OPINION
BROOK, Judge
Case Summary
Appellant-defendant Kevin Coleman (“Coleman”) appeals from the denial of his petition for post-conviction relief, arising from his conviction for attempted murder, a Class A felony. We affirm.
[26]*26Issues
Coleman presents four issues for review, which we combine and restate as follows:
(1) whether the trial court committed fundamental error in instructing the jury-on attempted murder; and
(2) whether Coleman was denied effective assistance of trial and appellate counsel.
Facts and Procedural History
A detailed recitation of the facts may be found in our supreme court’s consideration of Coleman’s direct appeal, in which he challenged the sufficiency of the evidence supporting his conviction. Coleman v. State, 520 N.E.2d 1270 (Ind.1988).
Sonia Nalls (“Nalls”) had known Coleman for several years, having grown up “in the same neighborhood and played together as children.” Id. at 1271. On January 22,1985, Nalls came home from school to find Coleman in her apartment. Coleman pushed her into the living room and shoved her head against the wall with enough force to make a hole in the dry wall. He pinned Nalls to the floor, stabbed her several times in the chest with a barbecue fork, and attempted to choke her four times with a telephone cord. Coleman then plunged a pair of scissors into her neck and left the apartment. Id.
On January 23, 1985, Coleman was charged with attempted murder, a Class A felony. A jury trial was conducted on October 23,1985. Before the State presented its case, the trial court read Preliminary Instruction No. 2 to the jury:
MURDER is defined by Statute in the State of Indiana as follows:
A person who knowingly or intentionally kills another human being, commits murder, a felony.
Preliminary Instruction No. 3 was read as follows:
ATTEMPT is defined by Statute in the State of Indiana as follows:
A person attempts to commit a crime when, acting with the culpability for commission of the crime, he engages in conduct that constitutes a substantial step toward commission of the crime. An attempt to commit a crime is a felony or misdemeanor of the same class as the crime attempted. However, the attempt to commit murder is a class A felony.
After the State presented its case-in-chief, Coleman rested his case without calling any witnesses. The trial court then read its final instructions to the jury, including Final Instruction No. 2:
MURDER is defined by Statute in the State of Indiana as follows:
A person who knowingly or intentionally kills another human being or kills another human being while committing or attempting to commit arson, burglary, child molesting, criminal deviate conduct, kidnapping, rape, or robbery, commits murder, a felony.
(Emphasis supplied.) Unlike Preliminary Instruction No. 2, this final instruction contained language describing the crime of felony murder under IND. CODE § 35-42-1-1 (see emphasis above); Coleman had never been charged with any of the enumerated crimes, but he failed to object to the instruction at trial. Final Instruction No. 3 regarding attempt was identical to its corresponding preliminary instruction.
On October 23, 1985, the jury found Coleman guilty of attempted murder. He was sentenced to the Indiana Department of Corrections for 50 years on November 5, 1985. Coleman filed a belated motion to correct errors on September 5, 1986, which was denied on November 10,1986. Coleman filed a praecipe for an appeal on October 2, 1986, and the Indiana Supreme Court affirmed his conviction on April 6, 1988.1 On May 31, 1994, Coleman filed his original petition for post-conviction relief, alleging for the first time that the trial court had erred in instructing the jury on attempted murder and that his trial and appellate counsel had been ineffective for failing to challenge the instruction. A post-conviction hearing was held on October 31, 1996. The trial court issued its findings of fact and conclusions of law on [27]*27February 27, 1998, denying Coleman’s petition for post-conviction relief.
Discussion and Decision
Before reversing a negative judgment on post-conviction relief, this Court “must be convinced that the evidence as a whole was such that it leads unerringly and unmistakably to a decision opposite that reached” by the post-conviction court. Canaan v. State, 683 N.E.2d 227, 229 (Ind.1997), cert. denied, — U.S. -, 118 S.Ct. 2064, 141 L.Ed.2d 141 (1998). We consider only that evidence supporting the post-conviction court’s decision, along with any reasonable inferences to be drawn therefrom. McCullough v. State, 672 N.E.2d 445, 447 (Ind.Ct.App.1996), trans. denied (1997). Where a defendant is afforded an opportunity to raise an issue on direct appeal and does not do so, that issue may not be considered as a basis for post-conviction relief. See Canaan, 683 N.E.2d at 235 (issue not raised at trial or on direct appeal “not available as a grounds for collateral attack”).
Attempting to sidestep the issue of waiver, Coleman has framed his assertions in terms of fundamental error; we note that such error must “constitute a clearly blatant violation of basic and elementary principles, and the prejudice therefrom must be so substantial that the defendant was denied a fair trial.” Wilson v. State, 611 N.E.2d 160, 162 (Ind.Ct.App.1993), trans. denied. Moreover, our supreme court has held that the scope of fundamental error for post-conviction petitions must generally be limited to “[deprivation of the Sixth Amendment right to effective assistance of counsel” or an issue “demonstrably unavailable” to the defendant at trial and on direct appeal. Canaan, 683 N.E.2d at 235-236, n. 6, quoting Bailey v. State, 472 N.E.2d 1260, 1263 (Ind.1985). Coleman could certainly have objected to the jury instruction at a much earlier stage in the judicial process and has thereby failed to preserve the issue for review; nevertheless, we will address his contentions on the merits.
I. Final Instruction No. 2 and fundamental error
Coleman correctly observes that the instruction, as given, impermissibly allowed the jury to convict him of “attempted felony murder” — a crime that does not exist in Indiana. Holland v. State, 609 N.E.2d 429, 432 (Ind.Ct.App.1993). Felony murder does not require proof that a defendant specifically intended to commit murder; instead, it “requires only proof of the mens rea necessary for the underlying felony.” Armstrong v. State, 540 N.E.2d 626, 627 (Ind.Ct.App.1989), trans. denied.
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
BROOK, Judge
Case Summary
Appellant-defendant Kevin Coleman (“Coleman”) appeals from the denial of his petition for post-conviction relief, arising from his conviction for attempted murder, a Class A felony. We affirm.
[26]*26Issues
Coleman presents four issues for review, which we combine and restate as follows:
(1) whether the trial court committed fundamental error in instructing the jury-on attempted murder; and
(2) whether Coleman was denied effective assistance of trial and appellate counsel.
Facts and Procedural History
A detailed recitation of the facts may be found in our supreme court’s consideration of Coleman’s direct appeal, in which he challenged the sufficiency of the evidence supporting his conviction. Coleman v. State, 520 N.E.2d 1270 (Ind.1988).
Sonia Nalls (“Nalls”) had known Coleman for several years, having grown up “in the same neighborhood and played together as children.” Id. at 1271. On January 22,1985, Nalls came home from school to find Coleman in her apartment. Coleman pushed her into the living room and shoved her head against the wall with enough force to make a hole in the dry wall. He pinned Nalls to the floor, stabbed her several times in the chest with a barbecue fork, and attempted to choke her four times with a telephone cord. Coleman then plunged a pair of scissors into her neck and left the apartment. Id.
On January 23, 1985, Coleman was charged with attempted murder, a Class A felony. A jury trial was conducted on October 23,1985. Before the State presented its case, the trial court read Preliminary Instruction No. 2 to the jury:
MURDER is defined by Statute in the State of Indiana as follows:
A person who knowingly or intentionally kills another human being, commits murder, a felony.
Preliminary Instruction No. 3 was read as follows:
ATTEMPT is defined by Statute in the State of Indiana as follows:
A person attempts to commit a crime when, acting with the culpability for commission of the crime, he engages in conduct that constitutes a substantial step toward commission of the crime. An attempt to commit a crime is a felony or misdemeanor of the same class as the crime attempted. However, the attempt to commit murder is a class A felony.
After the State presented its case-in-chief, Coleman rested his case without calling any witnesses. The trial court then read its final instructions to the jury, including Final Instruction No. 2:
MURDER is defined by Statute in the State of Indiana as follows:
A person who knowingly or intentionally kills another human being or kills another human being while committing or attempting to commit arson, burglary, child molesting, criminal deviate conduct, kidnapping, rape, or robbery, commits murder, a felony.
(Emphasis supplied.) Unlike Preliminary Instruction No. 2, this final instruction contained language describing the crime of felony murder under IND. CODE § 35-42-1-1 (see emphasis above); Coleman had never been charged with any of the enumerated crimes, but he failed to object to the instruction at trial. Final Instruction No. 3 regarding attempt was identical to its corresponding preliminary instruction.
On October 23, 1985, the jury found Coleman guilty of attempted murder. He was sentenced to the Indiana Department of Corrections for 50 years on November 5, 1985. Coleman filed a belated motion to correct errors on September 5, 1986, which was denied on November 10,1986. Coleman filed a praecipe for an appeal on October 2, 1986, and the Indiana Supreme Court affirmed his conviction on April 6, 1988.1 On May 31, 1994, Coleman filed his original petition for post-conviction relief, alleging for the first time that the trial court had erred in instructing the jury on attempted murder and that his trial and appellate counsel had been ineffective for failing to challenge the instruction. A post-conviction hearing was held on October 31, 1996. The trial court issued its findings of fact and conclusions of law on [27]*27February 27, 1998, denying Coleman’s petition for post-conviction relief.
Discussion and Decision
Before reversing a negative judgment on post-conviction relief, this Court “must be convinced that the evidence as a whole was such that it leads unerringly and unmistakably to a decision opposite that reached” by the post-conviction court. Canaan v. State, 683 N.E.2d 227, 229 (Ind.1997), cert. denied, — U.S. -, 118 S.Ct. 2064, 141 L.Ed.2d 141 (1998). We consider only that evidence supporting the post-conviction court’s decision, along with any reasonable inferences to be drawn therefrom. McCullough v. State, 672 N.E.2d 445, 447 (Ind.Ct.App.1996), trans. denied (1997). Where a defendant is afforded an opportunity to raise an issue on direct appeal and does not do so, that issue may not be considered as a basis for post-conviction relief. See Canaan, 683 N.E.2d at 235 (issue not raised at trial or on direct appeal “not available as a grounds for collateral attack”).
Attempting to sidestep the issue of waiver, Coleman has framed his assertions in terms of fundamental error; we note that such error must “constitute a clearly blatant violation of basic and elementary principles, and the prejudice therefrom must be so substantial that the defendant was denied a fair trial.” Wilson v. State, 611 N.E.2d 160, 162 (Ind.Ct.App.1993), trans. denied. Moreover, our supreme court has held that the scope of fundamental error for post-conviction petitions must generally be limited to “[deprivation of the Sixth Amendment right to effective assistance of counsel” or an issue “demonstrably unavailable” to the defendant at trial and on direct appeal. Canaan, 683 N.E.2d at 235-236, n. 6, quoting Bailey v. State, 472 N.E.2d 1260, 1263 (Ind.1985). Coleman could certainly have objected to the jury instruction at a much earlier stage in the judicial process and has thereby failed to preserve the issue for review; nevertheless, we will address his contentions on the merits.
I. Final Instruction No. 2 and fundamental error
Coleman correctly observes that the instruction, as given, impermissibly allowed the jury to convict him of “attempted felony murder” — a crime that does not exist in Indiana. Holland v. State, 609 N.E.2d 429, 432 (Ind.Ct.App.1993). Felony murder does not require proof that a defendant specifically intended to commit murder; instead, it “requires only proof of the mens rea necessary for the underlying felony.” Armstrong v. State, 540 N.E.2d 626, 627 (Ind.Ct.App.1989), trans. denied. As noted above, Coleman was never charged for any of the underlying felony murder offenses. Furthermore, because the instruction permitted the jury to find that he “knowingly” engaged in conduct to kill Nalls, it did not advise them that they had to find that Coleman acted with the specific intent to kill. See Swallows v. State, 674 N.E.2d 1317, 1318 (Ind.1996); Spradlin v. State, 569 N.E.2d 948, 950 (Ind.1991). For these reasons, Coleman argues that the trial court’s failure to give a proper instruction on attempted murder constitutes fundamental, reversible error.
Our supreme court has noted, however, that “in cases on direct appeal where intent is not in issue, instructions which fail to advise the jury that specific intent to kill is required to convict a defendant of attempted murder do not necessarily constitute fundamental error.” Swallows, 674 N.E.2d at 1318. See also Blanche v. State, 690 N.E.2d 709, 713 (Ind.1998) (identity, not intent, was at issue at trial; no error found on direct appeal); Goudy v. State, 689 N.E.2d 686, 697 (Ind.1997) (intent not at issue at trial; no error found).2 As in Swallows, “because intent was not at issue at trial and because [Coleman] waited until post-conviction to raise the issue of specific intent,” Final Instruction No. 2 “did not constitute fundamen[28]*28tal error.” 674 N.E.2d at 1318.3 Given the indisputable evidence that Coleman intended to kill Nalls, the fact that the instruction contained the felony murder language and the term “knowingly” can only be considered harmless error.4
II. Ineffective assistance of counsel
In claiming ineffective assistance of counsel, Coleman “must show not only that counsel’s performance was deficient, but also that the deficient performance prejudiced the defense.” Wilson, 611 N.E.2d at 162. “A mere assertion of error, absent evidence of prejudice, will not support a claim of ineffective assistance of counsel.” Id. Because we have held that Final Instruction No. 2 did not constitute fundamental error, Coleman cannot show that he was prejudiced by his counsel’s performance at trial or on appeal; therefore, we need not determine whether their performance was deficient. See id. at 164-165.
Conclusion
For the foregoing reasons, we affirm the judgment of the post-conviction court.
Affirmed.
STATON, J., concurs.
RILEY, J., dissents with opinion.