Anthony Wayne Barnett v. State of Indiana

FILED
08/25/2017, 11:19 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael K. Ausbrook Curtis T. Hill, Jr.
Bloomington, Indiana Attorney General of Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Anthony Wayne Barnett, August 25, 2017
Appellant-Defendant, Court of Appeals Case No.
22A01-1510-CR-1742
v. Appeal from the
Floyd Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff. Richard G. Striegel, Judge
Trial Court Cause No.
22D01-0212-FC-548

Kirsch, Judge.

[1] This case returns to our court following the grant of a conditional writ of habeas

corpus by the United States District Court for the Northern District of Indiana

(“the District Court”), which held that Anthony Wayne Barnett (“Barnett”)

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was denied the effective assistance of appellate counsel on direct appeal when

counsel did not raise an appellate challenge to the timeliness of the State’s

second amendment to Barnett’s charging information. The District Court,

following the reasoning of the Seventh Circuit in Shaw v. Wilson, 721 F.3d 908,

912 (7th Cir. 2013), reh’g denied, reh’g en banc denied, cert. denied, concluded that

Barnett was entitled to a new direct appeal to challenge his 2003 convictions for

Class A felony burglary,1 Class C felony battery,2 and Class D felony

intimidation,3 and the finding that he was an habitual offender.4 On appeal,

Barnett raises numerous issues, which we consolidate and restate as:

I. Whether this court is barred from hearing Barnett’s new direct
appeal;

II. Whether the State’s second amendment to Barnett’s charging
information, which added two new charges—Class A felony
burglary and Class D felony intimidation—was impermissibly
late under Indiana Code section 35-34-1-5, thus requiring a
dismissal of those charges; and

III. Whether Barnett’s appearance without counsel at a hearing
on the State’s first amendment to the charging information,

1
See Ind. Code § 35-43-2-1.
2
See Ind. Code § 35-42-2-1.
3
See Ind. Code § 35-45-2-1.
4
See Ind. Code § 35-50-2-8.

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 which added an habitual offender enhancement, denied Barnett
his Sixth Amendment right to counsel.

[2] We affirm.

Facts and Procedural History
[3] The facts supporting Barnett’s 2003 convictions were set forth in this court’s

unpublished memorandum decision affirming the post-conviction court’s denial

of Barnett’s petition for post-conviction relief. Barnett v. State, No. 22A01-0810-

PC-505, 2009 WL 4927545 (Ind. Ct. App. Dec. 22, 2009) (“Barnett II”),5 trans.

denied. Here, a summary of those facts will suffice. Cynthia Bogard (“Bogard”)

met Jeanette Lewis (“Lewis”) in 2002, and soon thereafter, Lewis started

bringing people to Bogard’s house to smoke crack. Barnett was one of the

people who used drugs at Bogard’s house, and on several occasions, Barnett

brought along women who would have sex with him in exchange for drugs.

Bogard felt she was no longer in control of her home and asked Barnett several

times to stop coming over, but Barnett laughed at her requests. Around the

same time, Barnett and his ex-wife, Tonya,6 were trying to reconcile.

[4] On December 10, 2002, Bogard called Tonya and told her about Barnett’s

behavior, hoping Tonya could help. That same day, Bogard and others were in

5
We refer to the different stages of Barnett’s case as follows: Barnett I is this court’s 2004 decision on
Barnett’s first direct appeal; Barnett II is this court’s 2009 decision on Barnett’s post-conviction appeal; and
Barnett III is the District Court’s 2015 decision granting Barnett a conditional writ of habeas corpus.
6
Barnett’s ex-wife’s name is spelled both as Tonya, Appellant’s Br. at 10, and Tanya, Trial Tr. at 263. We use
“Tonya,” the spelling included in the appellant’s brief.

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 her home when they heard pounding on the door. Bogard opened the door a

crack, peered out, and saw Barnett as he grabbed the door and pushed it open.

Barnett shoved Bogard down and started screaming that she had ruined his life

with Tonya. Barnett said he had brought two others to help beat up Bogard;

Barnett also told Bogard he had a gun in the car. Barnett stomped on Bogard

with his heel and threatened to kill her if she did not call Tonya and recant.

Barnett got the phone, dialed Tonya’s number, and had Bogard talk to her.

Once off the phone, Bogard fled to a neighbor’s house to call the police.

Bogard had a knot on her head, her head was bleeding, and her shoulder hurt.

She also had bruises on her shoulder, chest, and head—one of the bruises on

her chest near her shoulder was a pattern injury caused by the heel of a shoe.

Testimony at trial revealed that pattern injuries result from significant force; the

injuries were consistent with Bogard’s account of the attack.

[5] On December 13, 2002, the State charged Barnett with one count of Class C

felony battery. The trial court set the omnibus date for January 7, 2003 and

scheduled the jury trial for February 17, 2003.7 Barnett’s appointed attorney

(“trial counsel”) filed his appearance in the case on December 18, 2002. On

February 4, 2003, two weeks before the scheduled trial and almost a month

after the omnibus date, the State filed the first amended information, adding an

habitual offender count (“the habitual amendment”). That same day, the trial

court held a pretrial conference, at which Barnett “was apparently represented

7
The trial date was later changed to February 18 because February 17 was a court holiday.

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 by [trial counsel].” Appellant’s Br. at 12. On February 5,8 “the trial court held

an initial hearing of some sort with respect to the” habitual amendment (“the

habitual amendment hearing”), and Barnett, who appeared without counsel,9

did not object to the addition of the habitual count, but requested a

continuance. Appellant’s Br. at 12.

[6] On February 12, 2003, six days before Barnett’s scheduled trial and five weeks

after the omnibus date, the State filed a second amendment to the information

(“the second amended information”), which was based on the same underlying

acts, and added one count of Class A felony burglary resulting in bodily injury

and one count of Class D felony intimidation. Appellant’s Br. at 13 (citing

Appellant’s App. at 3, 35-36).10 On February 12 and 13, 2003, the trial court held

a hearing, and over Barnett’s objection, the trial court allowed the second

amended information. Two continuances were granted to Barnett, and the jury

trial began two months later. Testimony was heard on April 14 and continued

through April 16, 2003, at which time the trial court granted Barnett’s request

to adjourn in order to depose a key defense witness. The final two days of trial

were held on May 12 and May 13, after which the jury found Barnett guilty of

8
There is a discrepancy regarding the date of this hearing. Both parties assert that the hearing regarding the
habitual amendment was held on February 6; however, the CCS reflects that the hearing was held on
February 5, 2003. Accordingly, we refer to the hearing date as February 5, 2003.
9
The record before us contains no explanation as to why trial counsel did not appear at this hearing.
Appellant’s Br. at 12.
10
The only appendices in the record before us are the ones that Barnett filed in his 2004 direct appeal;
therefore, a reference to Appellant’s App. is a reference to those documents.

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 burglary, battery, and intimidation and found him to be an habitual offender.

The trial court ordered Barnett to serve an aggregate executed sentence of

eighty years—fifty years for Class A felony burglary and a concurrent five years

for Class C felony battery, with an habitual enhancement of thirty years added

to the burglary. No sentence was entered for the Class D felony intimidation

conviction. This court affirmed Barnett’s convictions and sentences, and our

Supreme Court denied transfer. Barnett v. State, No. 22A04-0312-CR-616 (Ind.

Ct. App. Sept. 29, 2004), trans. denied.

[7] In September 2005, Barnett filed a petition for post-conviction relief, alleging

that his trial counsel rendered ineffective assistance. He also argued that

appellate counsel had been ineffective on direct appeal for inadequately

challenging the habitual amendment and for not raising any challenge to the

timeliness of the second amended information. The post-conviction court

denied Barnett’s petition in September 2008, and this court affirmed that denial.

In pertinent part, we found that a challenge to the inclusion of the habitual

offender enhancement had been waived for failure to present an objection to the

trial court and that appellate counsel reasonably declined to challenge the

second amended information because late amendments not prejudicing a

defendant’s substantial rights were routinely allowed under prevailing

jurisprudence, and appellate counsel would have reasonably determined that a

challenge to the amendment would not succeed on appeal. Barnett II, 2009 WL

4927545, at *8-10. The Indiana Supreme Court denied transfer.

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[8] In 2010, Barnett filed a filed a petition for a writ of habeas corpus in federal

court, challenging his 2003 Floyd County convictions for burglary, battery,

intimidation, and the adjudication that he was an habitual offender. Initially,

the District Court denied relief, finding, in pertinent part, that our court had not

unreasonably applied clearly established federal law in adjudicating Barnett’s

claims of ineffective assistance of counsel. Barnett v. Superintendent, No. 3:10-

CV-157-TLS, 2013 WL 3338493, at *3, *7 (N.D. Ind. July 2, 2013) (“Barnett

III”). However, in February 2014, the United States Court of Appeals for the

Seventh Circuit (“Seventh Circuit”) remanded the matter back to the District

Court for reconsideration in light of Shaw v. Wilson, 721 F.3d 908 (7th Cir.

2013).

[9] Following additional briefing, the District Court on remand granted conditional

federal habeas relief for Barnett’s claim of ineffective assistance of appellate

counsel regarding the second amended information. The District Court’s

judgment, in part, read:

[T]he amended Petition under 28 U.S.C. § 2254 for Writ of
Habeas Corpus by a Person in State Custody . . . is
CONDITIONALLY GRANTED . . . . Within 120 days of this
Order, the State must either release the Petitioner or grant him leave to
file a new direct appeal with the assistance of counsel.

Barnett III, No. 3:10-CV-157-TLS, 2015 WL 3466294, at *7 (N.D. Ind. June 1,

2015) (emphasis added). Referring to the habitual amendment hearing, the

District Court commented in a footnote:

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 It is unclear why appellate counsel did not raise the absence of
counsel at that hearing as an issue in the direct appeal. It is
disconcerting that the Petitioner was found to have waived an
issue at a hearing where he was without counsel. If the State
permits the Petitioner to file another direct appeal, this is an issue
that warrants further exploration. See Roe v. Flores-Ortega, 528
U.S. 470, 483 (2000) (“[T]he complete denial of counsel during a
critical stage of a judicial proceeding mandates a presumption of
prejudice because the adversary process itself has been rendered
presumptively unreliable.”); United States v. Cronic, 466 U.S. 648
(1984).

Id. at *4 n.1.

[10] After 120 days had run without action by the State, Barnett filed a motion with

the District Court on September 30, 2015, asking for his immediate release.

The State filed a response, explaining that it had misunderstood the specifics of

the conditional writ and asking the District Court to grant more time for the

State to comply with the conditional writ. The District Court granted the State

an extension until October 29, 2015, to comply with the District Court’s

conditional writ. The State complied, and this appeal ensued.11

11
While this appeal was pending, Barnett filed an appeal with the Seventh Circuit, challenging the
appropriateness of the District Court’s decision to grant the State an extension of time to comply with the
conditional writ. Barnett argued that the District Court had no authority to extend the 120-day time period,
especially in light of the fact that the 120 days had run prior to the State having requested an extension. The
Seventh Circuit held oral argument on the issue in April 2017, and in June 2017, the Seventh Circuit affirmed
the District Court’s decision that had granted the State additional time to comply with the writ. Barnett v.
Neal, 860 F.3d 570, 574, 2017 WL 2644333 (7th Cir. 2017).

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 Discussion and Decision

I. Appropriateness of New Direct Appeal
[11] At the outset, we dispose of several preliminary matters. First, Barnett raises

four issues, each of which is a permutation of the same contention—that our

court could not order a new direct appeal under the circumstances of this case.

Specifically, Barnett contends that this appeal should be dismissed because: (1)

this court has no authority “to simply order a ‘new appeal’ out of thin air,”

Appellant’s Br. at 22; (2) the question of whether Barnett was entitled to a new

appeal was res judicata; (3) the State was judicially estopped from requesting a

new appeal; and (4) a new trial and not a new appeal was the proper remedy.

These arguments stem from the District Court’s decision that granted Barnett a

conditional writ of habeas corpus.

[12] “Federal habeas courts do not sit to correct errors of fact, but to ensure that

individuals are not imprisoned in violation of the Constitution.” Herrera v.

Collins, 506 U.S. 390, 390 (1993). Barnett filed his federal petition for a writ of

habeas corpus claiming that appellate counsel was ineffective when he did not

challenge the properly-preserved issue that the second amended information

was allowed in error. By filing that petition, Barnett surrendered himself to the

federal court’s determination as to the proper remedy for such a violation.

Federal courts have the power to fashion a remedy to suit the needs of a

particular case, including the ability to grant a conditional writ to allow the

State the opportunity to correct the defects on which the order of discharge is

based. See Peyton v. Rowe, 391 U.S. 54, 66 (1968) (in federal habeas actions,

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 federal courts have power to fashion appropriate relief other than immediate

release, as federal writ is not a static, narrow, formalistic remedy). Here, the

District Court opted to grant Barnett a conditional writ of habeas corpus, which

allowed the State to either grant Barnett leave to pursue a new direct appeal

within 120 days or release Barnett. If Barnett believed that it was error for the

District Court to grant a new direct appeal as part of the remedy, he should

have sought relief in the federal courts. Barnett’s attempts to undermine the

District Court’s order in state court amount to an impermissible collateral

attack. See Minix v. Canarecci, 956 N.E.2d 62, 71 (Ind. Ct. App. 2011) (party

who believed federal consent judgment was in error should have sought relief in

federal courts), trans. denied; Dawson v. Estate of Ott, 796 N.E.2d 1190, 1196 (Ind.

Ct. App. 2003) (noting that action in state court that attempts to undermine

federal court decision is impermissible collateral attack).

[13] Second, Barnett claims that the instant appeal cannot proceed because his due

process rights were violated when the State did not serve him notice of the new

direct appeal, pursuant to Indiana Appellate Rule 24. Barnett claims, “If actual

notice of an action derived from a source other than service of process is

insufficient to satisfy the requirements of due process, e.g., Iemma v. JP Morgan

Chase Bank, N.A., 992 N.E.2d 732, 741 (Ind. Ct. App. 2013), then this appeal

violates Barnett’s federal right to due process.” Appellant’s Br. at 27. In his

brief, however, Barnett does not offer any reasoning or cite to any authority to

support the proposition that the District Court’s order granting him a

conditional writ, which included the grant of a new appeal, was insufficient to

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 satisfy the requirements of due process. As such, Barnett has waived this

argument. See Ind. Appellate Rule 46(A)(8)(a) (each issue presented by

appellant must be “supported by cogent reasoning . . . [and] supported by

citations to authorities [and] statutes[.]”); Waters v. State, 65 N.E.3d 613, 618

(Ind. Ct. App. 2016) (party waives issue by not developing cogent argument or

providing adequate citation to authority and portions of the record).

II. Timeliness of Amendment to Charging Information
[14] On February 12, 2003, six days before Barnett’s original trial date and five

weeks after the omnibus date, the trial court allowed the State to file the second

amended information. That amendment, while stemming from the same events

that gave rise to the initial charge of battery, added one count of Class A felony

burglary resulting in bodily injury and one count of Class D felony

intimidation, and “changed the theory of the original Class C battery charge

from specific injuries to ‘extreme pain.” Appellant’s App. at 29. Barnett

contends that, under the version of Indiana Code section 35-34-1-5 that was in

effect at the time he committed the instant crimes, the trial court erroneously

allowed the State to amend the initial Class C felony battery information by

belatedly adding the additional two counts through the second amended

information.

[15] Amendments to a charging information are governed by Indiana Code section

35-34-1-5. In 2002, when Barnett committed the instant offenses, that section

provided:

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 (b) The indictment or information may be amended in matters of
substance or form, and the names of material witnesses may be
added, by the prosecuting attorney, upon giving written notice to
the defendant, at any time up to:

(1) thirty (30) days if the defendant is charged with a felony; or

(2) fifteen (15) days if the defendant is charged only with
one (1) or more misdemeanors;

before the omnibus date. When the information or indictment is
amended, it shall be signed by the prosecuting attorney.

Ind. Code § 35-34-1-5 (2002) (emphases added). Barnett contends that the

addition of two new felonies was a matter of substance, and therefore, the

second amended information was precluded as untimely under Indiana Code

section 35-34-1-5(b) as it existed at the time he committed these crimes.

[16] As support for his claim, Barnett urges this court to follow our Supreme Court’s

reasoning in Fajardo v. State, 859 N.E.2d 1201 (Ind. 2007), which was handed

down in January 2007. In Fajardo, our Supreme Court, analyzing Indiana

Code section 35-34-1-5, held that “when an individual is charged with a felony,

amendments to matters of substance are permissible only if made more than

thirty days before the omnibus date, regardless of whether the defendant’s

substantial rights were prejudiced.” Brown v. State, 912 N.E.2d 881, 888 (Ind.

Ct. App. 2009), trans. denied.

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[17] The Indiana General Assembly responded to Fajardo by amending Indiana

Code section 35-34-1-5 and, deeming the amendment urgent, passed the

amendment within four months after Fajardo was decided.12 Subsection (b) of

the amended statute provided:

(b) The indictment or information may be amended in matters of
substance and the names of material witnesses may be added, by
the prosecuting attorney, upon giving written notice to the
defendant at any time:

(1) up to:

(A) thirty (30) days if the defendant is charged with a
felony; or

(B) fifteen (15) days if the defendant is charged only with
one (1) or more misdemeanors;

before the omnibus date; or

(2) before commencement of trial;

if the amendment does not prejudice the substantial rights of the
defendant. When the information or indictment is amended, it

12
Fajardo was decided in January 2007. Within four months, the General Assembly had passed the
amendment to Indiana Code section 35-34-1-5 in Public Law 178, Section 1. While the public law contained
other amendments, the amendment to Indiana Code section 35-34-1-5 was the only amendment deemed
urgent enough to become “effective upon passage,” which was May 8, 2007.

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 shall be signed by the prosecuting attorney or a deputy
prosecuting attorney.

I.C. § 35-34-1-5(b) (2007) (emphases added).

[18] Under the amended subsection (b), the State had the discretion to amend the

charging information on a matter of substance at any time before the

commencement of trial so long as the amendment did not prejudice the

defendant’s substantial rights. See Gaby v. State, 949 N.E.2d 870, 874 (Ind. Ct.

App. 2011) (State may amend charging information “even in matters of

substance at any time before the commencement of trial so long as the

amendment does not prejudice the defendant’s substantial rights”). The

question remained, however, whether the statute had retroactive application.

Subsequent to that amendment, our court held that the application of the

revised Indiana Code section 35-34-1-5 does not violate the ex post facto

provisions of either the Indiana or United States Constitutions. Brown, 912

N.E.2d at 887-89; see also Hurst v. State, 890 N.E.2d 88, 93-95 (Ind. Ct. App.

2008), trans. denied; Ramon v. State, 888 N.E.2d 244, 251-52 (Ind. Ct. App.

2008). Further, we found that strong and compelling reasons exist for

retroactive application of that amended statute. Brown, 912 N.E.2d at 889-90.

Following the rationale of Brown, Hurst, and Ramon, we, therefore, proceed

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 with our analysis of the propriety of the amendments to Barnett’s charging

information under the amended version of Indiana Code section 35-34-1-5.13

[19] On December 13, 2002, the State charged Barnett with Class C felony battery

and set the omnibus date for January 7, 2003. After further investigation of the

incident, the trial court allowed the State to file the second amended

information on February 12, 2003, adding one count of Class A felony burglary

resulting in bodily injury and one count of Class D felony intimidation. This

amendment was allowed five weeks after the omnibus date, but two months

before the commencement of the trial and three months before the defense

presented its case in chief. The second amended information did not refer to

another time or place; instead the two new counts were based on the same

underlying acts that Barnett committed on December 10, 2002.

[20] Under the revised Indiana Code section 35-34-1-5(b), “the State can make an

amendment to a matter of substance at any time before the commencement of

trial so long as the amendment does not prejudice the defendant’s substantial

13
This court recently handed down Shaw v. State, No. 02A03-1312-CR-505 (Ind. Ct. App. Aug. 17, 2017), a
case that addressed facts similar to our own. We note that our discussion of Fajardo in no way changes our
analysis and decision in Shaw. Like Barnett, Shaw was granted a new direct appeal following the federal
court’s grant of a conditional federal writ of habeas corpus on the basis that Shaw’s appellate counsel was
ineffective for not challenging whether an amendment to the charging information was untimely filed
pursuant to Indiana Code section 35-34-1-5. However, unlike Barnett, Shaw made no argument that Fajardo
should guide the Shaw court’s determination of whether the trial court erred in allowing the amendment to
Shaw’s charging information. In reaching its decision, the Shaw court relied on cases decided prior to 2003
that “interpreted [I.C.] § 35-34-1-5 to allow substantive amendments so long as the substantial rights of the
defendant were not prejudiced.” That holding is consistent with the analysis required under subsection (b) of
the amended statute, which allows a substantive amendment to be made to an information at any time prior
to trial if the amendment does not prejudice the substantial rights of the defendant.

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 rights.” Ramon, 888 N.E.2d at 250. “‘A defendant’s substantial rights include a

right to sufficient notice and an opportunity to be heard regarding the charge.’”

Brown, 912 N.E.2d at 890 (quoting Ramon, 888 N.E.2d at 252. If the

amendment does not affect any particular defense or change the positions of

either of the parties, it does not violate these rights. Erkins v. State, 13 N.E.3d

400, 405 (Ind. 2014). “Ultimately, the question is whether the defendant had a

reasonable opportunity to prepare for and defend against the charges.” Id. at

405-06.

[21] Here, Barnett was initially charged with battery as a Class C felony. To prove

battery, the State had to prove that Barnett touched Bogard in a rude insolent or

angry manner resulting in extreme pain. Ind. Code § 35-42-2-1(a)(3). Bogard

did not deny that her home was used by Barnett and others as a place to gather

to smoke crack, and that she herself often joined them in smoking crack. Tr. at

50, 52. Barnett’s theory at trial was that Bogard condoned the arrangement,

and let Barnett come and go as he pleased, in exchange for Barnett bringing her

some milk and beer and, sometimes, giving her cash so she could pay the

utilities and buy crack for her own use. Id. at 31. The defense argued that

Bogard became angry when Barnett ignored her and did not pay her money she

claimed she was owed, and that this anger prompted Bogard to call Tonya,

ostensibly to get Barnett in trouble. Id. at 33-34. The defense conceded that

Barnett went to Bogard’s home on the evening in question, but argued that

Barnett had not pushed his way into the home; instead, Bogard had let him in,

hoping Barnett had her money. Id. at 34-35. The defense argued that as

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 Bogard stepped back from her door, she tripped over her rambunctious dog

causing herself injury. Id. at 35-36.

[22] This theory was equally applicable as a defense to the later-added charges of

burglary and intimidation. To prove burglary, the State had to prove that

Bogard sustained bodily injury when Barnett broke and entered her home with

the intent to commit the felony of intimidation therein. Ind. Code § 35-43-2-1.

To prove Class D felony intimidation, the State had to prove that Barnett

communicated a threat to commit a forcible felony against Bogard. Bogard

testified that Barnett pushed his way into her home, repeatedly hit and kicked

her, resulting in bodily injury, and threatened that he would kill her unless she

called and cleared things up with Tonya. Tr. at 76-82. Barnett’s defense to

battery—that Bogard merely fell backwards over her own dog when she

answered the door to let Barnett in—would have been, if the jury believed it, an

equally convincing defense for the other two charges.

[23] Here, the second amended information added the new charges of burglary and

intimidation after the omnibus date had run. After the State filed the second

amended information, Barnett asked for, and the trial court granted Barnett,

two continuances. At the request of defense counsel, the trial court also

allowed an adjournment from April 16 until May 12, 2003. Appellant’s App. at

370. The State presented its case-in-chief two months after the second amended

information was filed, but the defendant did not have to present his case-in-

chief until three months after the second amended information was filed.

Barnett had sufficient notice of the new charges. Further, Barnett was given

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 more than two months to prepare his case, which mostly hinged on the jury’s

determination as to the credibility of the witnesses. We find no prejudice to

Barnett’s substantial rights. The trial court did not err when it allowed the State

to amend the charging information to add the offenses of Class A felony

burglary and Class D felony intimidation.

III. Sixth Amendment Right to Counsel14
[24] The trial court set the omnibus date for January 5, 2003. On February 4, 2003,

the State filed the habitual amendment. The next day, Barnett appeared at the

habitual amendment hearing without his trial counsel. Barnett asserts that the

habitual amendment hearing was a critical stage of his prosecution at which he

had a right to be represented by counsel. Appellant’s Br. at 33. During that

hearing, “Barnett, himself, requested a continuance, but he did not object to the

amendment . . . . ” Id. Barnett contends that this lack of representation at that

critical stage was a violation of his right to counsel under the Sixth Amendment

to the United States Constitution.15 We disagree.

[25] “The constitutional guarantee of counsel under the Sixth Amendment has been

construed to include four rights: the right to counsel, the right to effective

14
In the instant appeal, Barnett’s only claim regarding the first amended information is that he was denied
his Sixth Amendment right to counsel when his trial counsel did not appear at the habitual amendment
hearing.
15
A criminal suspect has a right to counsel under both the Sixth Amendment to the United States
Constitution and Article I, Section 13 of the Indiana State Constitution. Barnett makes no claim that he was
denied the right to counsel under the Indiana Constitution.

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 assistance of counsel, the right to a preparation period sufficient to ensure a

minimal level of quality of counsel, and the right to be represented by counsel

of one’s own choice.” Sweeney v. State, 704 N.E.2d 86, 106 (Ind. 1998) (quoting

United States v. McCutcheon, 86 F.3d 187, 189 (11th Cir. 1996) (citations

omitted)). Barnett’s claim arises from the first right, the right to counsel.16 Trial

counsel filed an appearance for Barnett on December 18, 2002. The habitual

amendment hearing at which Barnett appeared without counsel was February

5, 2003, a date by which his right to counsel had been satisfied. Barnett does

not deny that trial counsel was appointed; instead, he argues that, in the

absence of counsel at the habitual amendment hearing, regardless of the reason,

he did not know to object to the untimeliness of the habitual offender charge,

resulting in that issue being waived for appellate review. Appellant’s Br. at 33.

[26] A criminal suspect’s right to counsel is a cornerstone of a fair trial, guaranteed

by the Sixth Amendment to the United States Constitution. State v. Taylor, 49

N.E.3d 1019, 1024 (Ind. 2016). The Sixth Amendment requires the assistance

of counsel at all critical stages of the prosecution. See Hopper v. State, 957

N.E.2d 613, 616 (Ind. 2011) (defendant’s right to counsel arises at any point

during criminal proceeding in which absence of counsel would erode

defendant’s right to fair trial). “This includes any critical stage in which “‘(1)

incrimination may occur or (2) where the opportunity for effective defense must

16
We note that Barnett’s trial counsel filed an appearance on December 18, 2002. Accordingly, at the time of
the February 2002 habitual amendment hearing, Barnett’s right to be represented by counsel had been
satisfied. It is not clear why his trial counsel was not present at that hearing.

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 be seized or be foregone.’” Id. at 616 (citing Hernandez v. State, 761 N.E.2d 845,

850 (Ind. 2002)). The denial of this constitutional right is subject to a harmless-

error analysis. Hernandez, 761 N.E.2d at 849 (citation omitted).

[27] Barnett contends that, having been deprived of counsel at the habitual

amendment hearing, he did not know to object to the untimely addition of the

habitual offender enhancement which resulted in waiver of that issue on

appeal.17 Appellant’s Br. at 33. Barnett argues that it is unlikely that the issue

would have been waived if counsel had been present. Id. at 34.

[28] The State counters, and we agree, that trial counsel could have objected to the

inclusion of the habitual offender enhancement at any time up to and including

trial. See White v. State, 963 N.E.2d 511, 515 (Ind. 2012) (“At no point during

this hearing, at any other point before trial, or any point during trial did White

object to the late filing” of State’s amended information including habitual-

offender charge). Accordingly, any waiver of Barnett’s challenge on appeal to

the habitual amendment was not attributable solely to trial counsel’s absence at

the habitual amendment hearing. Barnett has shown no prejudice.18 We find

17
The CCS reflects that the habitual amendment hearing was recorded; however, there is no audio recording
or transcript of that hearing in the record before us. Appellant’s App. at 2.
18
While Barnett argues that the State has failed to show that the absence of counsel at the hearing was
harmless, Appellant’s Br. at 34, the burden to first show prejudice lies with him. See Jackson v. State, 938
N.E.2d 29, 39 (Ind. Ct. App. 2010) (“A defendant who challenges the State's filing of an habitual offender
allegation on the ground that it is filed outside of the time limit must demonstrate that he was prejudiced.”).

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 that error, if any, in Barnett’s trial counsel being absent from the habitual

amendment hearing was harmless.

[29] Affirmed.

[30] Robb, J., and Barnes, J., concur.

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