SHIELDS, Presiding Judge.
Merle Garner appeals the denial of his amended petition for post-conviction relief.
We reverse.
ISSUE
Garner presents several issues for our review, one of which is dispositive: Whether error occurred when Garner was found guilty and sentenced for robbery as a class A felony where the amended information charged him with robbery as a class B felony and where, in addition, the record is devoid of evidence of serious bodily injury.
FACTS
The information charged that Garner did knowingly, while armed with a deadly weapon ... take from the person or presence of DAVID BURNETT property ... by putting DAVID BURNETT in fear or [1310]*1310by using or threatening the use of force on DAVID BURNETT which resulted in bodily injury to EARL YOUNG, to wit: GUNSHOT WOUND IN THE RIGHT ARM....
Trial Record at 6. Garner was convicted of robbery, a class A felony, after a bench trial. He was sentenced to serve the presumptive sentence of thirty years. He appealed.
The facts relating to the underlying conviction, as set forth by our supreme court in Garner's direct appeal, are:
On the evening of November 15, appellant entered a small private social club. The club was not particularly exclusive and if one were known he could gain admittance. The persons attending the club could engage in illegal games of chance.
After drinking a beer, appellant fired a warning shot and announced his intention to rob the club and the "members" who were present. Although the evidence is in conflict as to how many shots appellant fired, it is clear that he fired his weapon at least once, since the bartender was grazed by a bullet, and appellant admitted on redirect examination that he fired his weapon once.
Garner v. State (1980), 274 Ind. 675, 413 N.E.2d 584, 584-5.
The supreme court affirmed Garner's conviction concluding there was sufficient evidence from which the fact finder "could find beyond a reasonable doubt that [Garner] committed armed robbery and that injury was inflicted during the commission of the crime." Garner, 413 N.E.2d at 586.
Garner filed a pro se Petition for Post-Conviction Relief which was subsequently amended. The amended petition asserted claims of ineffective assistance of counsel, prosecutorial misconduct, and a conviction that is contrary to law.
Garner was represented by a new attorney at his post-conviction relief hearing. The post-conviction court denied Garner's petition on May 18, 1987 on the grounds of waiver. - Garner, represented by the Indiana Public Defender, requested and received permission to file a belated motion to correct error (Indiana Rules of Procedure, Post-Conviction Relief Rule 2) addressed to the denial of post-conviction relief. In the motion, among other allegations, Garner unsuccessfully argued he was convicted of an offense not charged and that the record was devoid of evidence of "serious bodily injury." This appeal ensued.
DECISION
Garner argues the post-conviction court erred when it determined he waived the trial court's error in convicting him of the class A felony robbery. The state argues Garner waived any error because he did not raise it on his direct appeal. Garner asserts the error is fundamental and can be raised at any time.
In Bailey v. State (1985), Ind., 472 N.E.2d 1260, our supreme court addressed ""the propriety of raising an issue singularly characterized as fundamental error in a post-conviction petition." Id. at 1262. Bailey had been convicted of robbery as a class A felony and his conviction had been affirmed on direct appeal. Bailey v. State (1980), 274 Ind. 318, 412 N.E.2d 56. He subsequently petitioned for post-conviction relief claiming, in part, that "insufficient evidence was adduced at trial to support the conviction of a Class A felony, result ing in fundamental error...." Bailey, 472 N.E.2d at 1262. In responding to Bailey's argument, the court held the remedy of post-conviction relief is not a substitute for a direct appeal. Any issue set forth in a post-conviction petition "must be raised within the purview of the post-conviction rules, e.g., deprivation of the Sixth Amendment right to effective assistance of counsel, or be an issue demonstrably unavailable to the petitioner at the time of his trial and direct appeal." Id. at 1268. The latter situation existed, according to the court, because Clay v. State (1981), 275 Ind. 256, 416 N.E.2d 842 and Hill v. State (1981), Ind., 424 N.E.2d 999, the cases creating the basis of his claim, had not been decided at the time of Bailey's trial: "In the instant case, the [insufficiency of the evidence issue] raised by [Bailey was] not available to [1311]*1311him at the time of his trial and direct appeal." - Bailey, 472 N.E.2d at 1268. Hence, the supreme court addressed the merits of Bailey's argument.
Based upon the date of Garner's convietion, it is obvious our supreme court's decisions in Clay and Hill were not available to Garner at the time of his trial and his direct appeal. - Therefore, Garner has raised "within the purview of the post-conviction rules ... an issue demonstrably unavailable to the petitioner at the time of his trial and direct appeal." Bailey at 1268. Based upon Bailey we determine Garner has set forth errors which are fundamental in dimension. Therefore, we turn to the merits of Garner's argument.
Garner claims the trial court erred when it convicted him of a class A felony robbery whereas the information charged only a class B felony robbery and, in addition, there is no evidence the bystander suffered serious bodily injury.
The state claims that by describing the injury to the bystander as a gunshot wound the information alleges an injury sufficiently grievous to be serious bodily injury. It further asserts there is evidence to show serious bodily injury.
The reversal of Garner's conviction is mandated on two grounds: he was convict ed of an offense with which he was not charged and the evidence is insufficient to support his conviction of the class A felony.
The substance of Garner's argument revolves around the robbery statute as it existed in 1979 and the supreme court's 1981 discussion of the legislature's intent. In 1979, robbery was defined as follows:
A person who knowingly or intentionally takes the property from another person or from the presence of another person:
(1) By using or threatening the use of force on any person; or
(2) By putting any person in fear; commits robbery, a class C felony. However, the offense is a class B felony if it is committed while armed with a deadly weapon, and a class A felony if it results in either bodily injury or serious bodily injury to any other person.
IC 85-42-5-1 (repealed). In February 1981, our supreme court interpreted the language of the robbery statute in Clay v. State (1981), Ind., 416 N.E.2d 842:
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SHIELDS, Presiding Judge.
Merle Garner appeals the denial of his amended petition for post-conviction relief.
We reverse.
ISSUE
Garner presents several issues for our review, one of which is dispositive: Whether error occurred when Garner was found guilty and sentenced for robbery as a class A felony where the amended information charged him with robbery as a class B felony and where, in addition, the record is devoid of evidence of serious bodily injury.
FACTS
The information charged that Garner did knowingly, while armed with a deadly weapon ... take from the person or presence of DAVID BURNETT property ... by putting DAVID BURNETT in fear or [1310]*1310by using or threatening the use of force on DAVID BURNETT which resulted in bodily injury to EARL YOUNG, to wit: GUNSHOT WOUND IN THE RIGHT ARM....
Trial Record at 6. Garner was convicted of robbery, a class A felony, after a bench trial. He was sentenced to serve the presumptive sentence of thirty years. He appealed.
The facts relating to the underlying conviction, as set forth by our supreme court in Garner's direct appeal, are:
On the evening of November 15, appellant entered a small private social club. The club was not particularly exclusive and if one were known he could gain admittance. The persons attending the club could engage in illegal games of chance.
After drinking a beer, appellant fired a warning shot and announced his intention to rob the club and the "members" who were present. Although the evidence is in conflict as to how many shots appellant fired, it is clear that he fired his weapon at least once, since the bartender was grazed by a bullet, and appellant admitted on redirect examination that he fired his weapon once.
Garner v. State (1980), 274 Ind. 675, 413 N.E.2d 584, 584-5.
The supreme court affirmed Garner's conviction concluding there was sufficient evidence from which the fact finder "could find beyond a reasonable doubt that [Garner] committed armed robbery and that injury was inflicted during the commission of the crime." Garner, 413 N.E.2d at 586.
Garner filed a pro se Petition for Post-Conviction Relief which was subsequently amended. The amended petition asserted claims of ineffective assistance of counsel, prosecutorial misconduct, and a conviction that is contrary to law.
Garner was represented by a new attorney at his post-conviction relief hearing. The post-conviction court denied Garner's petition on May 18, 1987 on the grounds of waiver. - Garner, represented by the Indiana Public Defender, requested and received permission to file a belated motion to correct error (Indiana Rules of Procedure, Post-Conviction Relief Rule 2) addressed to the denial of post-conviction relief. In the motion, among other allegations, Garner unsuccessfully argued he was convicted of an offense not charged and that the record was devoid of evidence of "serious bodily injury." This appeal ensued.
DECISION
Garner argues the post-conviction court erred when it determined he waived the trial court's error in convicting him of the class A felony robbery. The state argues Garner waived any error because he did not raise it on his direct appeal. Garner asserts the error is fundamental and can be raised at any time.
In Bailey v. State (1985), Ind., 472 N.E.2d 1260, our supreme court addressed ""the propriety of raising an issue singularly characterized as fundamental error in a post-conviction petition." Id. at 1262. Bailey had been convicted of robbery as a class A felony and his conviction had been affirmed on direct appeal. Bailey v. State (1980), 274 Ind. 318, 412 N.E.2d 56. He subsequently petitioned for post-conviction relief claiming, in part, that "insufficient evidence was adduced at trial to support the conviction of a Class A felony, result ing in fundamental error...." Bailey, 472 N.E.2d at 1262. In responding to Bailey's argument, the court held the remedy of post-conviction relief is not a substitute for a direct appeal. Any issue set forth in a post-conviction petition "must be raised within the purview of the post-conviction rules, e.g., deprivation of the Sixth Amendment right to effective assistance of counsel, or be an issue demonstrably unavailable to the petitioner at the time of his trial and direct appeal." Id. at 1268. The latter situation existed, according to the court, because Clay v. State (1981), 275 Ind. 256, 416 N.E.2d 842 and Hill v. State (1981), Ind., 424 N.E.2d 999, the cases creating the basis of his claim, had not been decided at the time of Bailey's trial: "In the instant case, the [insufficiency of the evidence issue] raised by [Bailey was] not available to [1311]*1311him at the time of his trial and direct appeal." - Bailey, 472 N.E.2d at 1268. Hence, the supreme court addressed the merits of Bailey's argument.
Based upon the date of Garner's convietion, it is obvious our supreme court's decisions in Clay and Hill were not available to Garner at the time of his trial and his direct appeal. - Therefore, Garner has raised "within the purview of the post-conviction rules ... an issue demonstrably unavailable to the petitioner at the time of his trial and direct appeal." Bailey at 1268. Based upon Bailey we determine Garner has set forth errors which are fundamental in dimension. Therefore, we turn to the merits of Garner's argument.
Garner claims the trial court erred when it convicted him of a class A felony robbery whereas the information charged only a class B felony robbery and, in addition, there is no evidence the bystander suffered serious bodily injury.
The state claims that by describing the injury to the bystander as a gunshot wound the information alleges an injury sufficiently grievous to be serious bodily injury. It further asserts there is evidence to show serious bodily injury.
The reversal of Garner's conviction is mandated on two grounds: he was convict ed of an offense with which he was not charged and the evidence is insufficient to support his conviction of the class A felony.
The substance of Garner's argument revolves around the robbery statute as it existed in 1979 and the supreme court's 1981 discussion of the legislature's intent. In 1979, robbery was defined as follows:
A person who knowingly or intentionally takes the property from another person or from the presence of another person:
(1) By using or threatening the use of force on any person; or
(2) By putting any person in fear; commits robbery, a class C felony. However, the offense is a class B felony if it is committed while armed with a deadly weapon, and a class A felony if it results in either bodily injury or serious bodily injury to any other person.
IC 85-42-5-1 (repealed). In February 1981, our supreme court interpreted the language of the robbery statute in Clay v. State (1981), Ind., 416 N.E.2d 842:
The Legislature intended to make robbery a class A felony in two situations: (1) when bodily injury resulted to the person being robbed, and (2) when serious bodily injury resulted to any other person. Bodily injury to the robbery victim need not rise to the serious level to impose class A felony liability on the robber.
Id. at 844.
In Hill v. State (1981), Ind., 424 N.E.2d 999, the defendant was convicted of robbery as a class A felony. On appeal, he argued "the evidence on the robbery count showed only a class C robbery...." Id. The supreme court, based upon Clay, reversed Hill's conviction for a class A felony because the evidence did not show serious bodily injury to a bystander and remanded for resentencing as a class C felony.
Therefore, under the 1979 statute, a bystander must suffer "serious bodily injury" in order to support a class A felony robbery conviction. Furthermore, contrary to the state's argument, it is error to charge a defendant with causing "bodily injury" and convict him of a crime for which causing "serious bodily injury" 1 is a required element. Yarbrough v. State (1986), Ind., 497 N.E.2d 206, Hayward v. State (1988), Ind.App., 524 N.E.2d 15; Peek v. State (1983), Ind.App., 454 N.E.2d 450.
The instant information charged Garner, while armed with a deadly weapon, put the robbery victim in fear "by using or threatening the use of foree on [the robbery victim] which resulted in bodily injury to [the bystander], to-wit: GUNSHOT WOUND IN THE RIGHT ARM ..." Trial [1312]*1312Record at 6. Garner was charged with a crime for which causing "bodily injury" is the required element and was convicted of a crime for which causing "serious bodily injury" is the required element. The deadly weapon allegation elevated the robbery to a class B felony; the allegation of bodily injury to a bystander was insufficient to further elevate it to a class A felony. The state's argument that the gunshot wound allegation alleges "an injury sufficiently grievous to be 'serious bodily injury' within the statute defining the latter term" (Ap-pellee's Brief at 18) is without merit. By alleging the gunshot wound constituted "bodily injury" the state cannot now contend the injury was other than it alleged. Therefore, Garner was erroneously convicted of an offense with which he was not charged.
In addition, the record is devoid of evidence from which a reasonable fact finder could conclude the bystander's injury was serious within the statutory definition of serious bodily injury. The bullet went through the bystander's upper arm, unbeknownst to him, until he "[glot in the office. ... [aind felt the blood running down my arm." Trial Record at 187. He went to the hospital; the wound was treated there and he was released immediately thereafter. The bystander testified he had not had any subsequent problems with the arm. Thus, the record is devoid of any evidence of "death, serious permanent disfigurement, unconsciousness, extreme pain, or permanent or protracted loss or impairment of the function of a bodily organ" as required by the statutory definition of "serious bodily injury." IC 35-41-1-2 (1982) (Repealed 1988). The evidence further fails to show the injury created any substantial risk of death. A reasonable fact finder could conclude from this evidence only that the bystander suffered bodily injury.
A similar situation existed in Larry v. State (1985), Ind., 477 N.E.2d 94. In Larry the defendant pled guilty to an information which was amended "by adding the phrase, 'and said robbery resulted in bodily injury to Lt. Norton' to raise the charge to a Class A felony." Id. at 95. Lt. Norton was a bystander. Larry was sentenced for a class A felony. After the supreme court's decisions in Clay and Hill Larry petitioned for post-conviction relief claiming the factual basis for his plea did not support a class A felony charge. The supreme court agreed and, applying Clay and Hill retroactively, reversed the decision of the post-conviction court denying Larry relief and ordered that court to permit Larry to with draw his plea.
Garner was convicted of an uncharged offense, the class A felony robbery. Also, the evidence is insufficient to sustain a conviction for that offense. Therefore, we reverse the judgment of the post-conviction court and order it to vacate Garner's conviction of class A felony robbery. However, based upon the supreme court's determination in Garner's direct appeal that the evidence is sufficient for a reasonable fact finder to conclude Garner was armed with a deadly weapon, the post-conviction court is further ordered to enter a judgment of conviction for the class B felony and to sentence Garner accordingly.
MILLER, J., concurs.
SULLIVAN, J., dissents, with separate opinion.