Attorneys for Appellant Attorneys for Appellee
Brian C. Edington Steve Carter
Pro se Attorney General of Indiana
Michigan City, Indiana
Justin F. Roebel
Deputy Attorney General
Appeal from the Marshall Superior Court, No. 49G02-9407-CF-087433
The Honorable Robert O. Bowen, Judge
On Petition To Transfer from the Indiana Court of Appeals, No. 50A03-0212-PC-00448
April 20, 2004
In 2002, Edington sought post-conviction 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 attempted murder was not available to
him because we had yet to decide Bethel v. State, 730 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: [T]he 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)). See footnote
The post-conviction court denied Edingtons 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:
[T]he 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, 683 N.E.2d 227, 235 n.6 (Ind. 1997). It was wrong to grant relief on Edingtons fundamental error claim.
We thus affirm the post-conviction courts denial of relief.
Dickson, Boehm, and Rucker, JJ., concur.
Sullivan, J., concurs with separate opinion.
I concur in all respects. As the author of Williams, I feel
obligated to acknowledge that language in that opinion
1 seems inconsistent with other language
Williams quoted in todays opinion. To the extent they do conflict,
I agree that the interpretation given Williams by todays opinion is what the
author of Williams intended.