EVANS v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] In 2006, a jury found Evans guilty of Class A felony attempted murder and Class D felony resisting law enforcement. In a bifurcated proceeding, Evans admitted to being a habitual offender. He was sentenced to seventy-one years in the Indiana Department of Correction (DOC), forty-one years for the underlying offenses enhanced by thirty years for being a habitual offender.

[2] Years later, Evans brought a successive petition for post-conviction relief (SPCR petition) challenging his habitual offender adjudication. The post-conviction court denied relief, but this Court reversed, holding the prior convictions used by the State to support the enhancement did not occur in the order required by statute. On remand, the trial court granted the State's motion to amend the habitual offender charging information. The State then retried Evans on the enhancement. A jury found Evans to be a habitual offender, and the court again enhanced his sentence by thirty years.

[3] Evans now appeals, raising several issues for our review, which we consolidate and restate as: (1) whether the trial court abused its discretion in allowing the State to amend the habitual offender information prior to Evans’ retrial; and (2) whether the court abused its discretion in allowing the State to retry Evans. We conclude the court did not abuse its discretion in allowing the amendment and that the State's ability to retry him is well settled under the law of the case doctrine. Accordingly, we affirm.

Facts and Procedural History

[4] The detailed facts of Evans’ underlying offenses can be read in this Court's October 2006 opinion from Evans’ direct appeal. See Evans v. State, 855 N.E.2d 378, 381-83 (Ind. Ct. App. 2006) (“Evans I”), reh'g denied, trans. denied. A brief recitation of those facts reveals that in 2005, Evans and Melinda Keedy were partners in a scheme to commit bank fraud in Tennessee and Kentucky. During one of the fraudulent transactions, Keedy used her real thumbprint to cash a check instead of using a false thumbprint. When she told Evans what she had done, Evans became “afraid the police would catch them, and he decided to kill Keedy.” Id. at 381. Evans then enlisted the help of a friend and hatched an elaborate plan that involved Evans driving Keedy to Evans’ home, where the friend would be waiting. “Once inside the house, Evans would strangle Keedy with a rope while [the friend] remained ready to apprehend Keedy should she attempt to escape.” Id. Evans also shared plans for disposing of Keedy's body.

[5] Evans, however, did not know that Keedy had agreed to act as a police informant and that when he attempted to carry out his plan to kill Keedy, Keedy was under police surveillance and wearing a wire. When Evans arrived at his home with Keedy, he parked his car in the garage, closed the garage door, and put a glove on his hand. Keedy entered the house in front of Evans, and “[a]fter she had taken a step or two, Evans put a rope around her neck, started strangling her, [and] pulled her to the ground[.]” Id. at 382. The police officers who were surveilling Keedy thwarted the attack and saved her life.

[6] On May 18, 2005, the State charged Evans with Class A felony attempted murder, Class B felony aggravated battery, Class B felony criminal confinement, and Class D felony resisting law enforcement. On October 12, 2005, the State amended the charging information to include a habitual offender allegation. A three-day jury trial was held in December, and Evans was found guilty as charged. Evans admitted to being a habitual offender, which was based on allegations that he had two prior, unrelated felony convictions. On January 6, 2006, the trial court sentenced Evans to forty years for the attempted murder conviction—enhanced by thirty years for the habitual offender adjudication—and a consecutive one-year sentence for the resisting law enforcement conviction, for a total executed sentence of seventy-one years.¹

[7] We affirmed Evans’ convictions and sentence on direct appeal in Evans I and later affirmed the subsequent denial of his petition for post-conviction relief in a memorandum decision. Evans v. State, No. 49A04-1112-PC-697, at *8 (Ind. Ct. App. Aug. 8, 2012) (mem.) (“Evans II”), trans. denied. On September 9, 2020, Evans sought and was granted permission from this Court to file a SPCR petition. He alleged that although he admitted to the habitual offender allegation, he did not qualify as a habitual offender because the State had failed to prove that the underlying offenses occurred in the proper chronological order. See Docket, Evans v. State, 20A-SP-1719 (Petition for Permission to File Successive Petition for Post-Conviction Relief) (“Evans III”). Meanwhile, in November 2021, Evans completed his forty-one-year sentence for the underlying 2006 convictions.

[8] In January 2022, the post-conviction court denied Evans’ SPCR petition challenging his habitual offender adjudication and he appealed. In May 2023, this Court found the two convictions used by the State to allege Evans was a habitual offender “did not in fact occur in the required order” and therefore reversed his adjudication. Evans v. State, 209 N.E.3d 472, 482 (Ind. Ct. App. 2023) (“Evans IV”). The Evans IV Court remanded “with instructions to issue an amended abstract of judgment consistent with this opinion.” Id. On remand, the court amended the abstract of judgment to remove the thirty-year habitual offender sentencing enhancement and noted that the State intended to retry Evans on the habitual offender allegation.

[9] On August 23, 2023, the State filed an amended habitual offender information, alleging that Evans was a habitual offender. Evans then filed a motion to dismiss, arguing that the State could not retry him on the habitual offender allegation. That same month, Evans filed a verified petition for a writ of habeas corpus in the trial court. The court denied his motion to dismiss and denied him habeas relief.² Meanwhile, Evans returned to the post-conviction court in Evans IV and filed a corrected petition for writ in aid of appellate jurisdiction, asking the Court to order his immediate release from incarceration. The Evans IV post-conviction court denied Evans’ petition for writ in aid of appellate jurisdiction, determining that the State was not barred from re-prosecuting Evans on the sentencing enhancement.

[10] Evans appealed the denial of his petition for a writ of habeas corpus, arguing that the State “lack[ed] the authority to re-prosecute him on the sentencing enhancement because he [was] entitled to immediate release, having completed his sentence for attempted murder.” Evans v. State, No. 23A-CR-2403, at *2 (Ind. Ct. App. May 8, 2024) (mem.) (“Evans V”), trans. denied. We affirmed the trial court's denial of habeas relief, concluding that the State could retry Evans on the habitual offender allegation; Evans was not entitled to immediate release; and the trial court did not err by denying Evans’ petition for a writ of habeas corpus. Id. at *3.

[11] While the Evans V appeal was pending, the State proceeded to retry Evans on the habitual offender allegation. On April 17, 2024, the jury trial for the habitual offender allegation commenced.³ At trial, the parties stipulated that Evans had three prior convictions, and the trial court took judicial notice of Evans’ 2006 conviction for attempted murder.

[12] The jury found Evans to be a habitual offender, and the trial court enhanced Evans’ original sentence for attempted murder by thirty years. Evans now appeals.

Discussion and Decision

[13] Initially, we note that Evans has chosen to proceed pro se. Pro se litigants are held to the same legal standards as licensed attorneys. Flowers v. State, 250 N.E.3d 507, 509 (Ind. Ct. App. 2025). Thus, pro se litigants are bound to follow the established rules of procedure and must be prepared to accept the consequences of their failure to do so. Id.

I. Amendment of the Charging Information

[14] Evans argues the trial court abused its discretion when it allowed the State to amend the habitual offender charging information on August 23, 2023, at least seven months before his retrial on April 17, 2024. We review a trial court's decision on whether to permit an amendment to a charging information for an abuse of discretion. Howard v. State, 122 N.E.3d 1007, 1013 (Ind. Ct. App. 2019), trans. denied. An abuse of discretion occurs when the trial court's judgment is “clearly against the logic and effect of the facts and circumstances before it or is contrary to law.” Id. (citation omitted).

[15] Indiana Code section 35-34-1-5 governs amendments to charging information. Relevant to this appeal, under Indiana Code section 35-34-1-5(b), an 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.”

[16] Here, the parties agree that the August 2023 amendment was one of substance—meaning it was “essential to making a valid charge of the crime”—as it added prior convictions. Nunley v. State, 995 N.E.2d 718, 724 (Ind. Ct. App. 2013), clarified on reconsideration, 4 N.E.3d 669 (Ind. Ct. App. 2013). The amendment also altered a defense available to Evans under the original habitual offender information. See id. (concluding that amendment was “one of substance rather than form” because defendant's “defense under the original information evaporated under the amendment”).

[17] However, the parties dispute whether the other requirements of Subsection (b) were met here. Specifically, Evans argues the amendment (1) did not occur before the commencement of trial and (2) prejudiced his substantial rights.

A. Commencement of Trial

[18] Evans first argues the State was not permitted to amend the charging information under Subsection (b) because his trial “commenced” on December 12, 2005, and thus the amendment was untimely. The State argues that Subsection (b)’s “before the commencement of trial” refers here not to Evans’ original trial, but to the April 17, 2024 retrial. We agree.

[19] “Habitual offender is a status that results in an enhanced sentence.” Ind. Code § 35-50-2-8(j). If a defendant is alleged to be a habitual offender and he is convicted of the present felony, then there is a “sentencing hearing” on the habitual offender charge. Ind. Code § 35-50-2-8(h). As such, “[t]he habitual offender phase of the proceedings is not a separate trial but is a bifurcated continuation of the entire proceeding.” Wine v. State, 539 N.E.2d 932, 936 (Ind. 1989). Nonetheless, our Supreme Court has made clear that “the habitual offender question” is “severable” and thus a new trial may be ordered solely to address the habitual offender determination if needed. State v. McMillan, 409 N.E.2d 612, 618 (Ind. 1980); see also Jaramillo v. State, 823 N.E.2d 1187 (Ind. 2005) (holding double jeopardy did not preclude State from retrying defendant on the habitual offender enhancement after it had been reversed on appeal for insufficient evidence).

[20] This Court addressed the amendment of charging information as it relates to retrials in Baker v. State, 928 N.E.2d 890 (Ind. Ct. App. 2010), trans. granted, vacated in part 948 N.E.2d 1169, 1173 (Ind. 2011) (summarily affirming the holding regarding the amendment of the information). There, the defendant challenged the State's ability to amend the charging information after his first trial ended in a mistrial, contending it was untimely because “the applicable trial date is the date of the first trial that ended in a mistrial[.]” Id. at 892. We rejected this argument and held “the applicable deadline for amending the information is ․ ‘before the commencement of the trial’ that was held on the amended charges[.]” Id. As such, the applicable deadline here is the date on which the habitual offender determination was retried, and the State's amendment of the charges prior to that date was not untimely under Subsection (b).

B. Substantial Rights

[21] Having determined the State's amendment of the charging information was not untimely, we now turn to whether the amendment prejudiced Evans’ substantial rights. A defendant's substantial rights include a right to sufficient notice and an opportunity to be heard regarding the charge. Erkins v. State, 13 N.E.3d 400, 405 (Ind. 2014). “[I]f the amendment does not affect any particular defense or change the positions of either of the parties, it does not violate these rights.” Id. (quotation marks and citation omitted). “Ultimately, the question is whether the defendant had a reasonable opportunity to prepare for and defend against the charges.” Id. at 405-06 (quotation marks and citation omitted). “While there is no fixed ‘minimum period of time which must be allowed by the court in every case’ for preparing a defense, the ‘common scenario [is] two or more months.’ ” Hobbs v. State, 160 N.E.3d 543, 551 (Ind. Ct. App. 2020) (quoting Howard, 122 N.E.3d at 1014), trans. denied.

[22] Evans’ substantial rights were not prejudiced by the amendment as he had ample notice. The State amended the habitual offender enhancement information on August 23, 2023, approximately seven months prior to the April 17, 2024 retrial. And the amendment did not affect Evans’ ability to argue and present evidence relevant to his defense.

[23] To the extent Evans relies upon Nunley, 995 N.E.2d 718, in support of his argument that his substantial rights were prejudiced, his reliance is misplaced. In Nunley, the amendments to the predicate offenses that were alleged as the basis for the habitual offender enhancement were made at the last moment, that is, on the day after the jury was empaneled. Evans, by contrast, had at least seven months’ notice of the amendment and a reasonable opportunity to prepare for and defend against the predicate offenses alleged in the habitual offender enhancement information. The trial court did not abuse its discretion by allowing the amendment.

II. Law of the Case Doctrine

[24] Evans also argues the trial court abused its discretion by (1) ordering a retrial of the habitual offender enhancement and (2) imposing the habitual offender enhancement after he had already completed his sentence on the underlying offense. The State argues these claims were addressed in Evans V and our decision there is the law of the case. We agree.

[25] “The ‘law of the case doctrine’ is a discretionary tool by which appellate courts decline to revisit legal issues already determined on appeal in the same case and on substantially the same facts.” Maciaszek v. State, 113 N.E.3d 788, 791 (Ind. Ct. App. 2018). “Under that doctrine, the decision of an appellate court becomes the law of the case and governs the case throughout all of its subsequent stages, as to all questions which were presented and decided, both directly and indirectly.” Id.

[26] In Evans V, Evans contended “the State lack[ed] authority to re-prosecute him on the sentencing enhancement because he [was] entitled to immediate release, having completed his sentence for attempted murder.” See Evans V, No. 23A-CR-2403, *2. The Evans V court expressly rejected this argument, finding that although his sentence on the underlying offenses had been completed, “the State may retry Evans on the habitual offender sentencing enhancement.” Id. at *3. As such, this Court has already determined that a retrial of the habitual offender enhancement is permissible notwithstanding that Evans has completed his sentence. Both of Evans’ claims in the instant case would have us revisit this holding. We decline to do so.

[27] The judgment of the trial court is affirmed.⁴

[28] Affirmed.

FOOTNOTES

1.   The trial court vacated the aggravated battery and criminal confinement convictions on double jeopardy grounds.

2.   Evans moved to certify for interlocutory appeal the order denying his motion to dismiss and to stay the proceedings. The trial court granted his motion. This Court, however, denied Evans’ request to accept jurisdiction over his interlocutory appeal.

3.   Over a month before trial, the State again moved to amend the habitual offender information, this time in order to remove one of the four convictions alleged. On appeal, Evans does not challenge that amendment. We therefore limit our analysis to the August 2023 amendment.

4.   Evans also argues the State waived the ability to retry him on the habitual offender enhancement by failing to assert it could during the Evans IV proceedings. In support, he cites to caselaw finding waiver where a party fails to object or raise a challenge to a known issue. See Appellant's Br. pp. 20-21. That is not the situation here. Throughout the proceedings in Evans IV, the State's ability to retry Evans was not at issue. Only upon remand did this become relevant, and at that point the State promptly asserted its intention to retry under Jaramillo v. State, 823 N.E.2d 1187 (Ind. 2005). We find no waiver here.

Scheele, Judge.

May J., and Weissmann, J., concur.