 ATTORNEYS FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
 Susan D. Rayl                                               Gregory F. Zoeller
 Smith Rayl Law Office, LLC                                  Attorney General of Indiana
 Indianapolis, Indiana                                       Indianapolis, Indiana

 Ruth A. Johnson                                             Cynthia L. Ploughe
 Marion County Public Defender Agency                        Larry D. Allen
 Indianapolis, Indiana                                       Stephen R. Creason
                                                             Deputy Attorneys General
                                                             Indianapolis, Indiana


_____________________________________________________________________________


                                            In the
                              Indiana Supreme Court                      Feb 11 2015, 1:20 pm

                               _________________________________

                                    No. 49S02-1502-CR-69

       BRANDON BRUMMETT,                                            Appellant (Defendant),

                                                   v.

       STATE OF INDIANA,                                            Appellee (Plaintiff).

                              _________________________________

             Appeal from the Marion Superior Court, No. 49G02-1206-FB-42411
                        The Honorable Marc T. Rothenberg, Judge
                          _________________________________

           On Transfer from the Indiana Court of Appeals, No. 49A02-1304-CR-378
                          _________________________________

                                        February 11, 2015

Dickson, Justice.


       We grant transfer in this case to prevent a potential misunderstanding of Indiana's
fundamental error doctrine.
       The Court of Appeals issued its decision in this case one day before we issued our
opinion in Ryan v. State, 9 N.E.3d 663 (Ind. 2014). In each case, the principal issue was whether
the prosecutor engaged in prosecutorial misconduct and, if so, whether the claim was
procedurally defaulted due to defense counsel's failure to raise a timely objection at trial, or
whether reversal should result under the doctrine of fundamental error. In Ryan, we affirmed the
convictions, finding that the defendant failed to contemporaneously object to the prosecutorial
misconduct and that the prosecutor's misconduct did not warrant our application of the doctrine
of fundamental error. In the present case, the Court of Appeals reversed several convictions,
finding prosecutorial misconduct and concluding that its cumulative effect amounted to
fundamental error, thus precluding procedural default. Brummett v. State, 10 N.E.3d 78 (Ind. Ct.
App. 2014). On rehearing, the Court of Appeals reaffirmed its decision, finding that "the
prosecutorial misconduct present in this case was much more egregious than that in Ryan" and
concluding that "the prosecutor's misconduct did amount to fundamental error under the
standard now to be used," thereby implying that Ryan may have created a new fundamental error
standard. Brummett v. State, 21 N.E.3d 840 (Ind. Ct. App. 2014) (emphasis added).


       Ryan did not alter the doctrine of fundamental error. It simply restated and applied the
longstanding standard. Except for the rehearing opinion's implication to the contrary, Brummett
likewise applied the existing doctrine of fundamental error. With the exception of the rehearing
opinion's potentially misleading reference to "the standard now to be used," id. (emphasis added),
we summarily affirm. Ind. Appellate Rule 58(A)(2). 1


Rush, C.J., and Rucker, David, and Massa, JJ., concur.




       1
          Appellate Rule 58(A)(2) authorizes the Supreme Court to summarily affirm "opinions or
portions thereof."

                                                  2
