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FOR PUBLICATION
ATTORNEYS FOR APPELLANT: SUSAN K. CARPENTER Public Defender of Indiana JONATHAN O. CHENOWETH Deputy Public Defender Indianapolis, Indiana ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana J.T. WHITEHEAD Deputy Attorney General Indianapolis, Indiana

FILED
of the supreme court, court of appeals and tax court

Dec 30 2008, 9:11 am

IN THE COURT OF APPEALS OF INDIANA
TROY R. SHAW, Appellant-Petitioner, vs. STATE OF INDIANA, Appellee-Respondent. ) ) ) ) ) ) ) ) )

CLERK

No. 02A03-0804-PC-202

APPEAL FROM THE ALLEN SUPERIOR COURT The Honorable John F. Surbeck, Jr., Judge Cause No. 02D04-0401-PC-4

December 30, 2008 OPINION - FOR PUBLICATION

MAY, Judge

Troy Shaw was denied post-conviction relief. He raises two issues on appeal: 1. Whether trial counsel was ineffective for objecting to an aggravated battery instruction; and 2. Whether appellate counsel was ineffective for failing to argue the trial court erred by allowing the State to amend the charging information after the omnibus date. We affirm. FACTS AND PROCEDURAL HISTORY In 2000, Troy Shaw was 18 years old and living in Ohio with his family. Shortly after graduating from high school, Shaw was recruited by New River Subscription Services to sell magazines door-to-door. The company, whose representatives traveled together by van, promised exciting travel opportunities and parties. Several days after joining the team, Shaw found himself at a motel in Fort Wayne, Indiana. The group's manager discovered a man, later identified as Brett King, in one of the motel rooms the manager had rented. An argument ensued between the manager and King, and King fled the room. The manager told his employees to catch King, and several employees chased King into a nearby ditch. The employees, including Shaw, kicked and struck King several times. According to two other employees, Shaw "football kicked" King in the face. (Tr. at 252, 286.) King went limp, and Shaw continued to kick and beat him. King's dead body was found later that day, and the Fort Wayne police were notified. An autopsy indicated King died from blunt force injury to the head caused by several blows. 2

On June 9, 2000, Shaw was arrested and charged with one count of Class B felony aggravated battery.1 An omnibus date was set for July 31, 2000. On December 12, 2001, the trial court granted the State's motion to amend the charging information to one count of murder2 and granted Shaw's motion for a continuance. The trial commenced on February 11, 2002. The trial court instructed the jury on murder and involuntary

manslaughter. The State proposed an instruction on aggravated battery as a lesserincluded offense, but Shaw objected. The court determined the instruction was not supported by the evidence and would not be given. The jury found Shaw guilty of murder. In August of 2002, Shaw appealed the sufficiency of evidence supporting his conviction. We affirmed. Shaw v. State, No. 02A03-0205-CR-132 (Ind. Ct. App., May 7, 2003). In April of 2007, Shaw filed an amended petition for post-conviction relief alleging ineffective assistance of trial and appellate counsel. A hearing was held on October 22, 2007, and on March 5, 2008 the post-conviction court denied his petition. DISCUSSION AND DECISION In post-conviction proceedings, the petitioner has the burden of establishing grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1.5. Because Shaw bore the burden of proof, he stands in the position of one appealing from a negative judgment. Spranger v. State, 650 N.E.2d 1117, 1119 (Ind. 1995), reh'g denied,
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Ind. Code

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