Pursuant to Ind. Appellate Rule 65(D), this 

Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

NANCY A. MCCASLIN GREGORY F. ZOELLER

McCaslin & McCaslin Attorney General of Indiana

Elkhart, Indiana

ANDREW R. FALK

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

MATTHEW G. FEARNOW, )

)

Appellant-Defendant, )

)

vs. ) No. 20A03-1107-CR-341

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE ELKHART SUPERIOR COURT 

The Honorable Lee Roy Berry, Judge Pro Tempore

Cause No. 20D05-0607-CM-459

March 13, 2012

 

MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge 
2

Matthew G. Fearnow (“Fearnow”) appeals from his conviction after a bench trial for

one count of harassment1as a Class B misdemeanor. Fearnow presents the following restated 

issues for our review: 

I. Whether the trial court gave Fearnow an adequate advisement of the 

perils of proceeding pro se; 

II. Whether the trial court erred by allowing the State to amend the 

charging information at trial; and 

III. Whether there was sufficient evidence to support Fearnow‟s harassment

conviction.

We affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

On June 21, 2006, Fearnow left a message for Wendy Haddock (“Haddock”) on her 

cell phone. Fearnow stated that he was going to slit Haddock‟s throat, run her car off the 

road, and bash in her face. Haddock was at her grandmother‟s house in Union, Michigan 

when she received the message. Haddock and Fearnow knew each other because they went 

to school together. Haddock later allowed her friend, Crystal Smith (“Smith”), to listen to the

message. Both Haddock and Smith had spoken with Fearnow on the phone before and could 

identify his voice.

A few days later, Fearnow called Haddock‟s cell phone and left a second message for 

her indicating that he was going to bash her face in, run her off the road, and slit her throat. 

Haddock was at Smith‟s home in Elkhart, Indiana when she received that second message. 

 

1

See Ind. Code §35-45-2-2.
3

Haddock and Smith listened to the message and identified Fearnow as the caller. Haddock 

believed that Fearnow was angry with her because she had involved his parents in a situation 

between the two when he had failed to act.

Haddock was intimidated and scared by the calls and contacted the Elkhart County 

Sheriff‟s Department after receiving the second message from Fearnow. Officer Jeremy

Shotts responded to her call and listened to the messages at Haddock‟s grandmother‟s home 

in Michigan. Haddock had recently moved from her home in Elkhart, Indiana to Union, 

Michigan in order to live with and assist her grandmother. Haddock was going back and 

forth between the two residences, but listed her Elkhart address as her residence because that 

was the address on her driver‟s license. 

The State charged Fearnow with two counts of harassment, each as a Class B 

misdemeanor. Fearnow appeared pro se at his bench trial. The trial court dismissed one of 

the Class B misdemeanor counts, and convicted Fearnow of the second count. The trial court 

sentenced Fearnow to ninety days at the Indiana Department of Correction, with all ninety 

days suspended. The trial court imposed six months of non-reporting probation and entered a 

no-contact order with Haddock. 

Fearnow did not appeal his conviction or sentence. On February 2, 2007, the State 

filed a notice of probation violation. Fearnow admitted to the violation at the hearing held on 

the matter. The trial court revoked Fearnow‟s probation and ordered him to serve ninety days 

at the Indiana Department of Correction. 
4

Fearnow filed a pro se petition for post-conviction relief. The state public defender 

filed a petition for permission to file a belated notice of appeal on Fearnow‟s behalf. The 

trial court denied the petition, and Fearnow appealed from that order. A panel of this court 

reversed the trial court, finding that the trial court had abused its discretion by denying the 

petition for permission to file a belated notice of appeal. See Fearnow v. State, No. 20A03-

1010-CR-552, 2011 WL 2410045, *6 (Ind. Ct. App. June 10, 2011). Fearnow now appeals. 

Additional facts will be supplied as necessary. 

DISCUSSION AND DECISION

I. Proceeding Pro Se

Fearnow argues that the trial court erred by failing to advise him of the risks of 

proceeding pro se. Fearnow indicated on the back of his advisement of rights and penalties 

form that he did not want to hire counsel to assist him. The trial court confirmed that 

Fearnow did not wish to hire counsel and told him the date of his trial. On the day of his 

bench trial, Fearnow appeared in person and waived the assistance of counsel. The trial court 

read the charging information and asked the State if it was ready to proceed. The trial then 

commenced.

A criminal defendant‟s right to counsel is guaranteed by both the Sixth Amendment to 

the United States Constitution and Article I, Section 13 of the Indiana Constitution. Castel v. 

State, 876 N.E.2d 768, 770 (Ind. Ct. App. 2007). The right can only be relinquished by a 

knowing, voluntary, and intelligent waiver. Id. at 771. We conduct a de novo review of the 

trial court‟s conclusion that a defendant knowingly, intelligently, and voluntarily waived the 
5

right to counsel. Drake v. State, 895 N.E.2d 389, 393 (Ind. Ct. App. 2008). A defendant has 

the right to counsel in both misdemeanor and felony cases. Argersinger v. Hamlin, 407 U.S. 

25, 37 (1972) (Sixth Amendment of the United States Constitution analysis); Bolkovac v. 

State, 229 Ind. 294, 98 N.E.2d 250, 253 (1951) (Article I, Section 13 of the Indiana 

Constitution analysis). 

When a defendant indicates to the trial court that he wishes to proceed without 

counsel, “[t]he trial court must establish a record showing that the defendant was aware of 

the nature, extent, and importance of the right and the consequences of waiving it. Merely 

informing the defendant of his constitutional rights is insufficient.” Sedberry v. State, 610 

N.E.2d 284, 286 (Ind. Ct. App. 1993), abrogated on other grounds by Hopper v. State, 934 

N.E.2d 1086, 1088 (Ind. 2010). In general, for a defendant‟s waiver of counsel to be deemed 

knowing and intelligent, a trial court should advise a defendant “of the potential pitfalls 

surrounding self-representation so that it is clear that „he knows what he is doing and [that] 

his choice is made with eyes open.‟” Kubsch v. State, 866 N.E.2d 726, 736 (Ind. 2007) 

(quoting Faretta v. California, 422 U.S. 806, 835 (1975)). 

The State concedes that Fearnow was not adequately advised of the risks of 

proceeding pro se. See Appellee’s Br. at 10. We agree. Therefore, we vacate Fearnow‟s 

conviction and remand this matter for re-trial. 

II. Amending the Charging Information

Fearnow contends that the trial court erred by allowing the State to amend the 

charging information to correct a scrivener‟s error setting out the address where the alleged 
6

harassment occurred. During the trial, Haddock revealed that she received the second cell 

phone message from Fearnow while she was at Smith‟s house in Elkhart. The State moved 

to amend the charging information to conform to the evidence. Each of the counts of the 

charging information each alleged that Haddock received the cell phone messages at the 

street address of Haddock‟s grandmother‟s home in Union, Michigan, but alleged that the 

address was in Elkhart, Indiana. The State was allowed to amend each of the counts in the 

charging information to accurately reflect Haddock‟s address in Elkhart. The amendment at 

issue here, is the State‟s motion to amend the second count to reflect Smith‟s address in 

Elkhart.

Indiana Code section 35-34-1-5(c) provides as follows:

(c) Upon motion of the prosecuting attorney, the court may, at any time 

before, during, or after the trial, permit an amendment to the indictment or 

[i]nformation in respect to any defect, imperfection, or omission in form which 

does not prejudice the substantial rights of the defendant.

Substantive amendments are only allowed before trial, whereas amendments to form are 

allowed at any time as long as the amendment does not prejudice the substantial rights of the 

defendant. Ind. Code §35-34-1-5(b), (c). An amendment is one of form if a defense under 

the original information would be equally available after the amendment and the defendant‟s 

evidence would apply equally to the information in either form. Gibbs v. State, 952 N.E.2d 

214, 221 (Ind. Ct. App. 2011). The question is whether the defendant had a reasonable 

opportunity to prepare for and defend against the charge against him. Jones v. State, 863 

N.E.2d 333, 339 (Ind. Ct. App. 2007).
7

Here, Fearnow had the opportunity to prepare for and defend against the charge 

against him. The change in the address where Haddock was located when she received 

Fearnow‟s cell phone message was one of form and not substance, and his rights were not 

affected. The trial court did not err in granting the State‟s second motion to amend the 

information. 

III. Sufficiency of the Evidence

Fearnow claims that the evidence was insufficient to support his conviction. We 

address this issue because it is relevant to whether the State may pursue a retrial. “The 

general rule of sufficiency is that if a conviction is reversed on appeal because the State 

failed to present evidence to support the conviction beyond a reasonable doubt, the Double 

Jeopardy Clause precludes retrial.” Jaramillo v. State, 823 N.E.2d 1187, 1190 (Ind. 2005). 

When reviewing the sufficiency of the evidence, we consider only the probative 

evidence and reasonable inferences supporting the verdict. Mork v. State, 912 N.E.2d 408, 

411 (Ind. Ct. App. 2009). We do not reweigh the evidence or reassess witness credibility. 

Id. We consider conflicting evidence most favorably to the trial court‟s ruling. Id. We will 

affirm the conviction unless no reasonable fact-finder could find the elements of the crime 

proven beyond a reasonable doubt. Id.

In order to convict Fearnow of harassment, the State had to prove that “[a] person 

who, with an intent to harass, annoy, or alarm another person but with no intent of legitimate 

communication [] makes a telephone call, whether or not a conversation ensues[.]” Ind. 

Code § 35-45-2-2. The evidence presented at trial showed that Haddock received on her cell 
8

phone a telephone message from Fearnow. Haddock and Smith recognized Fearnow‟s voice 

because they had spoken with him on the phone before. Haddock testified that Fearnow told 

her he was going to slit her throat, run her car off the road, and bash in her face. She further 

testified that she was placed in fear by the telephone message. This evidence was sufficient 

to have sustained Fearnow‟s conviction for harassment as a Class B misdemeanor. 

The retrial of a defendant upon a charge is not necessarily a „punishment.‟ 

Indeed, once a court has vacated the conviction of an accused to grant a new 

trial, that person is placed in a position as if he had never been tried upon that 

charge at all. It is only where a conviction has been premised upon the 

insufficiency of the evidence that retrial is barred.

Moore v. State, 698 N.E.2d 1203, 1205 (Ind. Ct. App. 1998) (quoting Moore v. State, 653 

N.E.2d 1010, 1019 (Ind. Ct. App. 1995)). Therefore, because the evidence was sufficient to 

have sustained Fearnow‟s conviction, Fearnow may be retried on the charge. 

Affirmed in part, reversed in part, and remanded.

BARNES, J., and BRADFORD, J., concur.