806 NE2D 310 - Edington v. State

¶1ON PETITION TO TRANSFER FROM THE INDIANA COURT OF APPEALS, NO. 50A03-0212-PC-00448.

SHEPARD, Chief Justice.

¶2In 1997, Brian C. Edington was convicted of attempted murder as an accomplice, a class A felony.1 On direct appeal, Ed-ington contended that insufficient evidence supported the conviction, that the trial court wrongly admitted identification testimony, and that the sentence was erroneous. The Court of Appeals affirmed his conviction. Edington v. State, No. 50A05-9706-CR-217, 699 N.E.2d 335 (Ind.Ct.App. July 13, 1998).

¶3In 2002, Edington sought post-convietion relief, contending that giving the jury instruction on attempted murder as an accomplice constituted fundamental error because it lacked the element of specific intent to kill. He contended that this claim about the culpability required to convict an accomplice of atterapted murder was not available to him because we had yet to decide Bethel v. State, 780 N.E.2d 1242 (Ind.2000). Of course, in Williams v. State we explained:

Bethel did not announce a new rule of criminal procedure but rather explained what the State was already required to prove to gain a conviction for attempted murder under a complicity theory or otherwise: "[The same specific intent to kill must be shown for an attempted murder as for the crime of murder!

¶4737 N.E.2d 734, 740-41 n. 16 (Ind.2000) (quoting Zickefoose v. State, 270 Ind. 618, 620, 388 N.E.2d 507, 509 (1979) (alteration in original)).2

¶5The post-conviction court denied Eding-ton's petition. The Court of Appeals reversed, concluding that giving the improper jury instruction was fundamental error. Edington v. State, 792 N.E.2d 579 (Ind.Ct.App.2003).

¶6We granted transfer, vacating the Court of Appeals opinion, and now affirm the post-conviction court. As we have regularly observed:

[The fundamental error exception to the contemporaneous objection rule applies to direct appeals. In post-conviction proceedings, complaints that something went awry at trial are generally cognizable only when they show deprivation of the right to effective counsel or issues demonstrably unavailable at the time of trial or direct appeal.

¶7 *311 Sanders v. State, 765 N.E.2d 591, 592 (Ind. 2002); Canaan v. State, 688 N.E.2d 227, 285 n. 6 (Ind.1997). It was wrong to grant relief on Edington's fundamental error claim.

¶8We thus affirm the post-conviction court's denial of relief.

DICKSON, BOEHM, and RUCKER, JJ., concur.SULLIVAN, J., concurs with separate opinion.

¶9. See Ind.Code 35-41-2-4; Ind.Code 35-41-5-1; Ind.Code 35-42-1-1.

¶10. In Williams, the prisoner had raised the question on direct appeal and we were willing to lift the bar of res judicata. Williams, 737 N.E.2d at 738. Edington did not raise his current claim on direct appeal.

SULLIVAN, Justice,

¶11concurring.

¶12I concur in all respects. As the author of Williams, I feel obligated to acknowledge that language in that opinion 1 seems inconsistent with other language from Williams quoted in today's opinion. To the extent they do conflict, I agree that the interpretation given Williams by today's opinion is what the author of Williams intended.

¶13. "[In Bethel,] we explained for the first time how Spradlin [v. State, 569 N.E.2d 948 (Ind. 1991)] applies to persons 'convicted for the offense of aiding an attempted murder."" Williams v. State, 737 N.E.2d 734, 738 (Ind. 2000) (quoting Bethel v. State, 730 N.E.2d 1242, 1246 (Ind.2000)).