MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Dec 15 2017, 7:31 am
court except for the purpose of establishing
                                                                              CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
estoppel, or the law of the case.                                              and Tax Court




APPELLANT, PRO SE                                        ATTORNEYS FOR APPELLEE
Jason Eichelberger                                       Curtis T. Hill, Jr.
Carlisle, Indiana                                        Attorney General of Indiana
                                                         Jodi Kathryn Stein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jason Eichelberger,                                      December 15, 2017
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         49A04-1602-PC-395
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Kurt M. Eisgruber,
Appellee-Defendant.                                      Judge
                                                         Trial Court Cause No.
                                                         49G01-9908-PC-143245



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1602-PC-395 | December 15, 2017           Page 1 of 9
                                       Statement of the Case
[1]   Jason Eichelberger (“Eichelberger”) appeals the denial of his petition for post-

      conviction relief. Finding no error, we affirm the post-conviction court’s denial

      of Eichelberger’s petition.


[2]   We affirm.


                                                     Issue
              The sole issue for our review is whether the post-conviction court
              erred in denying Eichelberger’s petition for post-conviction relief.


                                                     Facts
[3]   The underlying facts in this case, taken from the Indiana Supreme Court’s

      opinion in Eichelberger’s first direct appeal, are as follows:


              [O]n August 17, 1999, James Beasley, Michael Gullett, and the
              defendant were socializing in the back yard of a residence on
              East Minnesota Street in Indianapolis. A fight broke out among
              them, alerting bystanders, who observed Beasley on the ground,
              and the defendant, holding a knife, standing over him. One
              bystander called out, “I can’t believe you’re going to kill him in
              front of two witnesses,” and Beasley escaped. He started
              running, followed by Gullett and the defendant, who still had the
              knife in hand. The chase ended two blocks away, when Beasley
              tripped. Gullett was the first to reach him, and knocked him
              back down as he attempted to rise. The defendant then caught
              up, and said, “You made me bleed. [N]ow, [expletive deleted],
              you’re going to bleed.” He put his left arm around Beasley’s
              neck and underneath his arm, and stabbed Beasley in the chest
              with the knife. As Gullett and the defendant ran away, Beasley


      Court of Appeals of Indiana | Memorandum Decision 49A04-1602-PC-395 | December 15, 2017   Page 2 of 9
              went to a nearby house for help but died of the stab wound,
              which had punctured his lung and the left ventricle of his heart.


      Eichelberger v. State, 773 N.E.2d 264, 266 (Ind. 2002) (record citations omitted).


[4]   The State charged Eichelberger with murder. During Eichelberger’s 2000 trial,

      trial counsel tendered an instruction on voluntary manslaughter, which the trial

      court gave over the State’s objection. The jury convicted Eichelberger as

      charged, and the trial court sentenced him to fifty-five (55) years. On direct

      appeal, Eichelberger challenged the sufficiency of the evidence supporting his

      conviction. The Indiana Supreme Court concluded that the evidence was

      sufficient to support Eichelberger’s conviction and affirmed it. Id.


[5]   Eichelberger later filed a petition for post-conviction relief arguing that his trial

      counsel was ineffective because counsel had “tendered a flawed instruction on

      voluntary manslaughter and failed to ensure that the jury was properly

      instructed as to the elements of murder.” (First Post-Conviction App. 47). The

      post-conviction court denied Eichelberger’s petition. However, this Court

      reversed the denial of the petition after concluding that Eichelberger’s counsel

      had “failed to ensure that the jury was properly instructed that the absence of

      sudden heat is an element of murder on which the State bears the burden of

      proof.” Eichelberger v. State, 852 N.E.2d 631, 639 (Ind. Ct. App. 2006), trans.

      denied. On remand, the trial court vacated Eichelberger’s conviction and

      ordered a new trial.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1602-PC-395 | December 15, 2017   Page 3 of 9
[6]   Eichelberger’s second jury trial began in May 2007. Eichelberger testified that,

      on the day of Beasley’s murder, he wanted to get high so he began huffing a

      substance called toluene. Eichelberger testified that the toluene affected him

      “dramatically” and that it caused his mind to feel like it was “all over the

      place.” (Second Trial Tr. 459-60). At the close of the evidence, the trial court

      informed the parties that it was including a final jury instruction on voluntary

      intoxication that provided as follows:


              Voluntary intoxication is not a defense to a charge of Murder.
              You may not take voluntary intoxication into consideration in
              determining whether the defendant acted intentionally,
              knowingly, [or] recklessly as alleged in the information.


      (Second Appeal App. 222). Eichelberger’s counsel did not object to the

      instruction. The jury convicted Eichelberger of murder, and the trial court

      sentenced him to fifty-five (55) years.


[7]   In his second direct appeal, Eichelberger argued that the trial court had abused

      its discretion by giving the voluntary intoxication instruction. Because

      Eichelberger’s trial counsel had not objected to the instruction and did not

      argue on appeal that the giving of the instruction constituted fundamental error,

      we concluded that the issue was waived. Eichelberger v. State, No. 49A04-0706-

      CR-331, slip op. at 2 (Ind. Ct. App. February 8, 2008).


[8]   We further concluded that, waiver notwithstanding, the trial court did not err

      by instructing the jury on voluntary intoxication because the instruction was a



      Court of Appeals of Indiana | Memorandum Decision 49A04-1602-PC-395 | December 15, 2017   Page 4 of 9
       correct statement of the law supported by evidence in the record. Id. We

       specifically explained as follows:


                Here, the trial court did not err by instructing the jury on
                voluntary intoxication because the instruction was a correct
                statement of the law supported by evidence in the record.
                Indiana Code Ann. § 35–41–3–5 (West, PREMISE through 2007
                1st Regular Sess.) explains that intoxication is only a defense if
                the intoxication results from the introduction of a substance into
                the defendant’s body (1) without his consent; or (2) when he did
                not know that the substance might cause intoxication.
                Eichelberger testified that on the day he stabbed Beasley he
                wanted to get high so he huffed toluene. Eichelberger does not
                assert that the introduction of the toluene into his body was
                without his consent or that he did not know the toluene would
                cause intoxication. Therefore, the trial court properly instructed
                the jury that in this case Eichelberger’s voluntary intoxication
                was not a defense to the charge of murder.


       Id. Accordingly, we affirmed Eichelberger’s murder conviction. Id.


[9]    Thereafter, Eichelberger filed an amended petition for post-conviction relief in

       July 2011 wherein he argued that trial counsel was ineffective because he had

       failed to object to the jury instruction on voluntary intoxication. Eichelberger

       also argued that appellate counsel was ineffective because she had failed to

       argue that the giving of the voluntary intoxication instruction was fundamental

       error.


[10]   Following a hearing, the post-conviction court issued a detailed order denying

       Eichelberger’s petition. Eichelberger appeals the denial of his post-conviction

       petition.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1602-PC-395 | December 15, 2017   Page 5 of 9
                                                   Decision
[11]   At the outset, we note that Eichelberger proceeds pro se. A litigant who

       proceeds pro se is held to the same rules of procedure that trained counsel is

       bound to follow. Smith v. Donahue, 907 N.E.2d 553, 555 (Ind. Ct. App. 2009),

       trans. denied, cert. dismissed. One risk a litigant takes when he proceeds pro se is

       that he will not know how to accomplish all the things an attorney would know

       how to accomplish. Id. When a party elects to represent himself, there is no

       reason for us to indulge in any benevolent presumption on his behalf or to

       waive any rule for the orderly and proper conduct of his appeal. Foley v.

       Mannor, 844 N.E.2d 494, 502 (Ind. Ct. App. 2006).


[12]   We now turn to the merits of Eichelberger’s argument that the post-conviction

       court erred in denying his petition. Defendants who have exhausted the direct-

       appeal process may challenge the correctness of their convictions and sentences

       by filing a petition for post-conviction relief. Stevens v. State, 770 N.E.2d 739,

       745 (Ind. 2002), reh’g denied. Post-conviction proceedings are not an

       opportunity for a “super-appeal,” and not all issues are available. Timberlake v.

       State, 753 N.E.2d 591, 597 (Ind. 2001), reh’g denied. Rather, subsequent

       collateral challenges to convictions must be based on grounds enumerated in

       the post-conviction rules. Ind. Post-Conviction Rule 1(1); Timberlake, 753

       N.E.2d at 597. In post-conviction proceedings, complaints that something went

       awry at trial are 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).

       Court of Appeals of Indiana | Memorandum Decision 49A04-1602-PC-395 | December 15, 2017   Page 6 of 9
[13]   Post-conviction proceedings are civil proceedings, requiring the petitioner to

       prove his claims by a preponderance of the evidence. Stevens, 770 N.E.2d at

       745. We review the post-conviction court’s legal conclusions de novo but accept

       its factual findings unless they are clearly erroneous. Id. at 746. We will not

       reweigh the evidence or judge the credibility of the witnesses; we examine only

       the probative evidence and reasonable inferences that support the decision of

       the post-conviction court. Stephenson v. State, 864 N.E.2d 1022, 1031 (Ind.

       2007), reh’g denied. The petitioner must establish that the evidence as a whole

       leads unerringly and unmistakably to a decision opposite that reached by the

       post-conviction court. Smith v. State, 770 N.E.2d 290, 295 (Ind. 2002).


[14]   A defendant claiming that his attorney was ineffective must show by a

       preponderance of the evidence that: (1) counsel’s performance fell below the

       objective standard of reasonableness based on “prevailing” professional norms;

       and (2) the defendant was prejudiced by this substandard performance, i.e.,

       there is a “reasonable probability” that, but for counsel’s errors or omissions,

       the outcome of the case would have been different. Stephenson, 864 N.E.2d at

       1031.


[15]   Here, Eichelberger argues that trial counsel was ineffective because he failed to

       object to the voluntary intoxication instruction and that appellate counsel was

       ineffective because she failed to argue that the giving of the voluntary

       intoxication constituted fundamental error. The State responds that these

       arguments are barred by the doctrine of res judicata. We agree with the State.



       Court of Appeals of Indiana | Memorandum Decision 49A04-1602-PC-395 | December 15, 2017   Page 7 of 9
[16]   As a general rule, when a reviewing court decides an issue on direct appeal, the

       doctrine of res judicata applies. Jervis v. State, 28 N.E.3d 361, 368 (Ind. Ct. App.

       2015), trans, denied. The doctrine of res judicata prevents the repetitious litigation

       of that which is essentially the same dispute. Id. A post-conviction petitioner

       cannot escape the effect of claim preclusion merely by using different language

       to phrase an issue and define the alleged error. Id. Where an issue, although

       differently designated, was previously considered and determined in a criminal

       defendant’s direct appeal, the State may defend against the defendant’s post-

       conviction relief petition on grounds of prior adjudication or res judicata. Id.


[17]   In his second direct appeal, Eichelberger argued that the trial court had abused

       its discretion by giving the voluntary intoxication instruction. This Court found

       that the issue was waived because trial counsel had not objected to the issue and

       because appellate counsel had not argued that the giving of the instruction was

       fundamental error. Eichelberger, No. 49A04-0706-CR-331, slip op. at 2.

       However, we further concluded that waiver notwithstanding, the trial court had

       not abused its discretion because the instruction was a correct statement of the

       law supported by evidence in the record. Id. Because Eichelberger’s claim of

       instructional error was fully litigated in his second direct appeal, his effort to

       redesignate and repackage it as ineffective assistance of trial and appellate

       counsel claims is barred by res judicata. See Jervis, 28 N.E.3d at 368-69.

       Accordingly, the post-conviction court did not err in denying Eichelberger’s

       petition.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1602-PC-395 | December 15, 2017   Page 8 of 9
[18]   Affirmed.


[19]   May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1602-PC-395 | December 15, 2017   Page 9 of 9
