STATON, Judge.
James Terry appeals the denial of his Petition for Post Conviction Relief, raising five issues for our review:
I. Whether the trial court erred in failing to instruct the jury that it is the burden of the State to negate the presence of sudden heat beyond a reasonable doubt when the defendant raises the issue and offers proof.
II. Whether the trial court erred in refusing to instruct the jury on the defense of intoxication.
III. Whether the trial court gave erroneous instructions as to the crime of attempted murder.
IV. Whether Terry received ineffective assistance of trial counsel.
V. Whether Terry received ineffective assistance of appellate counsel.
We affirm.
In 1982, Terry was convicted pursuant to a jury trial of attempted murder. His conviction was affirmed upon direct appeal to our Supreme Court. Terry v. State (1984), Ind., 465 N.E.2d 1085. The facts surrounding the incident which gave rise to his conviction are set out in that reported opinion, and we will refer only to those facts necessary for the disposition of this second appeal.
The petitioner in a post-conviction proceeding bears the burden of establishing the grounds for relief by a preponderance of the evidence, and the post-conviction court is the sole judge of the evidence and the credibility of the witnesses. Grey v. State (1990), Ind., 553 N.E.2d 1196, 1197, rehearing denied. We will not reverse the judgment of the post-conviction court unless the evidence on this point is undisputed and leads unerringly to a result opposite to that reached by the trial court. Id.
The purpose of a petition for post-conviction relief is to raise issues not known at the time of the original trial and appeal or for some reason not available to [1303]*1303the defendant at that time. Id. Thus, post-conviction relief is not a “super-appeal” which allows the rehashing of prior proceedings regardless of the circumstances surrounding them. Id.
I.
Instruction on State’s Burden
Terry first contends that the trial court erred in failing to instruct the jury that the State bears the burden of negating the presence of sudden heat in an attempted homicide case where the defendant raises the issue. The failure to properly instruct the jury is an issue which was available to Terry on his direct appeal, and thus may not be raised upon a petition for post-conviction relief. Grey, supra, at 1198.
II.
Instruction on Intoxication
Terry next contends that the trial court erred in refusing his tendered instruction on the intoxication defense. Terry concedes that this issue was decided against him in his prior appeal, Terry, supra, at 1088, but argues that this issue should be reconsidered in light of our Supreme Court’s decision in Pavey v. State (1986), Ind., 498 N.E.2d 1195. In Pavey, the Supreme Court held that the judicial rule from Terry striking down the statute limiting the use of the intoxication defense had retroactive application. In so doing, the Court found that the defendant was entitled to a new trial due to the trial court’s refusal of Pavey’s tendered instruction on the intoxication defense.
Terry argues that the similarity between the facts of this case and those in Pavey entitle him to a new trial. His claim has no merit. The Supreme Court in Terry stated:
A defendant in Indiana can offer a defense of voluntary intoxication to any crime. The potential of this defense should not be confused with the reality of the situation. It is difficult to envision a finding of not guilty by reason of intoxication when the acts committed require a significant degree of physical or intellectual skills. As a general proposition, a defendant should not be relieved of responsibility when he was able to devise a plan, operate equipment, instruct the behavior of others or carry out acts requiring physical skill.
In the case at bar, evidence was produced to show that appellant had been drinking. However, evidence was also introduced to show he drove a car, gave directions to other people and made decisions on a course of action for himself. The trial court did not err in refusing to give the instruction as no reasonable doubt existed that the appellant had the intent to commit the act for which he was charged.
Id. at 1088. This issue was decided by Terry’s direct appeal, and therefore its reconsideration is foreclosed by the doctrine of res judicata. Grey, supra, at 1199.
III.
Instructions Relating To Attempted Murder
Terry argues that the trial court committed fundamental error in giving instructions 4 and 5, because those instructions allowed the jury to convict him of attempted murder without finding that he possessed the requisite specific intent to kill. He cites Abdul-Wadood v. State (1988), Ind., 521 N.E.2d 1299, rehearing denied.
In Abdul-Wadood, our Supreme Court reversed a conviction on the basis that the challenged instruction on attempted murder did not inform the jury that the substantial step toward the crime of murder must have been accompanied by a culpable state of mind. Id. at 1300. Thus, “[ajrmed with the information in [the] instruction^], the jury could rationally deem itself authorized to convict because it was convinced beyond a reasonable doubt that the accused deliberately engaged in ... conduct, in a series of developing events, which culminated in an enterprise carrying the death risk, even though there could have been no appreciation of that risk at the time of the [1304]*1304... conduct.” Id. at 1300-1301. Such is not the case here.
Instructions 4 and 5 read:
Court’s Instruction No. 4
This is a criminal case brought by the State of Indiana against the defendant, James B. Terry. The case was commenced when an information was filed charging the defendant with the crime of attempted murder. That information, omitting the formal parts, reads as follows: “On or about the 2nd day of May, 1981, in Tippecanoe County, State of Indiana, James B. Terry did attempt to commit the crime of murder by knowingly and intentionally stabbing and cutting Ferris Orange, Jr., about the head and chest, with a knife, causing serious bodily injury to Ferris Orange, Jr., which conduct constituted a substantial step towards the commission of the crime of murder; all of which is contrary to the form of the statutes in such cases made and provided, to-wit: Indiana Code 35-41-5-1 and 35-42-1-1, and against the peace and dignity of the State of Indiana.”
Court’s Instruction No. 5
Free access — add to your briefcase to read the full text and ask questions with AI
STATON, Judge.
James Terry appeals the denial of his Petition for Post Conviction Relief, raising five issues for our review:
I. Whether the trial court erred in failing to instruct the jury that it is the burden of the State to negate the presence of sudden heat beyond a reasonable doubt when the defendant raises the issue and offers proof.
II. Whether the trial court erred in refusing to instruct the jury on the defense of intoxication.
III. Whether the trial court gave erroneous instructions as to the crime of attempted murder.
IV. Whether Terry received ineffective assistance of trial counsel.
V. Whether Terry received ineffective assistance of appellate counsel.
We affirm.
In 1982, Terry was convicted pursuant to a jury trial of attempted murder. His conviction was affirmed upon direct appeal to our Supreme Court. Terry v. State (1984), Ind., 465 N.E.2d 1085. The facts surrounding the incident which gave rise to his conviction are set out in that reported opinion, and we will refer only to those facts necessary for the disposition of this second appeal.
The petitioner in a post-conviction proceeding bears the burden of establishing the grounds for relief by a preponderance of the evidence, and the post-conviction court is the sole judge of the evidence and the credibility of the witnesses. Grey v. State (1990), Ind., 553 N.E.2d 1196, 1197, rehearing denied. We will not reverse the judgment of the post-conviction court unless the evidence on this point is undisputed and leads unerringly to a result opposite to that reached by the trial court. Id.
The purpose of a petition for post-conviction relief is to raise issues not known at the time of the original trial and appeal or for some reason not available to [1303]*1303the defendant at that time. Id. Thus, post-conviction relief is not a “super-appeal” which allows the rehashing of prior proceedings regardless of the circumstances surrounding them. Id.
I.
Instruction on State’s Burden
Terry first contends that the trial court erred in failing to instruct the jury that the State bears the burden of negating the presence of sudden heat in an attempted homicide case where the defendant raises the issue. The failure to properly instruct the jury is an issue which was available to Terry on his direct appeal, and thus may not be raised upon a petition for post-conviction relief. Grey, supra, at 1198.
II.
Instruction on Intoxication
Terry next contends that the trial court erred in refusing his tendered instruction on the intoxication defense. Terry concedes that this issue was decided against him in his prior appeal, Terry, supra, at 1088, but argues that this issue should be reconsidered in light of our Supreme Court’s decision in Pavey v. State (1986), Ind., 498 N.E.2d 1195. In Pavey, the Supreme Court held that the judicial rule from Terry striking down the statute limiting the use of the intoxication defense had retroactive application. In so doing, the Court found that the defendant was entitled to a new trial due to the trial court’s refusal of Pavey’s tendered instruction on the intoxication defense.
Terry argues that the similarity between the facts of this case and those in Pavey entitle him to a new trial. His claim has no merit. The Supreme Court in Terry stated:
A defendant in Indiana can offer a defense of voluntary intoxication to any crime. The potential of this defense should not be confused with the reality of the situation. It is difficult to envision a finding of not guilty by reason of intoxication when the acts committed require a significant degree of physical or intellectual skills. As a general proposition, a defendant should not be relieved of responsibility when he was able to devise a plan, operate equipment, instruct the behavior of others or carry out acts requiring physical skill.
In the case at bar, evidence was produced to show that appellant had been drinking. However, evidence was also introduced to show he drove a car, gave directions to other people and made decisions on a course of action for himself. The trial court did not err in refusing to give the instruction as no reasonable doubt existed that the appellant had the intent to commit the act for which he was charged.
Id. at 1088. This issue was decided by Terry’s direct appeal, and therefore its reconsideration is foreclosed by the doctrine of res judicata. Grey, supra, at 1199.
III.
Instructions Relating To Attempted Murder
Terry argues that the trial court committed fundamental error in giving instructions 4 and 5, because those instructions allowed the jury to convict him of attempted murder without finding that he possessed the requisite specific intent to kill. He cites Abdul-Wadood v. State (1988), Ind., 521 N.E.2d 1299, rehearing denied.
In Abdul-Wadood, our Supreme Court reversed a conviction on the basis that the challenged instruction on attempted murder did not inform the jury that the substantial step toward the crime of murder must have been accompanied by a culpable state of mind. Id. at 1300. Thus, “[ajrmed with the information in [the] instruction^], the jury could rationally deem itself authorized to convict because it was convinced beyond a reasonable doubt that the accused deliberately engaged in ... conduct, in a series of developing events, which culminated in an enterprise carrying the death risk, even though there could have been no appreciation of that risk at the time of the [1304]*1304... conduct.” Id. at 1300-1301. Such is not the case here.
Instructions 4 and 5 read:
Court’s Instruction No. 4
This is a criminal case brought by the State of Indiana against the defendant, James B. Terry. The case was commenced when an information was filed charging the defendant with the crime of attempted murder. That information, omitting the formal parts, reads as follows: “On or about the 2nd day of May, 1981, in Tippecanoe County, State of Indiana, James B. Terry did attempt to commit the crime of murder by knowingly and intentionally stabbing and cutting Ferris Orange, Jr., about the head and chest, with a knife, causing serious bodily injury to Ferris Orange, Jr., which conduct constituted a substantial step towards the commission of the crime of murder; all of which is contrary to the form of the statutes in such cases made and provided, to-wit: Indiana Code 35-41-5-1 and 35-42-1-1, and against the peace and dignity of the State of Indiana.”
Court’s Instruction No. 5
The defendant has entered a plea of not guilty and the burden rests upon the State of Indiana to prove to each of you, beyond a reasonable doubt, every essential element of the crime charged.
The charge which has been filed is the formal method of bringing the defendant to trial.
The fact that a charge has been filed, the defendant arrested and brought to trial is not to be considered by you as any evidence of guilt.
Record, pp. 101-102.
Instruction 5 is a correct statement of the law. Instruction 4 merely purported to recite the terms of the charging information. It did not seek to instruct the jury on the law applicable to the case. Although any deficiencies in the information might at one time have been attacked, Terry, supra, at 1086-1087, its ostensible misstatement of the law does not taint the conviction.
An error in an instruction is not grounds for reversal unless the error is of such a nature that the entire charge of’which it is part misled the jury on the law applicable to the case. Jester v. State (1990), Ind., 551 N.E.2d 840. The jury was properly instructed on the requisite elements of the crimes of murder and attempt as follows:
Court’s Instruction No. 6
The crime of murder is defined by statute as follows: A person who knowlingly [sic] and intentionally kills another human being commits murder, a felony.
Court’s Instruction No. 7
The crime of attempt is defined by statute as follows: A person attempts to commit a crime when, acting with culpability required for commission of a crime, he engages in conduct that constitutes a substantial step toward commission of the crime. An attempt to commit murder is a Class A felony.
Record, pp. 103-104 (emphasis added).
These instructions, which purported to state the law applicable to the case, correctly apprised the jury that a specific intent to kill was required to convict Terry of attempted murder.
IV.
Ineffective Assistance of Trial Counsel
Terry next contends that he was the victim of ineffective trial counsel in that his attorney did not develop the victim’s propensity for violence, did not call any witnesses recommended by Terry, did not move for a mistrial when it was discovered that one juror had applied for a job at the prosecutor’s office and was dismissed before the verdict, and failed to object to instructions 4 or 5 or tender instructions regarding intent, culpability, or the burden of the state to negate sudden heat beyond a reasonable doubt.
In deciding Terry’s direct appeal, the Supreme Court set out the standard of review upon a claim of ineffective assistance of counsel:
There is a strong presumption of competence on the part of counsel. This presumption is overcome only by strong and convincing evidence. Priest v. State, [1305]*1305(1983) Ind., 449 N.E.2d 602. The requirement is one of adequate legal representation. Dillin v. State, (1983) Ind., 448 N.E.2d 21. Isolated poor strategy, bad tactics, a mistake, carelessness or inexperience do not necessarily amount to ineffective counsel unless, taken as a whole the defense was inadequate. Holton v. State, (1980) 272 Ind. 439, 398 N.E.2d 1273.
Terry’s first three allegations were raised on direct appeal of this case to the Indiana Supreme Court. Terry, supra, at 1089. Thus, he may not raise them again in his petition for post-conviction relief. Grey, supra.
In Issue III, we held that the jury was properly instructed as to the culpability required for attempted murder. Thus, Terry’s fourth contention of ineffective assistance of counsel has no merit.
Finally, the decision not to tender an instruction on the burden of the State regarding voluntary manslaughter was a tactical decision. Terry’s principal defense at trial was self-defense. Certainly, in light of the circumstances, it was reasonable for Terry’s trial counsel to present that defense to the jury as the theory of Terry’s case. Although in retrospect it is possible that an instruction on the State’s burden may have influenced the jury to find Terry guilty of attempted voluntary manslaughter rather than attempted murder, Terry’s trial attorney testified at the post-conviction hearing that the best possibility would be acquittal on the theory of self-defense, rather than a lesser conviction. Reasonable strategy is not subject to judicial second guesses. Burr v. State (1986), Ind., 492 N.E.2d 306, 309.
We do not find that any one of these allegations constituted ineffective assistance of counsel, nor do we find that an accumulation of the alleged errors constituted ineffective assistance.
V.
Ineffective Assistance of Appellate Counsel
Terry contends that his appellate counsel was ineffective upon Terry’s direct appeal because he only devoted one page of the appellate brief to the issue of ineffective assistance of trial counsel. We note that the important consideration is that the alleged errors were raised, not the form in which they were presented. We will not second guess the extent to which appellate counsel chooses to discuss an issue in his brief. Harrington v. State (1984), Ind., 459 N.E.2d 369, 373. Certainly, the brief was an adequate vehicle to present the issue to the Supreme Court, because it was addressed in arriving at the decision upon appeal. Terry, supra, at 1089.
Affirmed.
BUCHANAN, J., concurs.
SULLIVAN, J., dissents with separate opinion.