Edington v. State

806 N.E.2d 310, 2004 Ind. LEXIS 374, 2004 WL 842854

• Court: Indiana Supreme Court
• Decided: April 20, 2004
• Docket: 50S03-0310-PC-00462
• Status: Published

Opinions

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

SHEPARD, Chief Justice.

In 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).

In 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!

737 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

The 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).

We 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.

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.

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

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

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

2 . 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.