Katie Stancombe for www.theindianalawyer.com

The 7th Circuit Court of Appeals granted a man’s habeas corpus petition — and offered harsh comments for Indiana defense attorneys — after finding ineffective assistance of counsel for a man whose attorney blatantly disregarded an opportunity to object to amended charges filed late.

While David Jones was waiting for trial, the state twice made significant amendments to his charges of domestic battery despite far surpassing the expired omnibus date set for his case. Jones’ initial attorney knowingly let this slide, disregarding that any amendments were to be made 30 days prior to the set date pursuant to Ind. Code § 35-34-1-5 (1982).

A third amendment requested by the state was also granted during trial, despite Jones’ new attorney’s objection. Jones was ultimately sentenced to 20 years for his conviction of criminal confinement, enhanced by 25 years for being a habitual offender; and concurrent terms of eight years for battery resulting in serious bodily injury; and three years for intimidation. His sentence and one domestic battery conviction were eventually reduced due to double jeopardy concerns.

Jones was later denied his pro se petition for habeas corpus alleging ineffective assistance of counsel and failure of the state courts to grant him relief on that ground. He was further denied a certificate of appealability. Finally, before the 7^th Circuit Court of Appeals, Jones argued that his attorney’s failure to object to the first amended charge violated his Sixth Amendment right to effective assistance of counsel. The 7^th Circuit agreed.

Noting that it has seen such cases before, the 7^th Circuit Court showed its displeasure with the routine disregard for the rule as shown in Jones’ case. It emphasized that by pointing to an Indiana Supreme Court decision in Haak v. State, 695 N.E.2d 944, 951 (Ind. 1998) which affirmed the strict nature of the omnibus deadline.

“According to the state, there is nothing unique about Jones’s case. It tells us that defense attorneys around Indiana routinely ignored both the clear text of the statute and the Haak decision and allowed prosecutors to make untimely amendments. If that is an accurate account, it is hardly reassuring,” Chief Judge Diane Wood for the majoirty joined by Judge Ilana Rovner. “For a lawyer to fail to take advantage of a clear avenue of relief for her client is no less concerning because many others made the same error — if anything, it is more so.”

Further citing an almost identical case, Shaw v. Wilson, 721 F.3d 908, 911 (7th Cir. 2013), the 7^th Circuit panel added that “following the crowd is no excuse for depriving a criminal defendant of his constitutional right to the effective assistance of counsel.”

“Jones, like Shaw, had a strong argument for dismissing one of the charges against him, yet his trial attorney did not pursue it. The state suggests that Haak was widely ignored by defense counsel, but we have no hard data to back up that impression,” Wood continued. “We are loath to say that an attorney’s failure to heed the specific direction of the Indiana Supreme Court and the plain text of Indiana law is excusable. To the contrary, that action falls ‘outside the wide range of professionally competent assistance’ required by the Sixth Amendment.”

The 7^th Circuit Court further found a reasonable probability that his counsel’s errors prejudiced Jones, and that Indiana’s efforts to distinguish Shaw “fall flat.” It thus ruled Jones was entitled to the issuance of a writ of habeas corpus based on his attorney’s failure to object to an untimely amendment to his charges in David Jones v. Dushan Zatecky, 17-2606. It thus vacated the district court’s denial and remanded with instructions to issue the writ within 120 days solely on Jones’ criminal confinement conviction.

However, Senior Judge Daniel Manion dissented from the panel majority in a separate opinion, arguing that he would not extend Shaw’s reasoning to Jones’ case.

“Because of Indiana’s ‘file something’ rule, it did not matter how successful appellate counsel thought the claim might be; he was legally bound to make the best argument he could, even if that argument was (ultimately) a loser,” Manion wrote in dissent. “In this case, Jones’s trial counsel was not operating under that same constraint, so the situations are not the same.”