from the Vanderburgh Superior Court The Honorable Robert J.
Pigman, Judge Trial Court Cause No. 82D03-1712-F3-7410
ATTORNEYS FOR APPELLANT Curtis T. Hill, Jr. Attorney General
of Indiana Caroline G. Templeton Deputy Attorney General
ATTORNEY FOR APPELLEE Dawnya G. Taylor Evansville, Indiana.
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.
and Procedural History
On November 29, 2017, officers from the Evansville Police
Department attempted to conduct a traffic stop of McFarland.
Appellant's App. Vol. 2 at 46. 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.
Id. 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,
later amended one of the Level 5 felonies to a Level 3 felony
because one of the adults subsequently died from his
injuries. Id. at 5, 38. That same day, the State
also alleged that McFarland was a habitual offender, citing
his conviction for theft in 82C01-1007-FD-805 ("the
prior theft conviction") and his conviction for carrying
a handgun without a license in 82D02-1305-FC-638.
Id. at 5, 34. On January 3, 2018, the trial court
set the omnibus date for April 1, 2018. Id. at 8.
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. Id. at 11. 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. Id. at 75. 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 in
82D02-1407-F5-1013 ("F5-1013") for carrying a
handgun without a license. Id. at 11, 75; Tr.
Vol. 2 at 4-5.
McFarland filed an objection, which the trial court heard on
the morning of trial. Id. at 76; Tr. Vol. 2
at 1-17. At that hearing, the State argued that its proposed
amendment would not prejudice McFarlane because
McFarland's attorney had represented McFarland in F5-1013
and was familiar with that case. Id. at 4-5. The
State also argued that even if the proposed amendment
prejudiced McFarland's trial preparation, the trial
court, upon McFarland's request, would be required to
continue the trial date. Id.; see Ind. Code
§ 35-34-1-5(d). McFarland responded that the State's
proposed amendment was a substantive change to the charging
information because it took away McFarland's defense
that, as charged, the State's habitual offender charge
must fail as a matter of law because only one of the two
predicate convictions was a felony conviction. Tr. Vol.
2 at 7. 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. Tr. Vol. 2 at 14-15.
Per the State's request, the trial court certified its
ruling for interlocutory review. The State sought leave from
this court to bring a permissive interlocutory appeal, and on
November 9, 2018, we granted the State's request and
accepted jurisdiction over this appeal.
Appellant's App. Vol. 2 at 13.
Relying on Indiana Code section 35-34-1-5(b)(2),
State argues that the trial court abused its discretion in
denying its motion to amend the habitual offender charging
information because the proposed amendment would not have
prejudiced McFarland's substantial rights, even though it
sought leave to file the amendment eight months after the
original charging information was filed and less than two
business hours before trial. The State contends that it
provided McFarland with adequate notice because McFarland
knew his own criminal history and, even if he did not, the
State actually provided McFarland a copy of his criminal
history soon after he was charged. The State also argues that
the amendment would not undermine McFarland's ability to
prepare for trial, correctly noting that upon McFarland's
request, the trial court would have been obligated under
Indiana Code section 35-34-1-5(d) to continue the trial date
to give McFarland more time to prepare for trial. Finally,
the State argues ...