of good cause for the tardiness.” Brief of Appellant at 14. We agree.
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Our legislature has made it clear that the State must affirmatively show “good cause” for the belated addition before an habitual offender charge may be filed late. Attebury v. State, 703 N.E.2d 175, 179 (Ind. Ct. App. 1998), overruled on other grounds by Williams v. State, 735 N.E.2d 785, 790 (Ind. 2000). “‘Good cause’ is not defined in the statute, but it must require something different, and . . . something more than lack of prejudice.” Id.
The State advanced the following grounds in support of its motion to amend the information by adding the habitual offender enhancement: (1) it filed a notice of intent to file the habitual offender charge on May 22, 2018; and (2) Campbell “has had notice of the filing and the discovery documents [pertinent to the enhancement] and there is no substantial prejudice.” Appellant’s App., Vol. II at 123. Before Campbell filed his objection or sought a continuance, the trial court granted the State’s motion. When the parties appeared for trial, Campbell again objected to the filing, arguing the State failed to show good cause. In response, the State claimed its notice of intent was clear that it would file the charge if “good faith plea negotiations are not successful” meaning “[i]f we go to trial, we will be filling [sic] the habitual.” Supp. Tr., Vol. II at 39. And the State’s position was that they had been engaged in ongoing plea negotiations with Campbell because multiple prosecutors “reach[ed] out to him to see if we could find a plea agreement that . . . we can both agree to on a serious violent felon charge without filing the habitual. When he said no, we are going to jury trial – that is when we filed it. [T]hat is good cause shown.” Id. at 40. In fact, the State claimed it waited “until the last minute to give [Campbell] the opportunity to get a lower plea agreement[.]” Id.
However, Campbell claimed there were no “plea negotiations.” Id. Instead, it appears that the State initially offered Campbell a plea in May 2018 – the terms of which are not in the record – and he declined to take the deal. Several months later, in August, the State asked if Campbell was interested in a plea agreement, but the parties could not agree to terms. In January 2019, the State reached out to defense counsel via e-mail stating it was willing to honor the prior plea offer. Again, Campbell communicated that he was only willing to plead guilty to resisting law enforcement and possession of marijuana, but the State responded that he must plead guilty to the unlawful possession of a firearm by a serious violent felon as part of any plea. On February 1, another prosecutor e-mailed defense counsel asking if Campbell was interested in making a counteroffer. After speaking with Campbell, defense counsel replied that Campbell’s position had not changed. The State subsequently filed its motion to amend the information by adding the habitual offender charge.
This court has upheld the finding of good cause for the belated filing of an habitual offender charge due to ongoing plea negotiations. See Johnican v. State, 804 N.E.2d 211, 215 (Ind. Ct. App. 2004). However, that is not the situation before us. Here, the State tendered the same plea offer several times and then asked if Campbell wanted to make a counteroffer. There is no evidence Campbell’s counsel ever attempted to solicit a plea offer from the State, that the State agreed not to file the enhancement if Campbell accepted its plea offer, or that the parties were engaged in bona fide and ongoing plea negotiations up until the State’s filing…Ultimately, we are not persuaded that the State’s periodic tendering of the same plea offer that had been repeatedly rejected by a defendant, whose position remained constant, constitutes ongoing plea negotiations.
The State filed its notice of intent to file the habitual offender charge in May 2018 but then waited until the day before trial to actually do so. The State had ample opportunity within the statutory time frame to file a timely habitual offender enhancement and, in fact, even represented that it planned to do so several times. Although the trial had been scheduled and subsequently rescheduled several times, there were no pending or outstanding issues that would have prevented the State from filing the enhancement nor was there any indication that the matter would not proceed to trial. The State offers no reason, and we are unaware of any, as to why it could not have filed the habitual offender charge and continued with plea negotiations. Instead, the State’s after hours filing of the late addition on February 5 was essentially a filing on the day before the scheduled trial without good cause. Good cause requires more than lack of prejudice and the State has failed to meet this burden. See Attebury, 703 N.E.2d at 179. Therefore, we conclude that the trial court abused its discretion by allowing the State to file a belated habitual offender charge without good cause.
Conclusion
For the reasons set forth above, we conclude there is sufficient evidence to support Campbell’s unlawful possession of a firearm by a serious violent felon conviction and we therefore affirm his conviction. We also conclude that the trial court abused its discretion by allowing the State to file a late habitual offender charge without good cause. Therefore, we reverse the trial court’s habitual offender enhancement and remand with instructions to vacate the enhancement and resentence Campbell accordingly
Affirmed in part, reversed and remanded in part
Crone, J., concurs.
Brown, J., concurs in part and dissents in part with opinion.
Brown, Judge, concurring in part and dissenting in part.
I respectfully dissent from the majority’s conclusion that the trial court abused its discretion by allowing the State to file an habitual offender charge. The Indiana Supreme Court has held that the purpose of Ind. Code § 35-34-1-5(e) “is to allow a defendant sufficient time to prepare a defense for an habitual offender charge.” Haymaker v. State, 667 N.E.2d 1113, 1114 (Ind. 1996). Given that the State filed a notice on May 22, 2018, asserting that it intended to file an habitual offender sentencing enhancement if good faith plea negotiations were unsuccessful, the trial court granted Campbell’s motion to continue, and a trial was not held until more than four months after the habitual offender charge was filed, I would conclude that the trial court did not abuse its discretion in allowing the State to file the habitual offender allegation. I concur with the majority in all other respects.