Ineffective Assistance of Counsel

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7^th Circuit Court of Appeals

Case Name: David M. Jones v. Dushan Zatecky, Warden

Case No.: 17-2606

Officials: WOOD, Chief Judge, and MANION and ROVNER, Circuit Judges.

Focus: Ineffective Assistance of Counsel

At the time of David Jones’s arrest and prosecution in 2005, Ind. Code § 35-34-1-5 (1982) identified an “omnibus date” and allowed prosecutors to make substantive amendments to pending charges only up to 30 days before the omnibus date. Seven years earlier, in a case called Haak v. State, 695 N.E.2d 944, 951 (Ind. 1998), the Indiana Supreme Court had confirmed the strict nature of this deadline. Disregarding this rule, in Jones’s case the state moved nine days after the omnibus date to amend the charging instrument to add a new and highly consequential charge of criminal confinement. Jones’s attorney did not object to this untimely amendment, and Jones was ultimately convicted of the confinement charge.

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. 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.

We have seen this problem before. See Shaw v. Wilson, 721 F.3d 908, 911 (7th Cir. 2013). We held in Shaw that following the crowd is no excuse for depriving a criminal defendant of his constitutional right to the effective assistance of counsel. Id. at 917. We accordingly held that Shaw was entitled to the issuance of a writ of habeas corpus under 28 U.S.C. § 2254, based on his attorney’s failure to object to an untimely amendment to his charges under the same Indiana law now before us. Id. at 910. We conclude that Jones is entitled to the same relief.

Adhering to Shaw, we thus VACATE the district court’s decision to deny Jones’s petition for a writ of habeas corpus and REMAND with instructions to issue the writ within 120 days with respect to his conviction for criminal confinement only and to make any necessary adjustments in his sentence on the two unchallenged counts of conviction.

Vacated and remanded

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.