HENRY G. EMERSON,
    Appellant (Defendant below),

    v.

STATE OF INDIANA,
    Appellee (Plaintiff below).

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)    Supreme Court No.
)    49S02-9703-PC-190
)
)    Court of Appeals No.
)    49A02-9601-PC-00061    
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    The Court of Appeals reversed a trial court's denial of Henry G. Emerson's petition for post-conviction relief. Having granted transfer, we affirm the post-conviction court.

    A jury convicted Emerson of two counts of BatterySee footnote 1 and, in a separate proceeding, adjudicated him to be a Habitual Offender.See footnote 2 The trial court sentenced Emerson to a term of thirty-five years: five years for class C felony Battery, plus a thirty year enhancement for the Habitual Offender conviction, and a six month concurrent sentence for class B misde meanor Battery. This Court affirmed Emerson's convictions and sentence. Emerson v. State, 539 N.E.2d 5 (Ind. 1989). On February 14, 1995, Emerson filed an amended petition for post-conviction relief, which the trial court denied on October 3, 1995. On appeal, the Court of Appeals held that the trial court's jury instruction on Battery impermissibly deviated from the charges filed against Emerson, reversed Emerson's convictions and sentence for class C felony Battery and Habitual Offender, and remanded for retrial.

Emerson v. State, 675 N.E.2d 721 (Ind. Ct. App. 1996). The State petitioned this Court for transfer, which we granted on March 11, 1997.
    

    At the trial on his petition for post-conviction relief, Emerson had the burden of establishing any grounds for relief by a preponderance of the evidence. Ind.Post_Conviction Rule 1(5). To the extent the post-conviction court denied relief, Emerson appeals from a negative judgment, and must convince the appeals court that the evidence as a whole led unerringly and unmistakably to a decision opposite that reached by the trial court. Spranger v. State, 650 N.E.2d 1117, 1119 (Ind. 1995) (citing Williams v. State, 508 N.E.2d 1264, 1265 (Ind. 1987); Lowe v. State, 455 N.E.2d 1126, 1128 (Ind. 1983)). Only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion, will the reviewing court disturb the decision as being contrary to law. Spranger, 650 N.E.2d at 1120 (quoting

Fleenor v. State, 622 N.E.2d 140, 142 (Ind. 1993), cert. denied, 513 U.S. 999 (1994)).

    (T.R. at 112; 134 (emphasis added).)See footnote 4

    The Court of Appeals found that this instruction impermissibly deviated from the charge of class C felony Battery filed against Emerson. Emerson, 675 N.E.2d at 726 (overly broad instruction permitted jury to convict defendant of crime not properly charged). The charging information read as follows:See footnote 5

    . . . HENRY G. EMERSON, on or about the 25th day of July, A.D. 1986, at and in the County of Marion and the State of Indiana, did knowingly touch LYNN BROWN in a rude, insolent or angry manner, to-wit: STRUCK, STABBED AND CUT LYNN BROWN, by means of deadly weapons, to-wit: STICKS AND A KNIFE . . . .

    (T.R. at 15 (emphasis added).)

    In reaching this decision, the Court of Appeals relied heavily on Kelly v. State, 535 N.E.2d 140 (Ind. 1989). In Kelly, the defendant was charged with non-consensual criminal confinement, but the court instructed the jury on the statutory definition of criminal confine ment, which includes both non-consensual criminal confinement and criminal confinement by removal. 535 N.E.2d at 141. The jury convicted the defendant on a general verdict. On appeal, this Court reversed, holding that the jury instruction constituted prejudicial error because it was impossible to tell on which charge the jury had convicted the defendant.

    This Court recently distinguished the Kelly holding from a situation almost identical to Emerson's in Potter v. State, 684 N.E.2d 1127 (Ind. 1997),See footnote 6 noting that the crux of our decision in Kelly was that the State had not tendered evidence sufficient to prove the crime

of confinement as charged, but had offered evidence tending to prove the crime as errone ously instructed. In Potter, this noticeable disparity between the evidence presented and the crime as charged was lacking, and we commented that a finding of prejudicial error requires more than an overly broad jury instruction. 684 N.E.2d at 1132. Prejudice requires harm to the defendant, for example, by misleading the jury as to the applicable law. Dixon v. State, 425 N.E.2d 673, 678 (Ind. Ct. App. 1981). There is no prejudicial error if the jury is instructed expressly on the charge against the defendant, and the State offers evidence to prove that charge. Evans v. State, 571 N.E.2d 1231, 1235 (Ind. 1991); Dixon, 425 N.E.2d at 678 (also noting that State did not tender proof to support uncharged crime). See McIntosh v. State, 638 N.E.2d 1269, 1275 (Ind. Ct. App. 1994), trans. denied. Nor is there prejudice if the jury is aware it can convict the defendant only upon the crime as charged. McIntosh, 638 N.E.2d at 1275; Dixon, 425 N.E.2d at 678. See Evans, 571 N.E.2d at 1235.

    Emerson's situation is much more like Potter than like Kelly. While Emerson correctly argues that the jury instruction on Battery exceeded the scope of the crime as charged, and that the State presented evidence supporting the uncharged crime, i.e., battery resulting in serious bodily injury, it is also true that the State presented sufficient evidence to prove Emerson committed battery with a deadly weapon. Lynn Brown, Emerson's victim, testified on behalf of the State that Emerson beat him with sticks or "tree limbs." Emerson does not dispute this fact, nor does he challenge the characterization of "tree limbs" as deadly weapons. Furthermore, the definition of "deadly weapon" on which the

jury was instructed includes the concept of "serious bodily injury:"
    I instruct you that under the law of Indiana, a "deadly weapon" means: (1) A loaded or unloaded firearm; or (2) A weapon, device, equipment, chemical substance or other material that in the manner it is used or could be used, or is intended to be used, is readily capable of causing serious bodily injury.

    (T.R. at 115; 137 (emphasis added).)

Therefore, evidence tending to prove that Emerson used an instrument readily capable of inflicting serious bodily injury was necessary to prove that Emerson used a deadly weapon when he battered Lynn.

    Moreover, we will find fundamental error in the giving of instructions only if the instructions read together as a whole fail to alleviate any harm that might have occurred from one erroneous instruction. Dixon, 425 N.E.2d at 678. Here, the court instructed the jury on the charges of Battery filed against Emerson; this instruction did not include a charge of Battery resulting in serious bodily injury. The court instructed the jury on the definition of a deadly weapon, which included the concept of serious bodily injury, but not on the definition of serious bodily injury itself. Unlike the jury in Kelly, which received a general verdict form, the jury here received a verdict form which properly delineated the charge of battery.See footnote 7 Most importantly, the trial court instructed the jury that it was not to consider any single instruction by itself, but that it should consider all instructions together

as a whole.See footnote 8 See Dixon, 425 N.E.2d at 678.

    We find that, although the instruction on Battery exceeded the scope of the crime with which Emerson was charged, giving it did not constitute fundamental error. Emerson has not demonstrated that without that instruction, the jury would not have convicted him of class C felony Battery. As such, we hold that the Court of Appeals erred in reversing Emerson's convictions and sentence on this claim and affirm the post-conviction court on this issue.

    Emerson argues that the sentencing judge erroneously believed the thirty year habitual offender enhancement was mandatory and did not know he could reduce Emerson's

enhancement by up to ten years.See footnote 9

    Ind. Code § 35-50-2-8 provides for a mandatory habitual offender enhancement of up to thirty years when the State proves beyond a reasonable doubt that the defendant has been convicted of two prior unrelated felonies. Ind. Code § 35-50-2-8 (1982 & Supp. 1985). The statute further provides that the sentencing court may reduce the thirty year enhancement by up to ten years if one of the defendant's prior convictions was a class D felony. Ind. Code § 35-50-2-8(e). In this case, the State proved beyond a reasonable doubt that Emerson had accumulated two prior felony convictions:See footnote 10 a 1979 conviction for Robbery, a class B felony, and a 1984 conviction for Theft, a class D felony.

    Emerson refers us to two statements made by the trial judge during sentencing which he contends indicate the judge's unawareness of the availability of the ten year reduction. At the sentencing hearing, in response to a statement by Emerson's mother that she believed it was wrong for the court "to give him, you know, a whole lots of time for a habitual," the judge said: "Well, that's what the legislature says, you know." (T.R. at 862.) Later, upon imposing the sentence, the judge stated: ". . . and because of the finding of you being an

habitual offender, the statutory sentence of thirty years sentencing enhancement, which will be consecutive to Counts II and III . . . ." (T.R. at 865-66.)

    We presume that our trial judges are aware of and know the law. Boone County REMC v. Layton, 664 N.E.2d 735, 739 (Ind. Ct. App. 1996) (citing Scott v. State, 632 N.E.2d 761, 768 (Ind. Ct. App. 1994)), trans. denied. While both of the above statements indicate an intent to impose an undisturbed thirty year enhancement, neither statement overtly demonstrates ignorance of the law. In further support of his claim, Emerson pro vided the post-conviction court with affidavits from Lynn Brown, and the trial court judge. Lynn Brown stated that he would not have opposed Emerson's receiving a twenty year habitual offender enhancement. The trial judge testified that he could not remember Emer son's case or whether or not he was aware at that time of the availability of the ten year reduction. These statements do not suffice to prove actual ignorance or disregard of the law.

    Furthermore, whether or not to reduce the thirty-year enhancement rests within the discretion of the trial court. See Elliott v. State, 541 N.E.2d 942, 944 (Ind. 1989) (finding ten year reduction purely discretionary with trial court); cf. Garrett v. State, 602 N.E.2d 139, 142 (Ind. 1992) (remanding for resentencing where state conceded that trial court errone ously believed it had no discretion to reduce habitual offender enhancement). Emerson has not proved that the trial judge did anything other than exercise his discretion in sentencing, and we cannot conclude that the post-conviction court reached an incorrect result in denying

Emerson's claim for post-conviction relief on this basis given the evidence before it.

    A petitioner claiming ineffective assistance of counsel or ineffective assistance of appellate counsel must show both deficient performance and resulting prejudice. The failure

to establish either prong will cause the claim to fail. And where the petitioner claims that appellate counsel was ineffective for failing to argue on direct appeal the ineffective assis tance of trial counsel, he or she must establish both deficient performance and resulting prejudice on the part of both trial counsel and appellate counsel. Conversely, the failure to establish either prong with respect to either trial or appellate counsel will cause the entire claim to fail. Roche v. State, 690 N.E.2d 1115, 1120 (Ind. 1997), reh'g denied. Here, the post-conviction court concluded:
[P]etitioner was not denied the effective assistance of appellate counsel. The evidence before this Court demonstrates that counsel performed competently and effectively. . . . The Court cannot conclude that appellate counsel was ineffective for failure to allege trial counsel's ineffectiveness.1

(R. at 108-109.)

felony convictions; (3) trial counsel failed to preserve meritorious issues for appellate review; and (4) trial counsel's performance prejudiced Emerson before the jury. Emerson's first two claims of ineffective assistance of trial counsel duplicate the claims addressed in Parts I and II, supra. To the extent we addressed them previously, we decline to do so again here. Emerson has provided in support of this claim of ineffectiveness an affidavit from his trial counsel.

    (R. at 120.)
We are unable to divine a cogent reason for failing to alert the trial court of this sentencing option, but nonetheless do not believe counsel was ineffective. The post-conviction court stated that "in light of the petitioner's lengthy criminal history, [it] could not conclude that the trial court might have reduced the petitioner's sentence enhancement under the habitual offender statute if a stronger argument had been made to do so." (R. at 109.) We presume

that the trial court knows the law, and Emerson has not provided this Court with evidence demonstrating the contrary. Thus, having determined that Emerson failed to prove (1) the trial court was unaware of the ten year discretionary reduction to the habitual offender enhancement, and (2) the outcome would have been different had trial counsel informed the court of the available reduction, we affirm the post-conviction court and find Emerson suffered no prejudice from counsel's failure to bring the sentencing option to the attention of the trial court.

    (R. at 120.)

    The instruction on Battery, although broader than the charging information filed against Emerson, correctly stated the statutory definition of class C felony Battery. And for the reasons discussed in Part I, supra, we find that even if trial counsel's failure to object to

the instruction constituted deficient performance, Emerson was not prejudiced thereby. Emerson did not receive ineffective assistance of trial counsel in this regard.

    With respect to trial counsel's failure to object to instructions given during the habitual offender phase of Emerson's trial, Emerson does not recite the allegedly erroneous instruction, nor cite to those portions of the record containing the relevant instructions, nor does he provide authority in direct support of his position. See Ind.Appellate Rule 8.3(A)(7) ("When error is predicated on the giving or refusing of any instruction, the instruction shall be set out verbatim in the argument section of the brief[.]"). Emerson's failure to do so here waives our consideration of this claim.

    (R. at 121.)

Because we otherwise find no ineffective assistance on the part of trial counsel, we cannot

conclude that counsel was ineffective for failing to make these arguments in such a motion.

must establish both deficient performance and resulting prejudice on the part of both trial and appellate counsel. The failure to establish either prong with respect to either trial or appellate counsel voids the claim. See Roche, 690 N.E.2d at 1120. Having already deter mined that Emerson did not receive ineffective assistance of trial counsel, we conclude that appellate counsel's performance was not deficient for failing to argue the ineffectiveness of trial counsel.

SHEPARD, C.J., and DICKSON, SELBY, and BOEHM, JJ., concur.

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