Minor v. State

790 N.E.2d 437, 2003 Ind. LEXIS 534, 2003 WL 21458322

Opinion

ORDER

Thomas Minor is appealing the denial of post-conviction relief. He claims his appellate lawyer on direct appeal was ineffective for fading to raise on appeal the propriety of Minor’s being tried by a six-person jury, in violation of Ind.Code § 35-37-1-1. The Court of Appeals affirmed the denial of post-conviction relief. Minor v. State, 782 N.E.2d 459 (Ind.Ct.App.2003), reh’g denied.

The Court of Appeals determined that the performance of Minor’s appellate lawyer was deficient, but held that reversal is unwarranted because Minor has not shown that his conviction was fundamentally unfair or -unreliable. 782 N.E.2d at 462, citing Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993), and Williams v. State, 706 N.E.2d 149, 154 (Ind.1999). As the State conceded on rehearing, however, the analysis of the Court of Appeals failed to take into account the more recent cases of Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), and Segura v. State, 749 N.E.2d 496 (Ind.2001).

In accordance with Ind. Appellate Rule 58(A), we grant transfer of jurisdiction, vacate the opinion of the Court of Appeals, and remand to the Court of Appeals for reconsideration of its analysis in light of this more recent authority.

All Justices concur.