MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Nov 06 2020, 8:20 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Justin R. Wall Curtis T. Hill, Jr. Wall Legal Services Attorney General of Indiana Huntington, Indiana Courtney Staton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Louis H. Howard, Jr., November 6, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-3063 v. Appeal from the Wells Superior Court State of Indiana, The Honorable Kenton W. Appellee-Plaintiff, Kiracofe, Special Judge Trial Court Cause No. 90D01-1901-F6-20
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3063 | November 6, 2020 Page 1 of 18 Case Summary and Issues [1] After a jury trial, Louis Howard was convicted of possession of cocaine, a Level
6 felony; obstruction of justice, a Level 6 felony; possession of marijuana, a
Class A misdemeanor; and was found to be an habitual offender. Howard
received a sentence of eight and one-half years. Howard appeals, raising several
issues which we restate as: (1) whether the trial court abused its discretion by
denying Howard’s motion to dismiss the habitual offender enhancement; (2)
whether the trial court abused its discretion by denying Howard’s motion to
continue his trial based on a late amendment to the habitual offender
enhancement; (3) whether the trial court erred in refusing to allow Howard to
plead guilty when he was unrepresented by counsel; and (4) whether the trial
court abused its discretion by denying Howard’s motion to disqualify
Prosecutor Andrew Carnall.
[2] We conclude the trial court did not abuse its discretion by denying Howard’s
motion to dismiss, motion to continue, or motion to disqualify and did not err
when precluding Howard from pleading guilty without counsel. Accordingly,
these issues are affirmed.
Facts and Procedural History [3] On January 27, 2019, Howard had an active warrant out for his arrest.
Detective Marjean Tipton of the Bluffton Police Department received an
anonymous tip that Howard was staying at the home of Shirley Patrick. Acting
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3063 | November 6, 2020 Page 2 of 18 on this tip, Detective Tipton and other officers proceeded to the address
provided to them and knocked on the door. Patrick cooperated with Detective
Tipton and allowed her home to be searched for Howard. Howard was found in
a bedroom in the back of the house, handcuffed, and placed under arrest.
[4] As Detective Tipton was transporting Howard to the jail, she noticed that he
smelled like burnt marijuana. When Howard arrived at the jail, a pat down
search was conducted which produced a bundle of plastic baggies that
contained a green leaf-like substance that smelled like raw marijuana. Howard
was then escorted to the bathroom for a strip search. Howard was
uncooperative but a correctional officer observed what he believed to be a
plastic baggie concealed within Howard’s anus. Howard was then transported
to the Bluffton Regional Medical Center for a body cavity search. Once at the
hospital, and inside a room, Howard lowered his head towards his hands and
officers observed a plastic baggie in his mouth. Officers attempted to grab the
baggie out of Howard’s mouth but were only able to remove a piece before
Howard swallowed the baggie. The piece of baggie that officers were able to get
out of Howard’s mouth tested positive for cocaine. Howard later began
experiencing symptoms of a drug overdose and had to be treated. Howard was
subsequently charged with possession of cocaine, possession of marijuana, and
obstruction of justice.
[5] On January 28, 2019, Howard had an initial hearing where he was read the
charging information and given notice of the State’s intent to seek an enhanced
penalty for the possession of marijuana charge based upon a prior conviction.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3063 | November 6, 2020 Page 3 of 18 Howard was assigned a public defender. Later that day, the State filed its notice
of intent to seek habitual offender status, which had not been read to Howard at
the initial hearing. This original Habitual Offender Enhancement listed four
prior unrelated felony convictions upon which the enhancement was based and
stated it was filed under Indiana Code section 35-50-2-8(b).
[6] On May 31, 2019, Howard appeared at a pre-trial conference without counsel
because Howard’s public defender had filed a motion to withdraw which was
granted. The pre-trial conference was held, in part, to appoint Howard a new
attorney. At the pre-trial conference, Howard attempted to plead guilty to the
three charges but not to the Habitual Offender Enhancement. The trial court
responded by advising Howard that he could not plead guilty “if you’re
represented by an attorney without consulting an attorney” and that he was not
permitted to “just pick and choose what you plead guilty to[.]” Transcript,
Volume 2 at 36. Howard indicated that he wanted to be represented and asked
the trial court to appoint him new counsel.
[7] Howard’s jury trial was set for October 30, 2019. On October 10, 2019, the
State amended the Habitual Offender Enhancement for the first time by filing
an Amended Notice of Intent to Have Defendant Sentenced as an Habitual
Offender Under IC 35-50-2-8(b) (“First Amended Habitual Offender
Enhancement”) that removed one of the prior unrelated felonies listed.
Appellant’s Appendix, Volume II at 104.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3063 | November 6, 2020 Page 4 of 18 [8] At the final pre-trial hearing on October 16, 2019, Howard made an oral
motion to dismiss the State’s First Amended Habitual Offender Enhancement,
which he later renewed in writing at the direction of the trial court. Howard
previewed his argument, noting he had never been given an initial hearing on
the originally filed Habitual Offender Enhancement, the Habitual Offender
Enhancement was filed under the wrong statutory provision, and the
amendment was not timely. Howard also moved for a continuance because the
amendment of the Habitual Offender Enhancement occurred less than thirty
days prior to his trial date. The trial court denied the motion to continue. After
hearing Howard’s argument, the State orally moved to amend the First
Amended Habitual Offender Enhancement and change the controlling statute
from Indiana Code section 35-50-2-8(b) to Indiana Code section 35-50-2-8(d),
which the trial court granted. The State later formally filed the Second
Amended Notice of Intent to Have Defendant Sentenced as an Habitual
Offender Under IC 35-50-2-8(d) (“Second Amended Habitual Offender
Enhancement”). Id. at 113. Howard renewed his motion to continue which the
trial court again denied.
[9] The trial court held a hearing on Howard’s written motion to dismiss on
October 28, 2019. Howard made the same arguments he had previewed on
October 16 and also included an argument that he should have been allowed to
plead guilty at the pre-trial conference because he was not given an initial
hearing on the Habitual Offender Enhancement. The trial court denied
Howard’s motions, determining that because Howard had expressed a desire to
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3063 | November 6, 2020 Page 5 of 18 be represented by counsel, it could not have accepted a guilty plea from him at
that time and that Howard’s previous attorney had told him the Habitual
Offender Enhancement was on file. See Tr., Vol. 2 at 101.
[10] The matter proceeded to jury trial. The original prosecutor, Christopher
Harvey, presented evidence on behalf of the State on the first day; however, on
the second day of trial, Harvey became ill and Andrew Carnall appeared to
finish the trial. Howard objected to Carnall taking over responsibilities for the
case because Carnall had represented Howard as a defense attorney in private
practice in 1996. The trial court determined there was no conflict and
concluded that Carnall could proceed in his representation of the State.
[11] The jury found Howard to be guilty as charged and to be an habitual offender.
The trial court then sentenced Howard to two and one-half years in the Indiana
Department of Correction. Howard’s sentence was enhanced by six years for
his status as an habitual offender. Howard now appeals.
Discussion and Decision I. Habitual Offender Enhancement A. Motion to Dismiss [12] Howard argues that the trial court erred by denying his motion to dismiss the
Habitual Offender Enhancement. Indiana Code section 35-34-1-4(a) states that
the court may, upon motion of the defendant, dismiss an indictment or
information. We review a trial court’s denial of a motion to dismiss for an
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3063 | November 6, 2020 Page 6 of 18 abuse of discretion. Delagrange v. State, 951 N.E.2d 593, 594 (Ind. Ct. App.
2011), trans. denied. In reviewing a trial court’s decision for an abuse of
discretion, we reverse only where the decision is clearly against the logic and
effect of the facts and circumstances. Id.
[13] Similarly, we review a trial court’s decision on whether to permit an
amendment to a charging information for an abuse of discretion. See Keller
v. State, 987 N.E.2d 1099, 1109 (Ind. Ct. App. 2013), trans. denied. The
defendant bears the burden of proof to show that an amendment prejudices
their substantial rights. Prewitt v. State, 761 N.E.2d 862, 868 (Ind. Ct. App.
2002). To the extent that this issue requires us to interpret a statute, we apply a
de novo standard of review to matters of statutory interpretation. In re Bi.B., 69
N.E.3d 464, 466 (Ind. 2017).
[14] First, Howard argues that the trial court erred by denying his motion to dismiss
because he was not afforded a timely initial hearing on the Habitual Offender
Enhancement. Procedural safeguards that apply to other criminal charges apply
to habitual offender allegations, including the right to an initial hearing. Ind.
Code § 35-50-2-8(l). However, failure to hold an initial hearing on an habitual
offender enhancement is not reversible error unless it results in prejudice.
Shelton v. State, 490 N.E.2d 738, 744 (Ind. 1986). A defendant is not prejudiced
when they have notice prior to trial. See id. And even if a defendant does not
have actual knowledge of the habitual offender charge, they are not necessarily
prejudiced if their counsel has knowledge of the habitual offender count.
Lampkins v. State, 682 N.E.2d 1268, 1274 (Ind. 1997).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3063 | November 6, 2020 Page 7 of 18 [15] Howard concedes that “he had some knowledge of the [Habitual Offender
Enhancement], or at least his first counsel” did. Appellant’s Brief at 23.
Howard further states that “pursuant to Shelton and Lampkin, [he] cannot
demonstrate prejudice if he, or his counsel, had actual knowledge of the
[Habitual Offender Enhancement].” Id. Because Howard concedes he had
actual knowledge of the Habitual Offender Enhancement he was not prejudiced
by the trial court’s failure to hold an initial hearing. Shelton, 490 N.E.2d at 744.
Howard was thus not entitled to dismissal of the Habitual Offender
Enhancement on this ground.
[16] Next, Howard argues that the trial court erred in denying his motion to dismiss
because the State’s Second Amended Habitual Offender Enhancement, which
changed the basis of the enhancement from Indiana Code section 35-50-2-8(b)
to Indiana Code section 35-50-2-8(d), was an impermissible amendment that
substantially prejudiced his rights.1 Although the habitual offender charge is not
a separate “offense” under Indiana law, our supreme court has held that it is
subject to the rules governing charging of criminal offenses, such as Indiana
Code section 35-34-1-5. Murphy v. State, 499 N.E.2d 1077, 1083 (Ind.
1986). Indiana Code section 35-34-1-5(a) allows prosecuting attorneys to move
to amend “immaterial defects” of an indictment or information at any time.
1 Howard concedes that the State’s first amendment to the Habitual Offender Enhancement, removing one of the four underlying felonies, was permissible pursuant to the holding in Wheeler v. State, 95 N.E.3d 149 (Ind. Ct. App. 2018). See Appellant’s Br. at 27.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3063 | November 6, 2020 Page 8 of 18 [17] The State’s second amendment changed the caption to reflect that the statutory
authority for the Habitual Offender Enhancement was Indiana Code section 35-
50-2-8(d) instead of section 35-50-2-8(b). These subsections provide different
requirements for habitual offender enhancements. Indiana Code section 35-50-
2-8(b) describes the circumstances under which a person convicted of murder or
a Level 1 through Level 4 felony is an habitual offender. That subsection was
not applicable to Howard as the most serious offense he was charged with was
a Level 6 felony. Indiana Code section 35-50-2-8(d), however, describes when a
person convicted of any felony is an habitual offender and is the subsection
applicable to Howard.
[18] This amendment falls within one of the examples Indiana Code section 35-34-1-
5(a) gives of an immaterial defect. Specifically, Indiana Code section 35-34-1-
5(a)(6) which states that a “mistake in the name of . . . the statutory provision
alleged to have been violated” is an immaterial defect that the prosecution can
seek to change at any time. See Didio v. State, 471 N.E.2d 1117, 1120 (Ind. 1984)
(holding that changing “neither the factual allegations nor the characterization
of the offense but merely correct[ing] an erroneous statutory citation” was
permissible).
[19] Even if this amendment did not fall within Indiana Code section 35-34-1-5(a), it
was permissible because it did not prejudice Howard’s substantial rights. Both
amendments of form and substance are allowed prior to trial as long as they do
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3063 | November 6, 2020 Page 9 of 18 not prejudice the substantial rights of a defendant.2 Ind. Code § 35-34-1-5(b),
(c). A defendant’s substantial rights include “a right to sufficient notice and an
opportunity to be heard regarding the charge[.]” Gomez v. State, 907 N.E.2d 607,
611 (Ind. Ct. App. 2009) (quotation omitted), trans. denied. If an amendment
does not affect “any particular defense or change the positions of either of the
parties,” the defendant’s substantial rights are not violated. Id.
[20] In determining whether a defendant’s substantial rights were prejudiced,
“[u]ltimately, the question is whether the defendant had a reasonable
opportunity to prepare for and defend against the charges.” Nunley v. State, 995
N.E.2d 718, 723 (Ind. Ct. App. 2013) (quoting Gomez, 907 N.E.2d at 611),
trans. denied. We have previously held that an amendment to the predicate
offenses alleged in an habitual offender enhancement, with little notice, was a
substantive amendment. See State v. McFarland, 134 N.E.3d 1027, 1031 (Ind. Ct.
App. 2019), trans. denied.; Nunley, 995 N.E.2d at 722. In McFarland, the State
proposed to replace a prior misdemeanor theft conviction with a felony
conviction for carrying a handgun without a license less than two business
hours before trial. We held that the State “did not provide adequate notice” and
left the defendant no time to prepare for the habitual offender portion of the
2 Indiana Code section 35-34-1-5(b) states that the indictment or information may be amended in matters of substance upon giving written notice to the defendant at any time before the commencement of trial if the amendment does not prejudice the substantial rights of the defendant. Indiana Code section 35-34-1-5(c) permits an amendment to the indictment or information in form at any time before, during, or after the trial as long as it does not prejudice the substantial rights of the defendant. Because the amendment here took place prior to trial we need not determine whether the amendment was one of form or substance, only that it did not prejudice the substantial rights of Howard.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3063 | November 6, 2020 Page 10 of 18 trial. McFarland, 134 N.E.3d at 1033. The amendment also took away the
defendant’s defense that one of the two listed prior offenses was not a valid
predicate offense because it was a misdemeanor. Similarly, in Nunley, the trial
court allowed the State to substitute two valid predicate offenses for an invalid
one the day after the jury was empaneled but continued the trial for six days “so
that [the defendant] could prepare his defense.” Nunley, 995 N.E.2d at 722. We
held that this amendment violated the defendant’s substantial rights because no
part of Indiana Code section 35-34-1-5 allowed the amendment: the
amendment was not to correct an immaterial defect and it prejudiced the
defendant’s substantial rights because it was essential to the habitual offender
allegation and the defendant’s defense to the original allegation evaporated
under the amendment. Id. at 723-24.
[21] However, as described above, both Nunley and McFarland dealt with
amendments to the predicate offenses alleged as the basis for the habitual
offender enhancement at the last moment. The present case differs from those
two cases because here, the State did not attempt to change the underlying
convictions being used for the habitual offender enhancement but only changed
the statutory cite to conform to the allegations. Further, this amendment
occurred two weeks before the jury trial date and Howard was aware of the
mistake and brought it to the trial court’s attention at the final pre-trial hearing
prior to the State’s second amendment. See Tr., Vol. 2 at 62.
[22] Howard contends that his rights were substantially prejudiced because this
change “dramatically changes the defense that Howard would be able to
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3063 | November 6, 2020 Page 11 of 18 present at trial[.]” Appellant’s Br. at 28. Stating that under Indiana Code
section 35-50-2-8(b) the State “would have had to prove that Howard was being
charged with Murder, or a Level 1-4 felony,” Howard notes he was only
charged with Level 6 felonies and a misdemeanor and he therefore would “have
had a very clear and obvious defense at trial[.]” Id. However, we find this
argument unpersuasive because Howard “had a reasonable opportunity to
prepare for and defend” against this amendment. Gomez, 907 N.E.2d at 611.
[23] Here, the State did not amend one of the underlying felony convictions of the
First Amended Habitual Offender Enhancement. It amended the caption to
reflect the statutory subsection applicable to Howard’s charges and potential
conviction. The First Amended Habitual Offender Enhancement complied with
the requirements of Indiana Code section 35-50-2-8(d) even though it cited
Indiana Code section 35-50-2-8(b). Further, this amendment occurred two
weeks prior to Howard’s trial giving him ample time to prepare. Therefore,
Howard’s substantial rights were not prejudiced, and the trial court did not
abuse its discretion by denying Howard’s motion to dismiss.
B. Motion to Continue [24] Where a motion to continue is filed on non-statutory grounds or fails to meet
the statutory requirements we review the trial court’s decision to grant or deny
for an abuse of discretion. Tharpe v. State, 955 N.E.2d 836, 843 (Ind. Ct. App.
2011), trans. denied. An abuse of discretion occurs when a decision is clearly
against the logic and effect of the facts and circumstances before the court or
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3063 | November 6, 2020 Page 12 of 18 where the record demonstrates prejudice to the defendant from a denial of the
continuance. Id. Continuances to allow additional time for preparation are
generally disfavored in criminal cases. Id.
[25] Howard argues that the trial court abused its discretion by denying his motion
to continue because the State’s amendment to the First Amended Habitual
Offender Enhancement substantially prejudiced Howard’s rights. We
concluded above that the State’s amendment changing the caption of the First
Amended Habitual Offender Enhancement from Indiana Code section 35-50-2-
8(b) to Indiana Code section 35-50-2-8(d) did not substantially prejudice
Howard’s rights. Therefore, we conclude the trial court did not abuse its
discretion by denying Howard’s motion to continue.
II. Guilty Plea at Pre-Trial Conference Hearing [26] Howard argues that he should have been allowed to plead guilty because he
was acting in a pro se capacity. Howard further argues that he should have been
allowed to plead guilty to all the charges except the Habitual Offender
Enhancement because the Habitual Offender Enhancement was invalid.
According to Indiana Code section 35-35-1-1, a “plea of guilty . . . shall not be
accepted from a defendant unrepresented by counsel who has not freely and
knowingly waived his right to counsel.”
[27] It is well established that there is a strong presumption against the waiver of the
right to counsel, and it is the trial court that bears the “serious and weighty
responsibility . . . to determine whether there was an intelligent and competent
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3063 | November 6, 2020 Page 13 of 18 waiver. . . . To discharge the duty imposed, a judge must investigate as long and
as thoroughly as the circumstances of the case before him demand.” Eaton v.
State, 894 N.E.2d 213, 217 (Ind. Ct. App. 2008) (quoting Mitchell v. State, 417
N.E.2d 364, 369 (Ind. Ct. App. 1981)) (internal citations omitted), trans.
denied. The trial court is in the best position to assess whether the defendant has
made a knowing and intelligent waiver, and the trial court’s finding will most
likely be upheld “where the judge has made the proper inquiries and conveyed
the proper information, and reaches a reasoned conclusion.” Poynter v. State,
749 N.E.2d 1122, 1128 (Ind. 2001) (citations omitted). Nevertheless, the trial
court’s conclusion whether the defendant knowingly and voluntarily waived
the right to counsel is reviewed de novo. Miller v. State, 789 N.E.2d 32, 37 (Ind.
Ct. App. 2003) (citing Balfour v. State, 779 N.E.2d 1211, 1216 (Ind. Ct. App.
2002)).
[28] Here, Howard’s original attorney withdrew, and a pre-trial conference was
conducted, in part, to appoint new counsel to represent Howard. During the
pre-trial conference Howard attempted to plead guilty to all his charges, except
the Habitual Offender Enhancement. The trial court informed him that he was
not able to plead guilty “if [he was] represented by an attorney without
consulting with an attorney” and that he could not “pick and choose what [he]
plead[s] guilty to[.]” Tr., Vol. 2 at 36. Howard argues that at the time of the
hearing he was acting pro se and should have been allowed to plead guilty.
However, at the hearing the trial court stated that Howard had “previously said
[he] wanted to be appointed an attorney” to which Howard responded “[y]es.”
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3063 | November 6, 2020 Page 14 of 18 Id. at 35. And when asked again if he wanted counsel appointed for him, he
stated that he did. See id. at 37. The trial court then appointed new counsel.
[29] We conclude that prior to his attempt to plead guilty, Howard had not made a
knowing and intelligent waiver of his right to counsel and therefore he was
precluded from pleading guilty. See Ind. Code § 35-35-1-1. Because Howard did
not waive his right to counsel, we need not address whether he should have
been permitted to plead guilty to only his three charges but not the Habitual
Offender Enhancement.3
III. Motion to Disqualify Prosecuting Attorney [30] Howard argues that Andrew Carnall, and by extension the entire Wells County
Prosecutor’s Office, should have been disqualified because Carnall had
previously represented Howard while in private practice. Howard did not make
a formal motion, but we will treat his objection as a motion to disqualify. See
Tr., Vol. 3 at 129. Howard’s claim that the entire Wells County Prosecutor’s
Office should be disqualified was brought for the first time on appeal and is
therefore waived. See Whitfield v. State, 699 N.E.2d 666, 669 (Ind. Ct. App.
1998) (stating an argument raised for the first time on appeal will not be
3 Howard argues that his motion to dismiss the Habitual Offender Enhancement should have been granted because the lack of a proper initial hearing precluded him from pleading guilty at the pre-trial conference and prejudiced him. Howard contends that “[he] may have pled the matter out, or at least potentially accepted the idea that at the May 31, 2019 hearing, the [Habitual Offender Enhancement] was properly before the [c]ourt and Howard would have accepted this fact and pled guilty.” Appellant’s Br. at 30. However, because we find here that Howard had not waived his right to counsel, this argument is moot. Howard would not have been permitted to plead guilty at the pre-trial conference regardless of whether he had an initial hearing for the Habitual Offender Enhancement or not.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3063 | November 6, 2020 Page 15 of 18 considered), trans. denied. We will only address whether Carnall should have
been disqualified.
[31] “A lawyer who has formerly represented a client in a matter shall not thereafter
represent another person in the same or a substantially related matter in which
that person’s interests are materially adverse to the interests of the former client
unless the former client gives informed consent[.]” Ind. Professional Conduct
Rule 1.9. A trial court may disqualify an attorney for a violation of the Rules of
Professional Conduct that arises from the attorney’s representation before the
court. Cincinnati Ins. Co. v. Wills, 717 N.E.2d 151, 154 (Ind. 1999). We review a
trial court’s decision regarding disqualification for an abuse of discretion.
Kindred v. Ind. Dep’t. of Child Servs., 136 N.E.3d 284, 292 (Ind. Ct. App. 2019),
trans. denied. An abuse of discretion occurs when the trial court’s decision is
clearly against the logic and effect of the facts and circumstances before it or if it
has misinterpreted the law. Reed v. Hoosier Health Sys., Inc., 825 N.E.2d 408, 411
(Ind. Ct. App. 2005).
[32] A government employee generally may not “participate in a matter in which
the lawyer participated personally and substantially while in private practice or
nongovernmental employment[.]” Prof. Cond. R. 1.11(d)(2)(i). In criminal
cases, however, while acknowledging the importance of the “precepts of
professional ethics[,]” Williams v. State, 631 N.E.2d 485, 487 (Ind. 1994)
(quotation omitted), the Indiana Supreme Court has applied an analysis distinct
from that used in attorney disqualification questions in civil cases. Johnson v.
State, 675 N.E.2d 678, 682 (Ind. 1996).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3063 | November 6, 2020 Page 16 of 18 [33] The key inquiries are (1) “whether the issues in the prior and present case are
essentially the same or are closely interwoven therewith,” (2) “whether
the prosecutor has received confidential information in the prior
representation,” and (3) “more importantly, whether the information may have
subsequently assisted the prosecution.” Johnson, 675 N.E.2d at 682; see Garren v.
State, 470 N.E.2d 719, 723 (Ind. 1984) (holding prosecutor need not be
disqualified where defendant “failed to show that the [p]rosecutor obtained
information from him in confidence which was relevant to the facts of the [case
at bar]”).
[34] We have held that it is the defendant’s burden to show both that a “prosecutor
received confidential information” and that “prejudice actually . . . resulted”
from the use of confidential information. Williams, 631 N.E.2d at 487. Here, we
find that Howard has failed to meet this burden.
[35] Howard concedes that the case Carnall represented him in “factually, has
nothing related to his present case.” Appellant’s Br. at 35. Howard contends,
however, that the past representation is substantially related to the present
matter because his conviction in cause number 90C01-9603-CF-90 – in which
Carnall represented him – was subsequently used to enhance a conviction out
of Huntington County in cause number 35D01-0805-FD-82. That Huntington
County conviction was then included in the State’s original Habitual Offender
Enhancement before being removed in the first amendment. See Appellant’s
App., Vol. II at 69. Further, Howard states that Carnall would have “garnered
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3063 | November 6, 2020 Page 17 of 18 private, confidential information pertaining to Howard as is normally
established in the attorney-client relationship.” Appellant’s Br. at 35.
[36] However, Howard is unable to show that “prejudice actually . . . resulted.”
Williams, 631 N.E.2d at 487. The Huntington County conviction was included
in the original Habitual Offender Enhancement but not in the First Amended
Habitual Offender Enhancement or Second Amended Habitual Offender
Enhancement. The case in which Carnall represented Howard was therefore
not relevant to the habitual offender allegation as tried in any way. Carnall’s
representation of Howard also occurred more than twenty years ago and is not
substantially related to the current matter. Because of this, we hold that Howard
was not actually prejudiced by Carnall prosecuting him and the trial court did
not abuse its discretion when it denied Howard’s motion to disqualify Carnall.
Conclusion [37] The trial court did not abuse its discretion by denying Howard’s motion to
dismiss, motion to continue, or motion to disqualify. We also conclude that
prior to his attempt to plead guilty Howard had not made a knowing and
intelligent waiver of his right to counsel and therefore he was precluded from
pleading guilty. Accordingly, we affirm.
[38] Affirmed.
May, J., and Vaidik, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3063 | November 6, 2020 Page 18 of 18