William E. Mays, Appellant-Petitioner,
State of Indiana, Appellee-Respondent.
from the Marion Superior Court Cause No. 49G06-1504-PC-14242
The Honorable Mark D. Stoner, Judge, The Honorable Jeffrey L.
Attorney for Appellant Cara Schaefer Wieneke Brooklyn,
Attorneys for Appellee Curtis T. Hill Attorney General George
P. Sherman Deputy Attorney General Indianapolis, Indiana
of the Case
William Mays appeals from the post-conviction
court's denial of his petition for post-conviction
relief. Mays presents a single issue for our review, namely,
whether the post-conviction court erred when it concluded
that Mays did not receive ineffective assistance of appellate
counsel in his direct appeal. We hold that Mays'
appellate counsel performed deficiently when she did not
include in the record on appeal a pretrial transcript
relevant to the issues raised on appeal. However, we also
hold that Mays cannot establish that the result of his direct
appeal would have been different but for his appellate
counsel's deficient performance. Accordingly, we affirm
the post-conviction court's denial of Mays' petition.
and Procedural History
The facts underlying Mays' convictions for attempted
murder, a Class A felony, and unlawful possession of a
firearm by a serious violent felon, a Class B felony, were
stated by this Court in his direct appeal:
Shortly before midnight on October 14, 2005, Stanley Flowers,
Jr. ("Flowers") drove his blue Chevrolet Avalanche
truck to the Shadeland Court Apartments to meet Bobby
Thompkins ("Thompkins"), nicknamed
"Forty," who was driving a burgundy Dodge Stratus
and had Mays and another individual nicknamed "Cuz"
in his car. Tr. p. 55-56. Mays, Thompkins, and Cuz got into
Flowers' truck, and Flowers drove to a liquor store,
where they purchased a pint of liquor and began drinking it
in the truck. Flowers then drove Mays, Thompkins, and Cuz to
a downtown Indianapolis nightclub called "The
Government." Id. at 57. The four men drank some
more liquor in the truck before entering the nightclub around
When the four men left the nightclub around closing time at
3:00 a.m., they heard gunshots in the alley behind the
nightclub, and then Mays pulled out a little chrome gun. No
more gunshots were fired, and Flowers drove the group back to
the Shadeland Court Apartments with Mays sitting in the front
passenger seat, Cuz sitting in the rear passenger seat, and
Thompkins sitting in the rear driver's side seat. Flowers
parked his truck in the apartment's parking lot, and the
four men sat in the truck talking and drinking. Mays,
Thompkins, and Cuz also snorted cocaine.
As they were sitting in the truck, Mays and Flowers began to
argue, and Mays told Flowers that he was going to "take
[Flowers'] truck and take [his] stuff[.]"
Id. at 62. When Flowers told Mays that Mays was not
going to take his truck, Mays pulled out his pistol and shot
Flowers in the right upper arm. Flowers jumped out of his
truck, and Mays shot Flowers again in the arm. Flowers ran to
a fence that was fifteen to twenty feet away from his truck,
and, as Flowers attempted to climb over the fence, Mays shot
Flowers in the back. Flowers got to the other side of the
fence, heard more shots being fired, and lay on the ground
pretending to be dead until he no longer heard any more
gunshots. Flowers then crawled along the fence line until he
encountered some construction workers working on a bridge.
One of the workers called police, and once the police
arrived, Flowers told one of the officers that
"Will" shot him. Id. at 68, 132. Flowers
was then taken to the hospital for treatment.
Leander Scott ("Scott"), who lived in the Shadeland
Court Apartments, returned home to the apartments around 3:40
a.m. and noticed a maroon Stratus that looked like
Thompkins' car, with two or three guys inside, drive out
of the apartment's parking lot. After Scott parked his
car, he saw a blue truck, which had the keys in the ignition
and the two passenger doors open with the windows down,
parked in the parking lot. Scott closed the truck's
windows and doors, locked the truck, left a note on the truck
indicating that "Maintenance has keys," and dropped
the keys at the apartment's office. Id. at 114.
A police evidence technician arrived at the Shadeland Court
Apartments later that morning and processed Flowers'
truck for evidence. The technician was able to obtain a
latent print from the truck's rear passenger window, and
that print was later identified as matching Mays' right
Flowers remained in the hospital for one week for treatment
of his "potentially life threatening" injuries.
Id. at 174. A police detective visited Flowers a few
days after the shooting, and Flowers told the detective that
Mays shot him and "immediately" identified Mays in
a photo array. Id. at 278.
On October 27, 2005, the State charged Mays with Count I,
aggravated battery, a Class B felony; Count II, unlawful
possession of a firearm by a serious violent felon, a Class B
felony; Count III, battery as a Class C felony; and Count IV,
carrying a handgun without a license enhanced to a Class C
felony. The trial court set the omnibus date for December 23,
On December 27, 2005, Mays belatedly filed a Notice of Alibi
Defense, which alleged that he was at his girlfriend's
house on the night of the alleged crimes. The trial court
held a hearing and permitted Mays to belatedly file his alibi
notice. The trial court vacated the January 9, 2006, trial
date and set a pre-trial conference for February 14, 2006.
On February 13, 2006, the State filed a motion to amend the
charging information to add a count of attempted murder. In
its motion, the State acknowledged that the motion was being
filed after the omnibus date but asserted that the amendment
did not prejudice Mays' substantial rights because it
would not affect his anticipated alibi defense. According to
the State's motion, it originally discussed its intention
to add an attempted murder count with Mays' attorney on
the day that Mays filed his alibi notice, but it agreed to
delay its filing of the amended charge pending plea
negotiations with Mays under the original charges, and Mays
agreed that "although these negotiations started after
the omnibus date, this time during these negotiations would
not count against the State." Appellant's App. p.
48. In its motion to amend, the State also noted that it
contacted Mays' attorney prior to filing its motion to
amend "to determine whether he objects to th[e]
motion" and that Mays' counsel did "object to
the amended count." Id. The following day, the
trial court held the pre-trial hearing and granted the
State's motion to amend the charging information to add
Count V, attempted murder, a Class A felony. The record [on
appeal] does not indicate that Mays objected to the amendment
during the pre-trial conference or requested a continuance.
Mays v. State, No. 49A05-0609-CR-482, 2007 WL
2429254, at *1-2 (Ind.Ct.App. Aug. 29, 2007) (footnotes
omitted; some alterations in original), trans.
denied ("Mays I"). Following his
April 2006 trial, the jury found Mays guilty of several
offenses, and the trial court entered judgment of conviction
against Mays for attempted murder, a Class A felony, and for
unlawful possession of a firearm by a serious violent felon,
a Class B felony.
Mays appealed his convictions. On direct appeal, he argued,
in relevant part, that the trial court erred under Indiana
Code Section 35-34-1-5(b) (2005), which prohibited the State
from amending the charging information later than thirty days
prior to the omnibus date in felony cases. In support of that
argument, Mays relied on our Supreme Court's January 2007
decision in Fajardo v. State, in which our Supreme
Court had held that errors under that statute, when they
related to amendments "of substance," were
reversible errors without regard to actual prejudice suffered
by the defendant. 859 N.E.2d 1201, 1207-08 (Ind. 2007).
However, we did not reach the merits of Mays'
Fajardo claim. Instead, we held that Mays' trial
counsel had failed to preserve that issue for our review
because "the record before us," namely, the CCS,
"d[id] not indicate that Mays objected to the amendment
during the [February 14, 2006, ] pre-trial conference on the
motion [to amend]" or that he had "requested a
continuance" at that conference. Mays I, 2007
WL 2429254, at *7 (citing Absher v. State, 866
N.E.2d 350, 356 (Ind.Ct.App. 2007)). We noted that the record
on appeal "d[id] not include a transcript of the
February 14, 2006, pre-trial [conference]." Id.
at *2 n.8. We also noted that Mays had made "no . . .
allegation of fundamental error" on appeal. Id.
at *7 n.11. Accordingly, we rejected Mays' argument and
affirmed his convictions.
In May of 2015, Mays filed his petition for post-conviction
relief, which he later amended. In his amended petition, Mays
asserted only that his appellate counsel had rendered
ineffective assistance "for failing to adequately
present Mays' Fajardo claim on appeal, which
resulted in the claim being waived." Appellant's
App. Vol. 2 at 27. At an ensuing evidentiary hearing on
Mays' petition, the post-conviction court admitted into
the record the transcript of the February 14, 2006, pretrial
conference. That six-page transcript unambiguously
demonstrated that Mays' trial counsel had objected,
vehemently, to the State's proffered amendment to the
charging information. Ex. Vol. at 85-87.
Mays also called his appellate counsel as his only witness at
the evidentiary hearing. His appellate counsel testified as
Q. . . . [A]s part of your . . . appellate representation,
would you review the transcript?
* * *
Q. And you testified that somebody else [at the Marion County
Public Defender Agency] prepared the Notice of Appeal. . . .
Did that person always request that every hearing that ...